Law Times

Law Times • OctOber 6, 2014 Page 17 www.lawtimesnews.com child. Application granted on terms. Mother's relocation with child was subject to specified supervised and electronic access by father. Father had exposed child to acts of violence, failed to provide appropriate medical care, and failed to ensure child's safety. Child's paternal grand- mother had exposed child to en- vironmental levels of marijuana. Father's current girlfriend was not fit to care for child. Mother was in stable and loving rela- tionship with new boyfriend. Mother would quickly obtain employment in Alberta at sig- nificantly higher wage than if she stayed in Ontario. Child deserved opportunity to live in happy family environment with mother. B. (S.) v. C. (C.) (Apr. 14, 2014, Ont. S.C.J., Helen MacLeod- Beliveau J., File No. Napanee 001/13) 240 A.C.W.S. (3d) 917. SUPPORT Husband intentionally under- employed and capable of earning income of at least $35,000 per year Husband, born in Canada in 1980, and wife, born in India in 1985, initially met online. Par- ents then became involved to arrange marriage. Parties mar- ried in India in February 2011, less than two weeks after first meeting in person. Parties resid- ed together in India for 30 days without consummating mar- riage. Husband then returned to live with mother in Canada, while wife remained in India. Parties filed application to allow wife to immigrate to Canada. However, in April 2012, unbe- knownst to wife, husband can- celled sponsorship agreement. When wife arrived in Canada in May 2012, she was advised of cancellation and detained. Hus- band commenced application for divorce. Husband claimed marriage fraud and wife only married him for immigration purposes. Husband asked court to order return of all gold jewel- lery he gave to wife and damages of $28,000 for costs of travel and wedding. Wife agreed marriage fraud and husband only mar- ried her for family money. Wife was residing with family mem- bers in Toronto, unable to work due to her uncertain immigra- tion status. Wife could not re- turn to India without financial assistance and had no one left to help her financially if she did. Wife claimed spousal support. Judgment for wife. Wife had given up everything to marry husband. Breakdown of mar- riage had left her with nothing. Husband obliged to support her. Husband had education and no disability. Husband was in- tentionally underemployed and capable of earning income of at least $35,000 per year. Husband should pay spousal support of $350 per month for three years on imputed income of $35,000 per year in addition to lump sum of $10,000. Departure from Spousal Support Advisory Guidelines justified by excep- tional circumstances. No legal foundation for husband's claims for return of gifts and damages. Sidhu v. Sidhu (May. 15, 2014, Ont. S.C.J., Thomas A. Bielby J., File No. FS-12-74993-00) 240 A.C.W.S. (3d) 936. Landlord and Tenant AGREEMENT FOR LEASE Equity demanded that only company that ever operated business be named as tenant Landlord leased commercial premises to tenant. Tenant moved in and began to set up operation, including construc- tion of outbuildings which cost exceeded estimated cost of tenant's work in schedule to lease that formed basis of rent reduction. There was f looding at premises on two occasions, but tenant made no insurance claims as result of f lood dam- ages. There was no water prob- lem after repair of roof drain, which was one of things tenant was required to do under ten- ant's work schedule. After sec- ond incident of water f looding tenant vacated premises. Land- lord re-entered to do clean up to facilitate re-renting property. Lease showed Baressa Kitchen Cabinets Ltd. as tenant, which company never existed. Tenant incorporated Baresa Kitchen Cabinets Inc., but bank refused to extend credit to new entity and tenant reverted to using 103. Landlord claimed lost rent and repairs and tenant counter- claimed asserting fundamental breach of lease. Landlord sought rectification of lease such that 103 was named as tenant. Land- lord did not conduct search to see if named tenant existed. Rectification was ordered. Eq- uity demanded that only com- pany that ever operated business be named as tenant being 103. It was likely mutual intention of parties that tenant be entity that was carrying on business that had worked out of previous lo- cation for many years. Statti Investments Ltd. v. Baresa Kitchen Cabinets Inc. (May. 21, 2014, Ont. S.C.J., Parayeski J., File No. 09-8217) 240 A.C.W.S. (3d) 984. Professions PHYSICIANS AND SURGEONS Physician's care had to be considered prospectively rather than in hindsight Patient was retired man with risk of developing respiratory illness. Patient saw family phy- sician for respiratory problem in September 2008. Physician diagnosed pneumonia and prescribed antibiotic. Patient had improved by mid-October 2008, but worsened later that month. Physician diagnosed recurrence of pneumonia, pre- scribed antibiotic, and ordered x-ray that confirmed diagno- sis. Patient became disoriented while driving home and was taken to hospital. Patient was ultimately diagnosed with very rare inf lammation of in- ner layer of heart. Patient died about one month later before recommended surgery could be performed. Patient's fam- ily brought action against physi- cian for damages for negligence. Action dismissed. Physician had not breached standard of care in his assessment, diagnosis, management, and treatment of patient. Physician's expert held physician to realistic and rea- sonable standard that physician met. Physician could have taken various additional steps but had not breached standard of care by choosing not to do so. Physi- cian's care had to be considered prospectively rather than in hindsight. Physician had exer- cised appropriate clinical judg- ment in not referring patient to hospital or specialist. In any event, patient's death would not have been prevented if physician had acted differently. Todd v. Pegado (May. 12, 2014, Ont. S.C.J., R.A. Lococo J., File No. Hamilton 09-9866) 240 A.C.W.S. (3d) 1026. Real Property CONDOMINIUMS Chair committed legal error by reconsidering result and decertifying election Applicant condominium cor- poration, responsible for ad- ministering 897 dwelling units in three-building complex, had lengthy history of dysfunction. Affairs of corporation managed by court-appointed administra- tor, rather than elected board of