Law Times

Law Times • apriL 20, 2015 Page 17 www.lawtimesnews.com of Insurance Act (Ont.). Motion granted. Plaintiff had history of workplace accidents that caused him to have significant impair- ment to his right shoulder and arm. However, he was left hand dominant and was able to con- tinue to work as forming car- penter. Plaintiff claimed that he sustained left shoulder injury in accident. He continued to work. In October 2011 plaintiff un- derwent arthroscopic surgery to repair rotator cuff tear in his left shoulder. He was back at work after missing only 17 days. Jury's conclusion was consistent with finding that accident caused plaintiff 's left shoulder pain. However, motion judge was un- able to find that plaintiff 's injury substantially interfered with his ability to continue his regular or usual employment, or with his usual activities of daily living. His testimony regarding sever- ity of his subsequent difficulties due to accident was not persua- sive. Plaintiff had continued to work in same job in which he was engaged pre-accident, for more than four years since ac- cident. His evidence about his intention to retire due to his left shoulder problems was suspect. Moreover, in awarding plaintiff nothing for future income loss, jury found that, going forward, plaintiff was capable of working. Plaintiff failed to bring his ac- tion within exceptions to statu- tory immunity in s. 267.5(5) of Act. Berfi v. Muthusamy (Feb. 12, 2015, Ont. S.C.J., Stinson J., File No. Toronto CV-12-463168) 250 A.C.W.S. (3d) 326. Judgments and Orders SETTING ASIDE Defendants did not have arguable defence on merits Corporate defendants were controlled by L and were incor- porated to take title to units be- ing purchased in development. Default judgment was granted against corporate defendants. Corporate defendants applied to set aside default judgment. Ap- plication dismissed. Real issue was whether corporate defen- dants had arguable defence on merits. Corporate defendants alleged that they were duped by fraud into purchasing residen- tial units and that plaintiff was either involved in scam or was vicariously liable for it. It was clear that development likely involved fraud or was there was substantial negligence. How- ever, there was no evidence and there were no facts pleaded to support allegations that plain- tiff was involved in or knew or had any knowledge of any al- leged misrepresentations or fraud or to support allegations that plaintiff was vicariously li- able for any misrepresentations or fraud of others. Allegations made by corporate defendants were bald assertions that were not by any facts or evidence. Plaintiff advanced funds toward defendants' purchase of units in question which was intended purpose for defendants entering into mortgage transactions. If mortgages were somehow void or unauthorized, corporate de- fendants would be obligated to return funds advanced to plain- tiff. It was intent of L, principles of defendant corporations, that corporations gave mortgages on units being purchased in con- sideration of plaintiff advancing portion of purchase funds and that was what happened. De- fence raised was without merit. Corporate defendants got mort- gage funds and plaintiff got mortgages and that was what parties' intended. Corporate de- fendants had not raised triable issue. Hilson v. 1336365 Alberta Ltd. (Feb. 27, 2015, Ont. S.C.J., Lof- chik J., File No. 11-31827) Addi- tional reasons to 243 A.C.W.S. (3d) 568. 250 A.C.W.S. (3d) 328. Limitations CROWN Triable issue existed with respect to limitation defence Crown owed mineral rights under lake bed. For operator to drill for oil on-shore in spacing unit that included near-shore areas, on-shore operator would have had to lease contiguous Crown-owned near-shore rights to complete spacing unit. Plain- tiff asserted that spacing plan introduced by Ministry in 1988 had effect of locking freehold oil rights interests of affected property owners with Crown's property interests. In 1993 On- tario government published Regulation under Mining Act (Ont.) that provided ministry with authority to grant leases of near-shore rights. In 1994 Pe- troleum Resources Act (Ont.) was amended to permit min- ister to establish spacing units rather than by enactment of Regulation. Plaintiff 's brought action in 2001 claiming $20 million and declaratory relief on basis of three sets of alleged con- traventions of plaintiff 's rights and interests. Between 2005 and 2010 action did not advance. Ex- aminations for discovery were conducted in 2013. Limitation period raised was s. 7(1) of Pub- lic Authorities Protection Act (Ont.) ("PAPA") which provided that proceedings against public authority had to be commenced within six months after cause of action arose. Action continued for 12 years before defendant brought motion for summary judgment on limitation