Law Times

Law Times • may 12, 2014 Page 15 www.lawtimesnews.com construction contracts were to be held in trust under Construc- tion Lien Act (Ont.) (CLA). De- fendants had not commenced any bankruptcy proceedings or taken any steps under Bankrupt- cy and Insolvency Act (Can.) (BIA). Defendants intimated that they might eventually do so. Plaintiffs sought declaration that stay did not operate under s. 69.3 of BIA. Declaration denied. Defendants were not trustees for plaintiff under CLA and rela- tionships were not analogous to case law. Fraud was not pleaded or proved. Misappropriation was not shown. Court ought not to make ruling regarding claim or judgment surviving bank- ruptcy in advance of any actual bankruptcy. Bridgmohan v. 2218667 Ontario Ltd. (Jan. 22, 2014, Ont. S.C.J., E.M. Morgan J., File No. CV-12- 454013) 237 A.C.W.S. (3d) 97. Civil Procedure DISCOVERY Disclosure of information under- lying report not dependent on whether expert would testify City brought motion for produc- tion of files of all experts whom plaintiffs proposed to testify on liability plus file of life care plan- ner whose evidence would cen- tre on future care costs. Plaintiffs were willing to produce files on condition that city be required to do same. City agreed to do so with exception of its life care planner because it was uncer- tain as to whether it would call her as witness. Plaintiff brought motion for production of file of city's life planner. Motion dis- missed with respect to entire file of city's life planner. Entire file did not need to be produced, but fundamental information un- derlying report of city's life plan- ner was to be produced whether or not she would testify. Disclo- sure of foundational informa- tion underlying expert's report was not dependent on whether expert would testify. City did not give undertaking that it would not call its life planner as witness and served her report on plaintiffs. Service of report constituted waiver of litigation privilege. Even if city wished to give undertaking that it was not going to call its life planner as witness, it was too late because report was served and litigation privilege waived. Andreason v. under Bay (City) (Jan. 30, 2014, Ont. S.C.J., D.C. Shaw J., File No. under Bay CV-09-0044) 237 A.C.W.S. (3d) 52. Contracts MISREPRESENTATION No evidence defendant and acquaintance conspired to defeat plaintiff 's right of first refusal Plaintiff purchased defendant's dry cleaning business and as- sets, and parties entered lease with right of first refusal rather than option to renew. Near end of term, renewal was discussed, but plaintiff could not afford in- creased rent, so defendant asked plaintiff to vacate at end of term, indicating he planned to oper- ate business himself, as he had before. Plaintiff was unable to sell equipment, so defendant purchased assets and business back from her at greatly reduced price. Weeks later, defendant sold business and assets to ac- quaintance for far more than he had paid plaintiff. Action for damages for breach of contract and bad faith, on basis plaintiff voluntarily terminated rights only because she thought de- fendant would resume operat- ing business, but he tricked her. Action dismissed. Acquaintance gave credible evidence she was actively looking to purchase dry cleaning business when she bumped into defendant, so she jumped on his offer even though she thought it was at first made in jest. ere was no evidence de- fendant and acquaintance con- spired to defeat plaintiff 's right of first refusal or that defendant knew acquaintance was looking to buy. Given compressed tim- ing of sale and purchase, fact that defendant had not yet regis- tered business at time of sale was not determinative. Ashbury Cleaners (2003) Ltd. v. Crisolago Holdings Ltd. (Dec. 12, 2013, Ont. S.C.J., Chiappetta J., File No. CV-09-374349) 237 A.C.W.S. (3d) 96. Corporations RECEIVERS Shareholders could not under- take investigative powers they had ceded to receiver Corporation owned property intended for development of condominium tower. Share- holders in corporation com- menced oppression application. Dispute involved mortgages registered against property. Ap- plicant was appointed to inves- tigative receiver of corporation. Receiver brought motion for its discharge. Receiver's first re- port indicated it was unable to complete mandate because of insufficient and incomplete in- formation and receiver would be unable to complete mandate without incurring considerable additional expenses. Receiver's second report stated corpo- ration generated insufficient revenue to make payments on mortgages and it might not be cost effective for receiver to con- duct further investigation until power of sale was completed and determination made as to funds available to shareholders of corporation. Shareholders in corporation wanted to exam- ine five people as witnesses un- der Rule 39.03 of Rules of Civil Procedure (Ont.), on receiver's discharge motion. No examina- tions were scheduled under Rule 39.03 as sought by shareholders. Shareholders sought to conduct inquires they thought receiver should have performed, which was not proper use of Rule 39.03 in context of investigative receiv- ership. If shareholders thought receiver did not do adequate job or that receiver's powers should be expanded to permit further inquiries, they could make submissions at discharge hearing. Having sought and se- cured placement of investiga- tive powers into hands of court- appointed receiver, shareholders could not undertake that which they ceded to receiver. Proper course was for shareholders to make submissions at discharge hearing. Monaco v. Langston Hall Real Estate Corp. (Jan. 27, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-12-9805- 00CL) 237 A.C.W.S. (3d) 102. Damages PROPERTY DAMAGE Plaintiff granted $6,084.82 for cost of hydro pole On Sept. 14, 2012, defendant drove her car into hydro pole owned by plaintiff and it sued her for cost of replacing it. Following accident, plaintiff delivered to defendant a document purport- ing to be "invoice" in amount of $10,270.62 plus interest at 1% per month in default of pay- ment within 30 days. Defendant pleaded that damages were ex- cessive and that pole was rotten and needed replacement regard- less of damage she caused. Ac- tion allowed in part. Defendant's inattentiveness caused accident. Defendant had turned to look at sons who were making noise in back seat at time of accident. Defendant also pleaded guilty to