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Page 14 March 2, 2015 • Law Times www.lawtimesnews.com from custody order. Appeal al- lowed. There was absolutely no evidence to support finding best interests of child would be better served if taken into father's cus- tody after living only with moth- er since 2006. Order was made based on father's unsworn affida- vit evidence and decision based on child not being registered in school, despite evidence she was being homeschooled. There was also persuasive evidence mother did not have notice of hearing, and lack of service was not dealt with before custody order was made. When mother applied to set aside, court erred in failing to recognize her default was not deliberate and she had defence on the merits. Order dismissing application to set aside custody order was vacated and final cus- tody order was set aside, with sta- tus quo to be returned pending final determination. Hunter v. Johnson (Oct. 31, 2014, Ont. S.C.J., Seppi J., File No. FS-14-2388-00) 247 A.C.W.S. (3d) 147. PLEADINGS Officers owed fiduciary duty to group of companies and not shareholders Shareholders owned shares in group of companies that oper- ated casinos and gaming facili- ties in Jamaica and Dominican Republic. Shareholders were ultimately ousted from group of companies. Shareholders alleged creditor and officers conspired to effect change in control over group of companies and to fab- ricate evidence for use in civil proceedings. Shareholders com- menced action against credi- tor and officers for damages for breach of fiduciary duty, unlaw- ful interference with economic relations, injurious falsehood, defamation, and conspiracy. Of- ficers brought motion for order striking out statement of claim as against them for failing to disclose reasonable cause of ac- tion. Motion granted on terms. Most claims were struck with leave to amend but all claims based on harm to group of com- panies were struck without leave to amend. No fiduciary duty was owed to shareholders by officers. Officers owed fiduciary duty to group of companies and not shareholders. Shareholders failed to plead any causes of action that would have allowed them to take issue with conduct of officers, such as derivative action or op- pression remedy. Shareholders failed to plead all necessary ele- ments of injurious falsehood, unlawful interference with eco- nomic relations, and conspiracy. Claim based on defamation had not been properly pleaded but only required sufficient particu- lars to be given. Carbone v. DeGroote (Oct. 29, 2014, Ont. S.C.J., Firestone J., File No. CV-14-499554) 247 A.C.W.S. (3d) 55. Contracts MISREPRESENTATION Residents' clause in contract merged in deed on closing Plaintiff purchased property from defendant. Plaintiff as- serted number of residents in home for special care at time of closing was below number re- quired by agreement. Plaintiff asserted agreement with neigh- bouring church about shared driveway was not property right that would exist in perpetu- ity contrary to defendant's oral representation and wording of agreement of purchase and sale. Plaintiff asserted defendant was liable for costs of replacing home's septic system on basis that defendant knew at time of closing that system was not in satisfactory working order and did not disclose it. Plaintiff al- leged she suffered damages as result of defendant's breaches of warranties and representa- tions made orally and in agree- ment of purchase and sale. Ac- tion dismissed. Plaintiff was not entitled to damages based on reduced occupancy of home at time of closing. Plaintiff actu- ally knew there were only 18 and not 20 paying residents at date of closing. Her reliance on defen- dant's statutory declaration was not credible and was unreason- able in circumstances. Plaintiff could not recover damages for reduced occupancy in contract because residents' clause in con- tract provided clear remedy of which plaintiff was aware but chose not to pursue. Residents' clause merged in deed on clos- ing. Plaintiff was not entitled to recover on basis of negligent misrepresentation because her assertion that she relied on de- fendant's statutory declaration was not credible, and even if she did rely on it such reliance was patently unreasonable. Claim for damages for breach of war- ranty or representation with respect to driveway was without merit. Defendant never made oral representation or warranty regarding driveway, and any oral representation made could not have formed part of agree- ment. Driveway clause was not representation or warranty that property right existed. Plain- tiff was not entitled to damages in relation to repairs to septic system. Defendant made no negligent misrepresentation with respect to septic system that would entitle plaintiff to recover damages. Defendant in- dicated repairs to septic system in 2004 were successful and it was reasonable for defendant to believe that septic system oper- ated satisfactorily. Septic system was operating satisfactorily at time of closing and there was no satisfactory evidence to support conclusion that septic system was in state of disrepair at time of closing. Plaintiff did not show defendant knew of any defect with septic system. Warranty in agreement with respect to septic system applied only to state of septic system as it existed at time of closing. Philp v. Brunelle (Oct. 31, 2014, Ont. S.C.J., Archibald J., File No. 07-CV-328429PD3) 247 A.C.W.S. (3d) 93. Employment OCCUPATIONAL HEALTH AND SAFETY Candidate not shown to have been violent or to have made threats of violence Outspoken but unsuccess- ful candidate for councillor in municipal election became in- volved in litigation with munici- pality. Candidate left his usual audio recording device running in council chamber after council went into closed session where this litigation could have been discussed. After discovering de- vice, council passed resolution in 2012 banning candidate from entering onto municipal prop- erty. Candidate commenced application for order quashing 2012 resolution. Application was withdrawn after munici- pality agreed to reconsider 2012 resolution. Council passed sim- ilar but more extensive resolu- tion in 2013 after candidate con- tinued to engage in what council regarded as disruptive activities. Candidate brought application for order quashing both resolu- tions. Council passed resolution in 2014 repealing prior resolu- tions and substituting more lim- ited ban. Application dismissed on terms. In light of 2014 resolu- tion, no relief was necessary but merits were considered in con- text of costs. Only 2013 resolu- tion would have been quashed, so parties were required to bear their own costs due to divided success. Occupational