Law Times

Page 14 July 21, 2014 • Law Times www.lawtimesnews.com motion failed, defendant's cross- motion should succeed. Lauzon v. Dominion of Canada General Insurance Co. (Mar. 27, 2014, Ont. S.C.J., Ellies J., File No. CV-10-4812) 238 A.C.W.S. (3d) 845. Criminal Law CIVIL FORFEITURE Owners failed to establish continuing preservation order was not in interest of justice Property owners were wife and sister of accused. Owners held ti- tle to 13 rental properties. Attor- ney General of Ontario alleged accused had laundered drug money through acquisition of properties. Attorney General commenced application against owners for forfeiture of proper- ties under Civil Remedies Act, 2001 (Ont.). Attorney General obtained interlocutory preser- vation order under Act against all 13 properties on ex-parte ba- sis. Attorney General brought motion for continuation of pres- ervation order. Motion granted in part. Preservation order was continued as against eight prop- erties, but discharged as against five properties. There were rea- sonable and probable grounds to believe eight properties were proceeds of unlawful activity. Evidence provided reasonable and probable grounds to believe accused had recently been en- gaged in drug-related criminal activity. Owners failed to estab- lish that more than five proper- ties had been acquired through bona fide means. There had not been any material non-disclo- sure at time when ex-parte order was obtained. Owners failed to establish continuing pres- ervation order as against eight properties was not in interest of justice. Nothing interfered with operation of properties as rental properties. Ontario (Attorney General) v. 626 Strand Avenue (May. 28, 2013, Ont. S.C.J., F.B. Fitzpat- rick J., File No. Thunder Bay CV-12-368) 238 A.C.W.S. (3d) 873. Family Law CUSTODY Seeking police enforcement clause without input from police raised concerns Mother and father had one child prior to separation. Par- ties consented to mother having sole custody and father having generous access. Parties contin- ued to have acrimonious rela- tionship. Ongoing conf lict led to police involvement on sev- eral occasions. Parties reached agreement that included po- lice enforcement clause. No conf licts arose since that time. Parties sought to have agree- ment incorporated into consent order. Hearing was ordered to address necessity of police en- forcement clause. Order was ap- proved without police enforce- ment clause. Nothing in s. 36 of Children's Law Reform Act (Ont.), suggested police enforce- ment could be used as long- term, open-ended, on-demand enforcement tool. To contrary, language of s. 36 of Act was more consistent with tempo- ral powers to deal with current or known situation. Concerns about future compliance sug- gested agreed terms might not be appropriate. Reliance on po- lice was not in children's best in- terests. Seeking police enforce- ment clause without input from police also raised concerns. There was no apparent need for police enforcement clause in this case. Parties were at liberty to bring motion on short notice to address any custody/access issues that might arise within next 12 months. Patterson v. Powell (Mar. 5, 2014, Ont. S.C.J., A. Pazaratz J., File No. D915/12) 238 A.C.W.S. (3d) 912. PROPERTY Wife not entitled to credit for spousal support payments paid to mortgagee Parties were married on May 11, 1999. Parties separated in April 2011, but remained living under same roof until October 2011, when husband left matrimonial home. Wife continued to reside in home. Parties had agreed on several property issues prior to trial. Parties agreed that matri- monial home would be sold and that net proceeds of sale would be used to pay off mortgage and joint line of credit. Contents of matrimonial home would be divided equally. Each party was to retain ownership and posses- sion of their respective vehicles and personal property. Parties also agreed that there would be equalization of husband's pen- sion. There remained outstand- ing issues regarding trailer pur- chased in husband's name and wife's request for credit on sale of matrimonial home because her spousal support was paid directly to mortgagee. Wife also sought deduction for value of house that she owned as at date of marriage. Proceeds of sale of that house were used to pur- chase matrimonial home. Order granted. Trailer was asset owned by husband, and loan taken out to pay for trailer was debt owed by husband. Both trailer and loan would be shown on hus- band's side of ledger in net fam- ily property statement. Wife was not entitled to credit for spousal support payments paid to mort- gagee. If wife had not been liv- ing in matrimonial home, she would have received spousal support, but also would have had to pay rent. Use of spousal support to pay mortgage did not result in any loss to wife. While wife's house was matrimonial home for nine months, wife was entitled to deduction in amount of $22,000. Net difference in net family property statements was $30,254, resulting in equaliza- tion payment from husband to wife in amount of $15,127. Colquhoun-Kelly v. Kelly (Mar. 7, 2014, Ont. S.C.J., J.R. Hender- son J., File No. Welland 6515/13) 238 A.C.W.S. (3d) 923. Insurance AUTOMOBILE INSURANCE Court required to determine whether degree of pain prevents plaintiff from engaging in activities Plaintiff claimed entitlement to non-earner benefit under policy of insurance issued to her by defendant insurer as result of injuries suffered by her in mo- tor vehicle collision on July 8, 2004. Plaintiff, aged 18 at time of accident, worked as cook in restaurant, having just finished first year of a two-year General Arts and Science program at college. Plaintiff did not return to college in fall 2004. Plaintiff returned to work in restaurant four months after accident on modified duties and returned to full-time regular duties three to four months after that. In Sep- tember 2005, plaintiff returned to school in full-time nursing program, ultimately obtaining her nursing degree. Plaintiff received income replacement benefits from insurer from July 14th to October 28, 2004. When those benefits were discontin- ued plaintiff brought action claiming entitlement to income replacement benefits. Action was settled following plaintiff 's examination for discovery. Plaintiff now sought non-earner benefits under policy. Insurer applied for summary judgment on grounds that plaintiff did not meet test for non-earner benefits in that she continued to engage in substantially all of her pre-accident activities. Motion dismissed. Question of whether