charge of careless driving. In- voice submitted by plaintiff was not invoice in fact and in law but simply request or demand for payment. Claim included administration fee of $890.82 and labour and truck expense in amount of $8,911.48. Balance of claim of $920.42 was for materi- als. Claim for administration fee was dismissed. Plaintiff did not pay anything extra to employee who picked up phone to be told by police about damaged hydro pole. Claim for materials was reduced by depreciation allow- ance to $402.32. Operating cost component of truck time was reduced to $295. Labour com- ponent of claim was allowed at $4,537.50. Judgment was grant- ed to plaintiff for $6,084.82, plus interest at statutory rate. Kitchener-Wilmot Hydro Inc. v. Sturm (Jan. 22, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 212/13) 237 A.C.W.S. (3d) 110. Evidence OPINION EVIDENCE Little prejudice to defen- dants if trial judge heard from more experts for plaintiffs Plaintiff was injured in motor vehicle accident when her bike was in collision at intersection. Plaintiff sustained traumatic brain injury and would not be able to testify as to what hap- pened. Plaintiffs brought mo- tion for leave to call more than three expert witnesses at trial. Plaintiff sought to call five ex- perts on issue of liability and five experts on issue of dam- ages. Defendants possible total of experts was five. Defendants did not propose to call any medical experts. Leave granted. Because plaintiff herself could not give evidence on cause of accident, prejudice to plaintiffs in denying three additional li- ability experts outweighed any prejudice to defendants. Plain- tiffs would have to call medical experts to prove damages. ere was little prejudice to defen- dants if trial judge heard from more experts for plaintiffs than for defendants. It would be only substance of expert evidence that would be weighed and not number of experts. Defendants did not show actual prejudice. Andreason v. under Bay (City) (Jan. 30, 2014, Ont. S.C.J., D.C. Shaw J., File No. under Bay CV-09-0044) 237 A.C.W.S. (3d) 120. Family Law CUSTODY Occasional incidents of conflict were not material change of circumstances Parties began relationship in August 2008. Parties never married. Child was born on Aug. 12, 2009. After number of months, mother moved out of father's home. In September 2009, parties signed agreement with respect to joint custody and child support, which was ratified by Quebec Superior Court on Nov. 18, 2009. Par- ties resumed cohabitation for short period of time, but final- ly separated on August 1, 2011. Mother successfully brought motion for finding that On- tario Superior Court of Justice had jurisdiction over matter. Both parties brought motion for interim sole custody of child. Father claimed that cur- rent 50/50 custody regime was not working due to high con- flict between parties and it was in child's best interests to live with him. Mother stated that she had been primary caregiv- er for child since her birth and that she provided child with stability and positive home environment. Motions dis- missed. There were no material changes in circumstances justi- fying change of 50/50 custody regime. Occasional incidents of conflict were not material change of circumstance. Court made minor modifications to pick up and drop off regime for child to reduce conflict and to reduce parties having to deal with each other in person. Ascani v. Robert (Jan. 20, 2014, Ont. S.C.J., Stanley J. Kersh- man J., File No. Ottawa FC-12- 1698) 237 A.C.W.S. (3d) 148. DOMESTIC CONTRACTS Wife had no excuse for failing to read agreement before executing it Husband and wife purchased home in 2002, while they were still dating. Parties executed co- habitation agreement around that time. Agreement provided parties would receive back ini- tial equity they put into home and that husband would re- ceive 70% of any increase in equity. Agreement provided there would be no claims for spousal support or equalization of property. Wife had obtained only minimal independent le- gal advice. Parties married in 2003, but separated in 2010 or 2011. Wife brought application for order setting aside cohabi- tation agreement. Application dismissed. Wife's entitlement to equity in home was determined in accordance with agreement. Wife established her indepen- dent legal advice had not been meaningful, but this in itself was not basis for setting aside agreement. Wife failed to es- tablish she had not understood nature and consequences of agreement within meaning of s. 56(4)(b) of Family Law Act (Ont.). Terms of agreement were amenable to plain reading. Wife acknowledged not really reading agreement until aer separation. Wife had no excuse for failing to read agreement before executing it. ere was no undue influence or unconscionable terms. Harnett v. Harnett (Jan. 16, 2014, Ont. S.C.J., H.A. McGee J., File No. FC-11-732-00) 237 A.C.W.S. (3d) 151. Limitations PROFESSIONS Firefighter had defence for good faith conduct in execution of duties Defendant was firefighter em- ployed by defendant city. On March 6, 2011, he was driving fire truck to emergency. Fire truck struck automobile driven by plaintiff. Plaintiff died as re- sult of the accident. Plaintiff 's estate and family sued firefight- er and city for negligence. Fire- fighter and city moved for order dismissing action against fire- fighter as statute-barred and as not showing reasonable cause of action. Defendants relied on s. 74 of Fire Protection and Prevention Act, 1997 (Ont.), which provided that no action could be brought against fire- fighter for any act done in good faith in execution or intended execution of his or her power or duty or for any alleged ne- glect or default in execution in good faith of his or her power or duty. Motion dismissed. Sec- tion 74 of Act was purely mat- ter of defence. ere was no cause of action for bad faith conduct of firefighter. Rather, firefighter had defence for good faith conduct in execution or intended execution of his or her duties. Plaintiffs may succeed if firefighter failed to prove his defence based on s. 74 of Act. In addition, there had been no case law interpreting meaning of s. 74 and, therefore, it was not plain and obvious that some or all of acts pleaded in statement of claim would establish claim against firefighter. Schulz v. Johns (Jan. 17, 2014, Ont. S.C.J., Perell J., File No. 12-CV-451025) 237 A.C.W.S. (3d) 223. LT CASELAW

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