Law Times

Page 16 OctOber 6, 2014 • Law Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Civil Procedure SUMMARY JUDGMENT Man's contention he had been taken advantage of was bald allegation Appellant man and respondent woman were engaged in mat- rimonial litigation. Man with- drew funds from parties' joint line of credit for his personal and business uses, and signed documents promising to re- pay amounts. Judge granted woman and corporation's mo- tion for summary judgment re- quiring man to repay $195,539 to parties' joint line of credit and $10,000 to corporation, and awarded costs of $40,000 against him. Man appealed and brought motion for leave to ap- peal costs award. Appeal and motion dismissed. Each repay- ment obligation had matured. Man's contention that he was vulnerable and had been taken advantage of by woman was bald allegation unsupported by any evidence. At best, man had claim in matrimonial proceed- ings that he made contribution toward matrimonial home for which he should receive credit, but this claim was not affected by requirement that he repay his obligations to joint line of credit. Man conceded his obligation to repay funds, and signed prom- issory notes confirming his in- tention to repay amounts. Man established no triable issue in defence to his repayment obli- gations. Accordingly, summary judgment was properly granted. As man's appeal had been dis- missed, his motion for leave to appeal costs was dismissed. Friendly v. Elkind (May. 20, 2014, Ont. C.A., E.E. Gillese J.A., K. van Rensburg J.A., and C.W. Hourigan J.A., File No. CA C58057) 240 A.C.W.S. (3d) 843. Contracts DAMAGES Individual defendants gave no indication they were agents for another party Plaintiff brought claim for un- paid balance of two accounts for marketing services rendered, in total amount of $14,139.69. Plaintiff alleged that its contract was with individuals defendants and that it did not know until after contract formation that there was alleged to be corpo- ration involved. Additionally or alternatively they have sued defendant numbered company. Individual defendants claimed they had no liability in matter, but admitted that plaintiff was owed amount of $4,230.33. Ac- tion allowed. Corporate defen- dant's client services manager authorized work performed by plaintiff. Defendants never complained about invoices un- til matter was brought to court. Plaintiff was entitled to judg- ment on its claim for $14,139.69. Individual defendants gave no indication they were agents for another party or parties nor that incorporated entity was involved. It was reasonable for plaintiff to perceive and to be- lieve that it was contracting with those two individuals carrying on business in their own right when it contracted for services giving rise to invoices. Judg- ment was granted against indi- vidual defendants only. Mad Hatter Technology Inc. v. Short (May. 10, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1974/13, 1974D1/13) 240 A.C.W.S. (3d) 861. TERMINATION Trial judge's interpretation of clear language of agree- ment was unassailable Plaintiff was to provide soft- ware development services to defendant company under in- dependent contractor services agreement. Plaintiff claimed damages for wrongful termina- tion of agreement and claimed defendants breached duty of care or fiduciary duty and made negligent misrepresentations. Plaintiff claimed defendants were unjustly enriched, induced breach of contract and defamed plaintiff. Trial judge found that plaintiff did not breach terms of agreement with company and company was not entitled to im- mediately terminate agreement. Company was to pay dam- ages in lieu of 15 days' notice as provided for in agreement. All other claims were dismissed. Plaintiff appealed. Appeal dis- missed. Trial judge identified applicable legal principles and applied principles to facts she found. Findings of fact were entitled to deference and there was no basis to interfere with factual findings. Trial judge's interpretation of clear language of agreement was unassailable, regardless of whether plaintiff was characterized as employee or independent contractor. Trial judge did not err in analyzing and rejecting other claims plain- tiff advanced. Shekhdar v. K&M Engineering and Consulting Corp. (Aug. 13, 2013, Ont. C.A., Doherty J.A., M. Rosenberg J.A., and M. Tull- och J.A., File No. CA C49094) Decision at 168 A.C.W.S. (3d) 90 was affirmed. 240 A.C.W.S. (3d) 867. Courts JURISDICTION Would be disproportionate pen- alty to deny plaintiff opportunity to pursue full extent of claim Plaintiff leased truck from de- fendant. Defendant repossessed truck. Plaintiff brought Small Claims Court action alleging defendant unlawfully repos- sessed truck and sought dam- ages. Year later fresh claim was issued in Small Claims Court for $25,000. Plaintiff sought or- der transferring Small Claims Court action to Superior Court of Justice. Proposed new state- ment of claim for Superior Court sought general damages of $420,566.64 and punitive damages of $20,000. Motion granted. It was appropriate case for transfer because it empow- ered plaintiff to pursue claim in what he now considered were its real dimensions. It would be dis- proportionate penalty to deny plaintiff opportunity to pursue full extent of claim. Reality was plaintiff was seeking higher recovery and ran into jurisdic- tional limits of court he chose. If there were no ceiling such amendments were routinely granted unless prejudice would result that could not be compen- sated for by costs. Drost v. CMH Automotive Fi- nancing (Jun. 5, 2014, Ont. S.C.J., Timothy Minnema J., File No. CV-13-58408) 240 A.C.W.S. (3d) 878. Family Law CHILD WELFARE Material change did not by itself justify change to exist- ing order for care of child Child was apprehended from his mother's care on April 15, 2012. On April 20, 2012, child was placed in care of his pater- nal great-grandparents, subject to supervision of society, pur- suant to temporary order. On December 3, 2012, court made final order that child remain in care of paternal great-grandpar- ents subject to supervision of society, for period of six months. On June 5, 2013, court made temporary order continuing December 3, 2012 order. Society brought status review applica- tion. Mother and father of her two older children each brought motions that child be placed in their care. Motions were based on criminal charges pending against paternal great-grandfa- ther with respect to discovery of improperly stored weapons and ammunition at his residence. Motions dismissed. While charges against paternal great- grandfather constituted materi- al change in circumstance, ma- terial change did not, by itself, justify change to existing order for temporary care of child. Onus remained on moving par- ty to show that best interests of child required change in care of child. Society conducted inves- tigation and was comfortable with child remaining in home of paternal great-grandparents. Paternal great-grandfather re- quired palliative care and pa- ternal great-grandmother was primary caregiver. Children's Aid Society of Ham- ilton v. H. (A.) (May. 15, 2014, Ont. S.C.J., D.A. Broad J., File No. C-734/12) 240 A.C.W.S. (3d) 899. CUSTODY Child deserved opportu- nity to live in happy family environment with mother Mother and father had child in Ontario during short con- f lictual relationship. Mother wished to move to Alberta where her new boyfriend found work. Mother allowed father to have temporary custody of child while she tried living in Alberta. Father refused to allow child to go to Alberta for planned ac- cess visit. Child suffered sev- eral minor injuries while in father's care. Father engaged in domestic violence with his new girlfriend. Children's Aid So- ciety placed child with mother. Mother brought application for sole custody of child and per- mission to move to Alberta with REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! 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