Law Times

Page 14 September 29, 2014 • Law Times www.lawtimesnews.com Education SCHOOLS Decision to ask child to leave school contractual decision, not fiduciary decision Plaintiff, aged four, was pre- schooler at relevant time. De- fendant required plaintiff to withdraw from its pre-school on 30 days' notice because of repeated misbehaviour. Plain- tiff claimed other children were misbehaving toward plaintiff. Claim was previously dis- missed because it was brought after expiry of limitation pe- riod. Remaining claim was for breach of fiduciary duty. De- fendant brought motion for summary judgment. Plaintiff filed no evidence in opposition to motion. Motion granted. Ac- tion dismissed. Under mother's contract with school, decision to ask child to leave was not fiduciary decision, but contrac- tual decision between mother and school. Plaintiff did not have credible evidence to sat- isfy conditions for fiduciary duty or to prove he suffered damages. Mendes v. Blaisdale Montessori School (May. 26, 2014, Ont. S.C.J., F.L. Myers J., File No. CV-12-452090) 240 A.C.W.S. (3d) 650. Evidence OPINION EVIDENCE Report was "corporate" expert report rather than one prepared specifically by witness Plaintiff First Nation brought action for damages for negli- gence involving alleged con- tamination of lands arising from diesel fuel spill in 2002. Defendants were fuel delivery company and estate of one of its drivers. Defendants brought oral, mid-trial motion to dis- qualify in total proposed ex- pert testimony of first of four expert witnesses proposed to be called by plaintiff. Witness was geoscientist. Motion came after plaintiff sought to qualify witness as expert in investiga- tion and remediation of con- taminated soil and groundwa- ter, and expert in investigation of contaminated sites in associ- ation with federal and provin- cial legislation and regulation. Defendant claimed witness's expert report was non-compli- ant with Rules of Civil Proce- dure (Ont.), because it was "cor- porate" expert's report rather than one that was specifically prepared by witness. Motion granted in part. While witness was qualified to give expert opinion, body of his report did not identify directly topics for which plaintiff 's counsel asked that he be permitted to give opinion. Just, most expeditious and least expensive solution to defendant's motion was to grant leave to plaintiff to call witness to testify as fact witness. How- ever, such leave did not include his utilizing his report as it was presently constituted to assist with his testimony. If, in course of witness's evidence, plaintiff sought to solicit evidence that arguably could constitute opin- ion on particular topic, court would deal with whether or not that evidence would be permit- ted on issue by issue basis. Bearskin Lake First Nation v. Paul's Hauling Ltd. (Apr. 4, 2014, Ont. S.C.J., F.B. Fitzpat- rick J., File No. Thunder Bay CV-04-0193) 240 A.C.W.S. (3d) 661. Family Law CUSTODY Father would ignore contrary views and impose his own Parties were married for six years, and had one child. Father and his parents had precon- ceived notions of what mother's role and responsibilities should be within family unit, which was one of complete control and subservience. Father was con- descending and had denigrat- ing attitude towards mother. Father had repeated disregard and disrespect for court pro- cess. Father failed to disclose his complete financial situation and failed to comply with court orders. Mother sought sole cus- tody and father sought joint custody. Child's best interests favoured order for sole custody to mother. Mother was to be primary caregiver and child's primary residence was to be with mother. Father was grant- ed access on terms. Mother at- tended to every need of child and provided child with full stability. Mother's proposed parenting plan confirmed she would continue to offer safe and stable home environment. Father lacked appreciation of his obligations and would not engage in any joint decision- making. Father would ignore contrary views and impose his own, which would not support child's best interests. Mother continued to fear father. Joint custody would not be in child's best interests. There was sig- nificant risk that joint custody would result in situation where father would control decision- making. Both parents were en- titled to travel with child for no longer than four weeks per year and only when child was not in school. Father was not to with- hold his signature for renewal of child's passport. Goyal v. Goyal (May. 15, 2014, Ont. S.C.J., Tzimas J., File No. FS-09-5218-00) 240 A.C.W.S. (3d) 682. PROPERT Y Interest in home to be transferred to husband and vested in satisfaction of penalty and costs Parties were married for 16 years. Husband remained in matrimonial home after sepa- ration and paid mortgage in full. Husband owned one-fifth interest in farmland, which he owned on date of marriage. Both parties had pensions and bank accounts with savings. Respondent filed no answer and did not attend trial. Re- spondent breached court or- der that required her to make financial disclosure and did not respond to request to ad- mit. Respondent was found in contempt of court orders and failed to comply with that or- der. Respondent was arrested and was ordered to produce completed financial statement. Respondent did not comply with order. Respondent failed to pay costs orders. Penalty im- posed on respondent was $50 per day in favour of husband. Total of penalty and costs ow- ing to husband was $45,075.48. Husband wished to keep matri- monial home and sought order that in consideration of vesting title to home in him equaliza- tion payment and wife's equity in home be off set against pen- alty and costs owing to him with difference of $10,000 in his favour to be extinguished. Values resulted in equalization payment owing by husband to wife of $4,776.72. Equalization payment was deemed to be sat- isfied by offsetting it against penalty imposed against wife in favour of husband. Interest in home was to be transferred to husband and vested in him in satisfaction of remaining balance of penalty and out- standing costs awards. Newton v. Newton (May. 5, 2014, Ont. S.C.J., D.C. Shaw J., File No. under Bay FS-10- 0344) 240 A.C.W.S. (3d) 689. SUPPORT Provisional orders deprived wife and children of all support