directors, from 2006 to 2012. However, at annual general meeting (AGM) in September 2012, board of five directors elected for terms of one to three years. Complex had high per- centage of non-resident owner- ship with result most votes cast by proxy. At election to replace two directors at AGM in Sep- tember 2013, chair declared 135 of tendered proxies invalid, 75 on account of tampering and re- mainder on other grounds such as owner being in arrears and, therefore, not entitled to vote. A.G. elected as director with 255 votes and S.G. elected as direc- tor with 248 votes. However, on receipt of further information several weeks later, chair found there was genuine possibility multiple proxy forms had been improperly altered. Chair de- clared all proxy forms invalid, even those with no apparent alterations, and decertified elec- tion. Purporting to act on be- half of corporation, old board commenced application to set election aside. Also purporting to act on behalf of corporation, new board commenced applica- tion to uphold election. No un- successful candidate or grantor of proxy participated or offered evidence. Old board's applica- tion dismissed; new board's ap- plication allowed. No question chair of AGM had jurisdiction and discretion to examine all ballots, decide their validity, count votes cast and declare re- sult of election. However, once declaration made, chair's role complete and result final and binding unless reversed by court. Chair committed legal error by reconsidering result and decertifying election sev- eral weeks later. While court had jurisdiction to do so, alle- gation of improper tampering with proxies unsupported by evidence and result of election should be affirmed. York Condominium Corp. No. 42 v. Gosal (Apr. 2, 2014, Ont. S.C.J., Penny J., File No. CV- 14-496029, CV-14-496588) 240 A.C.W.S. (3d) 1031. Torts NEGLIGENCE Plaintiff did not establish causal connection between delin- quency and loss of mortgage Plaintiff claimed $25,000 in damages from defendant for negligent misrepresentation, mental distress, libel, and slan- der for reporting delinquency to credit reporting agency. In June 2009, plaintiff said that she took advantage of defendants no-fee-no-payments-required- for-one-year special offer to ob- tain credit card for defendant's store. Plaintiff was approved immediately and purchased sev- eral thousands of dollars of mer- chandise. Plaintiff claimed that she was not given copy of credit card agreement, and terms and conditions were never mailed to her. When payment for balance on card became due, plaintiff did not pay full balance and in- curred interest charges as result on original transaction amount. As result of late payment of bal- ance on her credit card, delin- quency was reported to credit- reporting agency, which nega- tively affected her credit score. Plaintiff was purchasing home at time and claimed, as result of change in her credit status, she was forced to obtain mortgage with higher rate of interest. Ac- tion dismissed. Every monthly credit card statement advised that to avoid paying accrued in- terest charges, cardholder had to pay off plan balance by expi- ration date shown. Plaintiff did make late payment on her credit card, and information reported to credit-reporting agency was correct. Delinquency was later removed by agency when plain- tiff indicated she was going to dispute charges. Plaintiff did not establish causal connection between delinquency registered and loss of her original mort- gage with bank. Plaintiff also failed to present evidence that statements made to her about terms and conditions of credit card were wrong. Maftoun v. Home Depot (Oct. 17, 2013, Ont. S.C.J., Granovsky D.J., File No. Toronto SC-10- 107754-00) 240 A.C.W.S. (3d) 1045. ONTARIO CRIMINAL DECISIONS Appeal RIGHT OF APPEAL Court concerned that accused may not have had full and fair opportunity to argue motion Accused applied for leave to ap- peal under s. 131 of Provincial Offences Act (Ont.). As result of pre-trial negotiations, accused pleaded guilty to provincial offence regarding zoning by- law. Joint submission consisted of fine of $3,500 payable over course of one year. When fine bore unexpected surcharge, ac- cused appealed fine levied by trial justice. Matter was not per- fected within 30 days of accused receiving notice from court that transcript was ready to be picked up. Accused showed up on date of appeal with transcript in hand and explained that there had been two deaths in family and that he had been in and out of town. When accused indicat- ed that his mother could not af- ford to pay fine because she was old and sick, court dismissed appeal for lack of valid grounds. Accused argued that delay was largely result of tardiness in transcript preparation by court office, and that appeal should have been allowed to continue. Application allowed. Accused had right to appeal. Accused reasonably explained delay in producing transcript that led to motion, and missing transcript was available. Having reviewed transcript, court was concerned that accused, who represented his mother, may not have had full and fair opportunity to ar- gue motion or appeal. It was in interests of due administration of justice that leave be granted. R. v. Massara (Aug. 15, 2013, Ont. C.A., P. Lauwers J.A., In Chambers, File No. CA M42705) 113 W.C.B. (2d) 611. Arrest LEGALITY Accused's arrest and custody occurred during extenuating and exigent circumstances Application by accused for stay of proceedings because he claimed that his rights under Canadian Charter of Rights and Freedoms were violated. During unrest that occurred during June 2010 Toronto G20 Economic Summit, accused, who was American citizen, was charged with wearing disguise with intent to commit indict- able offence and with three counts of mischief, as result of his participation in that unrest. Crown claimed that accused was member of group that en- gaged in campaign to damage property at various locations in city. On June 26, 2010 accused was alleged to have smashed windows in bank, at commer- cial emporium and at police headquarters. He was, however, arrested for unrelated mat- ter on June 27, 2010 and officer arrested him because he was ordered to do so by superior of- ficer. Crown conceded that this arrest was unlawful. When he was arrested he was searched and his possessions were seized without articulable cause, con- trary to s. 8 of Charter, and his CASELAW

• Cover