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Page 18 SePtember 15, 2014 • Law Times www.lawtimesnews.com to daughter and respondent, who was daughter's common law husband, towards purchase of house were not gift, but loan that constituted unregistered mortgage on home. Although application was supported by one document, meaning and intent of that document was in dispute, as were the facts that had to be found in order to determine whether declara- tion should be granted. Trial judge dismissed application. Trial judge accepted respon- dent's contention that loan had been gift, which was made in return for free room and board. Daughter and respondent were police officer. Trial judge ex- pressed concern about making finding that police officer was untruthful. Applicant appealed on basis that application judge erred in failing to find that trial was necessary in circumstanc- es, and on basis that impugned comments by application judge created reasonable apprehen- sion of bias. Appeal allowed. Applying test for reasonable ap- prehension of bias, it was clear that reasonable observer would conclude that it was more like- ly than not that, consciously or unconsciously, application judge would not impartially de- cide whom to believe. Applica- tion judge's comments indicat- ed partiality to evidence given by police officers. Even though he gave other reasons for decid- ing whose evidence he believed, those reasons were tainted by comments. Decision was set aside and new trial ordered. Laver v. Swrjeski (Apr. 17, 2014, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and Gloria Epstein J.A., File No. C57052) 240 A.C.W.S. (3d) 2. Conflict of Laws SERVICE EX JURIS Mother permitted to pro- ceed with undefended trial as father properly served Parties were married on March 7, 1987, and separated on May 13, 1995. Parties had two chil- dren born on Jan. 15, 1990, and Feb. 16, 1993. Court issued final order on Dec. 18, 2008, which terminated child support for oldest child, adjusted child sup- port payable for youngest child, and addressed outstanding arrears. Mother now brought motion to change final order. Father lived in state of Georgia. Motion to change was served on father in Georgia. Father failed to respond within 30 days required under Family Law Rules (Ont.). Motion proceeded on undefended basis. Motion granted. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to case. Convention must be complied with for ser- vice of family law proceedings within contracting states. Pro- cess server employed by mother was authorized, within State of Georgia, to serve court docu- ments anywhere in Georgia. Father was served in manner that was authorized by Con- vention, and service in that way was permissible in Ontario. Service was acceptable. Since father was properly served with motion to change and appro- priate documents, and had not responded, mother was permit- ted to proceed with undefend- ed trial. Based on her affidavit material, court was persuaded mother was entitled to order sought. Pitman v. Mol (Apr. 24, 2014, Ont. S.C.J., Gray J., File No. 4060/08) 240 A.C.W.S. (3d) 63. Contracts BUILDING CONTRACTS Owner had kicked contractor off site before contractor had oppor- tunity to correct deficiencies Property owner hired con- tractor to supply and install drywall for residential condo- minium project. Disputes arose with respect to whether con- tract included certain work that contractor regarded as extras. Parties renegotiated contract and increased price to include certain extras. Owner alleged there were certain deficiencies and refused to pay final invoic- es. Contractor brought action against owner for payment of $143,946.44 alleged to be ow- ing. Action allowed. Contrac- tor was awarded $140,946.44 after deducting $3,000 for de- ficiencies. Contractor had not been required to provide two types of corridor ceilings as al- leged by owner. Contractor had not been required to prepare balcony ceilings and bathtub/ shower walls for painting as alleged by owner. Owner was only able to establish deficien- cies with value of $3,000. Con- sideration was given to fact that owner had kicked contractor off site before contractor had opportunity to correct all defi- ciencies. V.I.E.W. Systems Inc. v. Man- sions of Forest Glen Inc. (Apr. 28, 2014, Ont. S.C.J., R.A. Lococo J., File No. Welland 4277/12) 240 A.C.W.S. (3d) 66. CAPACIT Y Testatrix clearly intended to transfer home to defendant child in one form or another Testatrix executed will in 1996 dividing her estate equally between her three children. Defendant child eventually as- sumed role of primary caregiv- er for testatrix. In 2007, testa- trix and defendant child signed memorandum of agreement (MOA) that had been prepared by solicitor. Testatrix agreed to sell home to defendant child for $100,000, and defendant child agreed to allow testatrix to live in home for balance of her life. In 2008, testatrix signed handwritten note prepared by defendant child that directed solicitor to transfer home with- out referring to purchase price. Testatrix died unexpectedly some two weeks later. Other child brought application for declaration that MOA and note were invalid. Defendant child brought cross-application for specific performance. Applica- tion dismissed; cross-applica- tion granted. MOA was valid and enforceable contract while handwritten note was merely reaffirmation of MOA. MOA was not testamentary in nature since it did not relate to dispo- sition after death, it was signed by both testatrix and defendant child, and it provided for con- sideration. Evidence did not indicate testatrix lacked mental capacity to make property deci- sions. Testatrix could not read English perfectly but did have ability to sufficiently under- stand contents of both MOA and note. Testatrix's solicitor was very credible witness who had involved another solicitor who communicated with testa- trix in her own language. Testa- trix clearly intended to transfer home to defendant child in one form or another. Donis v. Georgopoulous (Apr. 15, 2014, Ont. S.C.J., Fires- tone J., File No. 05-012/09) 240 A.C.W.S. (3d) 67. PERFORMANCE AND BREACH Defendant fully aware indemnity being given Plaintiff sold cosmetic clinic to company solely owned and operated by defendant. Asset purchase agreement required defendant's company to assume equipment lease of corporate plaintiff. Finance company refused