ordered in original judgment In March 2007, Ontario court ordered husband to pay $54,690.93 in arrears of child and spousal support and $15,000 of outstanding costs. Husband moved to Nova Sco- tia to avoid support obligations and obtained two provisional orders from Nova Scotia court in 2011 and 2012 that expunged all of his support arrears from 2009 to July 2013. Wife was unable to attend hearing in Ontario to consider provi- sional order because she was unable to get off work. Court confirmed Nova Scotia orders. Wife's motion of Oct. 3, 2013 to set aside order was dismissed. Wife brought further motion seeking reconsideration of pro- visional orders. Order granted. Provisional orders deprived wife and parties' children of all support ordered in original judgment. Orders were made in the absence of wife as, for vari- ous reasons, she did not partici- pate in hearings in which the is- sues were considered and deter- minations were made. Wife was entitled to full and fair hearing of issues on merit. Court decid- ed to treat wife's motion as mo- tion to extend time to appeal order expunging arrears and appeal of that order. Extension of time was granted and appeal was allowed. Order expunging arrears was set aside. Further hearing was to be held on issue of confirmation of Nova Scotia orders. Misheal v. Okel (Dec. 30, 2013, Ont. C.A., K. Feldman J.A., Gloria Epstein J.A., and K. van Rensburg J.A., File No. CA M42706 (C46899), M43110) 240 A.C.W.S. (3d) 540. Injunctions INTERLOCUTORY RELIEF Court could not order defendants to be nice to plaintiffs Parties lived across street from one another. Plaintiffs had elev- en video cameras for security purposes around their house. Two video cameras were aimed directly at defendants' front door and driveway recording every movement in and out of defendants' home. Plaintiffs alleged defendants were mis- behaving and disturbing their peaceful life. Plaintiffs com- plained defendants "pooped and scooped" placing bag into plaintiffs' garbage, let pet water on their hedge, took pictures of their house, looked at their house, parked car in front of their house, and walked by holding dictaphone to record conversations. Plaintiffs sought injunctive relief on interlocu- tory basis. Motion dismissed. There was no serious issue to be tried. Court could not order de- fendants to be nice to plaintiffs. There was no claim for pooping and scooping into neighbour's garbage can or for letting pet water neighbour's hedge. There was no claim for looking at neighbour's house, parking car legally, or walking on public street with dictaphone in hand. Morland-Jones v. Taerk (May. 20, 2014, Ont. S.C.J., E.M. Morgan J., File No. CV-12- 463877) 240 A.C.W.S. (3d) 717. Real Property CONDOMINIUMS Amended declaration had effect of undermining reason- able expectations of applicants Applicants purchased resi- dential unit in condominium development. As there was no parking available at condo- minium, applicants purchased parking space and storage unit in condominium next door, which was owned by respon- dent condominium corpora- tion. There was nothing in dec- laration for corporation that prevented applicants from pur- chasing parking and storage space in their building. There was no dispute among parties that applicants would not have purchased their residential unit without if they had been un- able to purchase parking unit and storage unit next door. On March 25, 2010, corpora- tion amended its declaration to prevent ownership of park- ing spaces and storage units by non-residents. Corporation made exception for applicants as long as they owned their resi- dential unit. Applicants wished to relocate. However, because of amended declaration, appli- cants could not sell their park- ing space and storage unit with their residential unit. Appli- cants alleged that they were un- fairly prejudiced or oppressed as result of amendment. Appli- cants applied for order under s. 135 of Condominium Act, 1998 (Ont.), that corporation further amend its declaration. Applica- tion allowed. Effect of amended declaration on applicants was oppressive and unfairly disre- garded their interests. Restric- tion against them from selling their parking and storage units to future purchaser of their res- idential unit was restriction not imposed on any other owner of residential unit in building. Amended declaration had ef- fect of undermining reasonable expectations of applicants and unfairly disregarded their in- terests. Applicants were severe- ly prejudiced because they were unable to sell their residential unit without parking space. Corporation was required to further amend its declaration to permit applicants to sell their parking space and storage unit. Grigoriu v. Ottawa-Carleton Standard Condominium Corp. No. 706 (May. 9, 2014, Ont. S.C.J., B.R. Warkentin J., File No. CV-11-51096) 240 A.C.W.S. (3d) 757. Sale of Land MISREPRESENTATION No evidence to support allegation that property not in compliance at date of sale Plaintiff purchased land from defendants. Plaintiff subse- quently discovered significant environmental contamination, which it was forced to remedi- ate. Plaintiff sought damages. Defendants asserted they knew nothing of contamination. De- fendants brought motion for summary judgment. Motion granted. Action was dismissed. Trial was not required to ar- rive at fair and just determina- tion of issues. There was bare allegation that property was not in compliance with envi- ronmental laws at date of sale with virtually no evidence to support allegation. There was virtually no evidentiary ba- sis on which to make finding that defendants knew or ought to have known of existence of USTs when property was sold. That discharge occurred dur- ing defendants' ownership was mere speculation. Plaintiff did not establish that destroyed records would be of relevance and issue of spoliation did not raise genuine issue for trial. Gagnon & Associates Inc. v. Genier (May. 16, 2014, Ont. S.C.J., R.D. Gordon R.S.J., File No. C-10,162/07) 240 A.C.W.S. (3d) 762. Substitute Decisions PERSON Mother's plan of care left too many unanswered questions Child suffered catastrophic and permanent brain injury in mo- tor vehicle accident. Child was being treated in hospital. Child required 24-hour care and su- pervision and had care needs CASELAW

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