Health and Safety Act (Ont.), did not provide basis for passing 2013 resolution. Provisions that mu- nicipality sought to rely on were directed at protecting workers from workplace violence. Can- didate was not shown to have been violent or to have made threats of violence that would have reasonably caused anyone to fear for their safety. Evidence was conf licting with respect to whether candidate had engaged in several types of conduct of which he was accused. Gammie v. South Bruce Penin- sula (Town) (Oct. 29, 2014, Ont. S.C.J., Price J., File No. Owen Sound 13-188) 247 A.C.W.S. (3d) 211. WRONGFUL DISMISSAL Marks would not have been released if it were such egregious failing on plaintiff 's part Defendant employed plaintiff for 10 years and three months and was well-regarded teacher. Over six week period plain- tiff created marks. Defendant terminated plaintiff 's employ- ment. Defendant asserted plain- tiff was dismissed for cause based on plaintiff 's inaccurate record-keeping and calculations that resulted in undue bonuses or penalties that impacted stu- dent marks. Defendant asserted plaintiff fabricated marks and admitted to academic fraud. Plaintiff denied he commit- ted academic fraud and denied admitting to doing so. Plaintiff admitted his marks were late and his calculations for aver- ages were incorrect. Defendant knowingly sent out marks to students. Plaintiff made no ef- forts to find employment be- cause his doctor told him not to because of medical issues. Plaintiff brought action for wrongful dismissal. Action al- lowed. Plaintiff was awarded damages for wrongful dismissal of $51,918. Plaintiff 's damages for loss of long-term disability benefits was to be calculated on consent or after further submis- sions. Claim for intentional in- f liction of mental distress was dismissed. Claim against em- ployee of defendant personally was dismissed. Plaintiff was do- ing incompetent job of assess- ing students, marking students and recording those marks. Plaintiff admitted to falsifying marks at meetings. There were three meetings and there must have been admission by plain- tiff at second meeting to gener- ate need to have another meet- ing. Until meeting plaintiff lied to defendant about how marks were calculated. Plaintiff lied to court about how presentations were marked. Immediate termi- nation was not appropriate. De- fendants could have fashioned reprimand and warning that such conduct if repeated would lead to summary dismissal. Fact that defendant knowingly sent out interim marks confirmed that marks were not as serious as defendant or students submit- ted. Marks would not have been released if it were such egregious failing on plaintiff 's part. Fernandes v. Peel Educational & Tutorial Services Ltd. (Nov. 12, 2014, Ont. S.C.J., Lemon J., File No. CV-09-03521-00) 247 A.C.W.S. (3d) 121. Family Law CHILD WELFARE Parents failed to meet high threshold for parental access Parties had four children. Soci- ety became involved with fam- ily after oldest child disclosed to teacher that father had hit him. Second oldest child also dis- closed that parents assaulted her. All children were apprehended and parents were charged with multiple counts of assault. Chil- dren were diagnosed with post- traumatic stress disorder. Two older children demonstrated serious emotional and behav- ioural difficulties. On motion for summary judgment four orders were made finding chil- dren in need of protection and making children Crown wards without access by parents. Each child had right of access to other children. Parents appealed. Ap- peal dismissed. Parents had ob- ligation to bring forward facts that showed there was genuine issue for trial, which they failed to do. Parents had ample time and opportunity to respond ful- ly to society's evidence. Motion judge's decision provided fair and accurate review of evidence. Any misstatement or misun- derstanding of evidence related to matters of little consequence and had no impact on decision. Even if some of trauma children experienced occurred while they were in care, that did not change fact that children suffered psy- chological harm and were at con- tinued risk of such harm. Parents had done nothing about harm that occurred before apprehen- sion. There was ample evidence to justify motion judge's finding that children were in need of pro- tection and parents did not put forward evidence that demon- strated that trial was necessary on that issue. There was no viable plan for kin or community place- ment. Motion judge correctly concluded that parents would do nothing to address children's multiple problems. There was no realistic chance of success at trial for parents' request that children be returned to their care. No form of supervision order could adequately protect children. Par- ents failed to meet high threshold for parental access. Catholic Children's Aid Society of Toronto v. Y. (A.M.) (Nov. 10, 2014, Ont. S.C.J., Perkins J., File No. FS-13-19030) Decision at 234 A.C.W.S. (3d) 131 was affirmed. 247 A.C.W.S. (3d) 131. CUSTODY Father's plan better recognized principle of maximum contact between children and parents Parties lived together for eight years and were then married for five years. Parties had two chil- dren. Father worked as nuclear operator and lived with new part- ner. Mother worked part-time as customer care representative. Children primarily resided with mother. Parties' homes, work- places and children's schools were within 20 minutes of each other. Father applied for joint and shared custody of children. Ap- plication granted. Children had strong emotional ties to mother. Children had lived with mother since separation and enjoyed stable home environment. Both parents were capable and willing to provide children with proper guidance, education and neces- saries of life. Mother wanted sole custody of children but father's plan better recognized principle of maximum contact between children and parents. Father's plan was more reasonable. Fa- ther was in committed relation- ship. Parties had equal parenting abilities. Mother had made some baseless accusations against fa- ther and demonstrated resent- ment and rigidness, which led to concerns that maintaining status quo would marginalize father in children's lives. It would be in children's best interests to spend equal time with both of loving, stable and fit parents. Joint cus- tody and shared parenting was in children's best interests. C. (D.) v. C. (H.) (Nov. 18, 2014, Ont. S.C.J., Conlan J., File No. FS 4832/12) 247 A.C.W.S. (3d) 148. PROPERTY Clear intent of trust was to be tax planning tool Parties were married 21 years and had two children. Wife CASELAW

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