to consent to assign- ment of lease. Plaintiff required that defendant and company execute standard indemnity agreement. Defendant default- ed on lease payment and made assignment in bankruptcy. Finance company sought pay- ment under lease and plaintiffs paid finance company $95,576 in satisfaction of all obligations under lease. Plaintiffs brought action under indemnity agree- ment to recover amount from defendant. Plaintiffs brought motion for summary judg- ment. Motion judge found that defendant executed indemnity agreement knowing and un- derstanding importance and consequences of agreement. Motion judge found that de- fendant either expressly or implicitly waived requirement for assignment of lease. Sum- mary judgment was granted against defendant in amount of $95,576. Defendant appealed. Appeal dismissed. Motion judge's findings of fact were fully justified and supported finding of waiver of assignment obligation. Defendant was fully aware her indemnity was being given with clear understanding of its purpose and intent. Mo- tion judge was justified in giv- ing indemnity legal effect. 1445369 Ontario Inc. v. Band- kohal (Apr. 14, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and G.R. Strathy J.A., File No. CA C57659) Decision at 232 A.C.W.S. (3d) 644 was af- firmed. 240 A.C.W.S. (3d) 71. Plaintiff required to repair defi- ciencies at no cost to defendant In 2009, plaintiff awarded con- tract to replace approximately 286 metres of existing sanitary sewers under four streets in defendant town. Plaintiff per- formed work under contract, plus remediation required by settlement under three of four streets, and defendant issued certificate of substantial per- formance on October 27, 2009. Including various change or- ders, plaintiff issued invoices totalling $353,141.25. In Feb- ruary and March 2010, defen- dant asked plaintiff to perform additional remedial work as result of significant settlement depressions on two of four streets. Plaintiff completed work and submitted invoice for $90,627.98 on basis of time and material expended. Defen- dant refused to pay on ground settlement caused by plaintiff 's failure to compact backfill in original trenching sufficiently and plaintiff responsible to repair deficiency at no cost to defendant. Plaintiff claimed settlement problems caused by moisture content in soil, not insufficient compaction, with result remediation work extra to original contract. Plaintiff commenced action to recover amount of invoice. Geotechni- cal engineer retained by defen- dant testified that settlement caused by poor compaction of lower trenches caused, in turn, by trenches that were too nar- row or soil that was unsuit- able. Action dismissed. Since proper compaction achieved at upper level of trenches, poor compaction at lower level must have been caused by narrow trenches. Even if suitability of soil responsible, plaintiff had duty to advise defendant if it had any concerns about using native soil for backfill. Under contract, plaintiff required to repair deficiencies at no cost to defendant. Tedescon Infrastructure Ltd. v. Markham (Town) (Apr. 24, 2014, Ont. S.C.J., A.J. O'Marra J., File No. 10405124) 240 A.C.W.S. (3d) 70. Corporations OPPRESSION No disclosure rights effective prior to purchasers' refusal to complete purchases Purchasers agreed to purchase condominium units in hotel development. Purchasers be- came parties to reservation pro- gram agreement that provided hotel would rent out their units and pay net revenues received. Purchasers were disappointed with amount of net revenues and refused to complete pur- chases. Purchasers commenced action against developer and hotel for, inter alia, rescission of purchase agreements, return of deposits, and damages for misrepresentation. Purchasers brought motion for order ap- pointing inspectors to conduct investigation into reservation program or for disclosure of related documents. Motion dismissed. No relief was avail- able against developer or ho- tel under Condominium Act, 1998 (Ont.), since they were not incorporated under this Act. Purchasers failed to establish basis for relief under this Act in any event. There was no basis for ordering disclosure as relief for oppression under Business Corporations Act (Ont.). Pur- chasers did not have contrac- tual right to disclosure under reservation program agree- ment since purchasers had not completed purchases. No disclosure rights had become effective prior to purchasers' refusal to complete purchases. Any disclosure would have to be pursued through normal discovery process. Kim v. Trump (Apr. 22, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-12-468175) 240 A.C.W.S. (3d) 224. Family Law CUSTODY Court had no jurisdiction to order someone to seek employ- ment in certain locale Parties separated in October 2010, when mother left mat- rimonial home with two chil- dren, born in 2006 and 2009, to live near parents and extended family in another region of province. In October 2011, par- ties entered final order pursu- ant to minutes of settlement providing for joint custody, primary residence with mother, access for father, child sup- port and spousal support. Or- der stipulated mother should attempt to find employment in region father continued to reside upon completion of schooling. In September 2012, father applied for order finding mother in contempt for failure to comply with that provision. Mother filed motion to change, specifically to delete provision. Father filed motion to change, to give him primary residence. At settlement conference in January 2013, mother ordered to return to region father con- tinued to reside failing which her pleadings would be struck out and primary residence of children would be with father. Mother appealed. Order ac- cordingly. Judge presiding at settlement conference had no jurisdiction to make such an order. Even though final order made pursuant to parties' con- sent as embodied in minutes of settlement, court had no ju- risdiction to order someone to seek employment in certain lo- cale. Order made without juris- diction could not be enforced, particularly through contempt proceeding. That said, mother had duty under minutes of settlement to attempt to find employment in region father resided. On evidence, it ap- peared mother had deliberately set out to frustrate spirit and CASELAW

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