injuries sustained by plaintiff 's accident prevented her from engaging in substantially all activities in which she ordinar- ily engaged before accident was to be viewed from "qualitative perspective" requiring relevant activities to be viewed as whole, with manner in which each ac- tivity was performed and quali- ty of performance post-accident to be considered. Since pain was primary factor that allegedly prevented plaintiff from en- gaging in her former activities, court was called upon to deter- mine, not whether she could physically do those activities, but whether degree of pain ex- perienced, either at time, or sub- sequent to activity, was such that she was practically prevented from engaging in those activi- ties. Evidence led by insurer on motion fell well short of equip- ping motion judge to make necessary findings of fact on those issues. Trial was required to carry out exercise in order to make fair and just adjudication of issues in case. Willoughby v. Dominion of Canada General Insurance Co. (Feb. 20, 2014, Ont. S.C.J., D.A. Broad J., File No. 11-25834) 238 A.C.W.S. (3d) 958. Judgments and Orders SETTING ASIDE Defendant could have raised medical condition with plaintiff at earlier date Motion by defendant to set aside noting in default and default judgment. Underlying action was commenced Aug. 3, 2012. Plaintiff sued for defamation arising from multiple posts made by defendant to stock-re- lated website called stockhouse. com, and in particular its online forum about company. Plaintiff was CEO of company. Starting in 2001, defendant engaged in campaign against plaintiff us- ing messages posted on stock- house.com. Once litigation commenced, defendant began to communicate with plaintiff 's counsel. Defendant's e-mails to counsel were characterized by profanity. Defendant did not ask for any extension of time or in- dicate that due to illness he was unable to deal with litigation. Defendant now claimed he had been unable to defend action because of medical problems associated with cancer. Plain- tiff had been awarded damages of $200,000 based on finding that defendant's posts had been viewed 500,000 times. Motion dismissed. Defendant failed to provide completely satisfactory explanation of circumstances of his default. Defendant could have raised his medical condi- tion with plaintiff at earlier date. There was no arguable defence that words used by defendant were not defamatory. However, there was arguable defence that damages awarded were exces- sive. Court was prepared to vary award of damages. Defendant was to remain in default, but parties were to be given oppor- tunity to make brief written submissions on damages. Busseri v. John Doe (Feb. 6, 2014, Ont. S.C.J., W. Matheson J., File No. CV-12-460481) 238 A.C.W.S. (3d) 962. Landlord and Tenant FORFEITURE OF LEASE Landlord did not have right to withhold payment based on estimate of cost of repairs Previous order enforced sur- render of lease for commercial premises leased by tenant from plaintiff landlord. At same time, replacement lease was enforced for replacement premises leased by tenant from plaintiff replace- ment landlord, which was sister company to landlord. Upon vacating premises and tak- ing possession of replacement premises, landlord was to pay tenant $112,500 owing to it as next installment of inducement payments agreed upon in sur- render of lease. Tenant moved out of premises in some haste, leaving trail of destruction in its wake. Funds were turned over to landlord's solicitors to hold as security for cost of repairs. Ten- ant never moved into or com- menced paying rent for replace- ment premises and replacement lease was terminated. Tenant brought motion for relief from forfeiture and landlord brought cross-motion to vary terms of order under which it was to pay tenant an inducement payment for leasing subject premises. Mo- tion and cross-motion granted. Tenant needed payment land- lord withheld from it in order to pay rent, but tenant's own conduct prompted landlord to respond as it did. Nevertheless, landlord did not have right to withhold payment to tenant based on estimate of how much it would cost to effect repairs to premises. That would amount to prejudgment seizure of funds to secure damages claim. Relief from forfeiture was granted on certain conditions designed to protect landlord's and replace- ment of landlord's rights. 2454 Bloor Street West Ltd. v. 2107733 Ontario Inc. (Feb. 14, 2014, Ont. S.C.J., E.M. Morgan J., File No. CV-13-473944) 238 A.C.W.S. (3d) 966. Real Property CONDOMINIUMS Owners had to contribute to common expenses notwithstanding objections Applicant purchased condo- minium, which came with two parking units. Applicant was provided with by-laws and dec- laration and status certificate. Status certificate erroneously excluded amount of common expenses owing for parking units. As such, applicant only paid amount of common ex- penses owing for suite, and respondent registered lien. Ap- plication for declaration it was not required to pay common ex- penses for two parking units and order discharging lien allowed in part. Cross-application by re- spondent condominium corpo- ration for order declaring appli- cant in breach of by-laws, rules and declarations due to failure to pay common expenses, order to comply and pay full amounts owing under lien, including full costs allowed in part. Status certificate error was inadver- tent, but applicant was entitled to rely on it, but only for fiscal year to which it related. This finding was supported by case law, fact that applicant received by-laws and declarations that stated owners had to contrib- ute to common expenses not- withstanding objections, and fact that parking units formed part of unit as described by sta- tus certificate. Status certificate was valid only until end of fiscal year, and then new budget came into effect. Respondent had right to register lien for amounts owing after first fiscal year and was entitled to apply credits in manner it saw fit by allowing default to roll forward every 30 days, and was not statute-barred from registering lien. Following end of first fiscal year, applicant owed difference between what it paid and full amount of com- mon expenses. Given origin of dispute was respondent's error, it would be inequitable to re- quire applicant to pay full inter- est and costs. Lien to be amend- ed to ref lect amount owing plus nominal costs of $750, for total of $4,614.92 owing, and would be discharged without interest provided applicant paid within 60 days. CASELAW

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