defence. Motion dismissed. There was sufficient evidence in record to conclude there were some pri- vate aspects of defendants' activ- ities which, viewed in isolation would not attract application of s. 7(1) of PAPA. It could not be said that claim related to public activities to sufficient degree to find that there was no triable issue with respect to limitation defence. Mini-trial was unlikely to be effective aid to resolution of dispute. Public and private qualities of defendant's activities were woven into threads of evi- dence and extricating them by any means other than trial was likely to be fruitless exercise. Farmers Oil & Gas Inc. v. Ontar- io (Ministry of Natural Resourc- es) (Jan. 14, 2015, Ont. S.C.J., Mew J., File No. CV-01-219653) 250 A.C.W.S. (3d) 333. Mental Health INCOMPETENT PERSONS Board's decision confirming doctor's finding of incapacity was reasonable Appellant was 43-year-old edu- cated woman. She had been di- agnosed with schizophrenia in 2004, and since 2009, had been subject of Community Treat- ment Order (CTO). CTO re- quired her to take antipsychotic medication in relatively low dose, to attend appointments with respondent doctor and occupational therapist and to submit to blood work or urine testing. Primary purpose of ap- pointments and testing was to monitor appellant's compliance with her antipsychotic medica- tion. While under CTO, appel- lant had become active and en- gaged community member with variety of interests, especially in arts. She lived independently in stable housing. She had not had psychiatric admission to hospi- tal since 2009. CTO had been renewed many times since 2009, unchanged. Appellant appealed from two decisions of Consent and Capacity Board dated July 19, 2014, which confirmed find- ing of incapacity made by re- spondent doctor and confirmed CTO. Appeals dismissed. Board's decision confirming doctor's finding of incapacity was reasonable. Appellant's ac- knowledgment of mental illness was not consistent with ability to appreciate or recognize past and current manifestations of her mental condition. Appel- lant reiterated her desire to stop medication throughout her tes- timony before board. Board had before it considerable evidence relating not only to appellant's past history but also to her likely continuing pattern of noncom- pliance and readmission. It ac- cepted evidence that without CTO, due to her mental disor- der, appellant likely would not take antipsychotic medication, would suffer substantial men- tal deterioration as result, and would likely require re-hospital- ization. There was considerable evidence before board that doc- tor did timely assessment and did consider appellant's prog- ress in reaching his opinion. Board's confirmation of renewal of CTO was reasonable. Ness v. Geagea (Feb. 2, 2015, Ont. S.C.J., Matheson J., File No. CV-14-509155, CV-14- 509159) 250 A.C.W.S. (3d) 337. Planning BUILDING INSPECTOR Court did not have jurisdiction to grant type of interim relief sought by builder City's building inspector made order that found home con- structed and sold by builder to owners was in unsafe condition because its concrete founda- tion was structurally deficient. Builder was ordered to take re- medial action. Builder appealed pursuant to s. 25 of Building Code Act, 1992 (Ont.). Builder applied for interim order per- mitting it and its engineer- ing experts to access property and take certain samples from home's concrete foundation. Application dismissed. Builder should not have pursued relief through alternate procedures. Builder was compelled to seek relief within mandated context of appeal pursuant to s. 25 of Act. Court did not have jurisdiction, in specific context of s. 25 ap- peal, to grant type of interim re- lief sought by builder. In exercis- ing appellate jurisdiction con- ferred by s. 25 of Act, court did not have unfettered jurisdiction to take whatever action or make whatever remedies it considered appropriate. Section 25 of Act conferred and limited court's appellate jurisdiction. Judge of Superior Court of Justice ex- ercising appellate jurisdiction conferred by Act was permitted to step into shoes of inspector to exercise whatever authority and powers inspector might have. If inspector did not have authority under Act to make sort of or- ders builder sought then court had no authority. Granting re- lief sought would entail finding that inspector had authority to make orders compelling reluc- tant private homeowner to open property to other private par- ties who were not working with and for inspector, but who were seeking to advance their own in- terests, which might be adverse to interests of homeowner. That would be contrary to purpose and intention of Act. Court had no jurisdiction to grant interim relief sought by builder. Birani Homes Ltd. v. London (City) (Feb. 17, 2015, Ont. S.C.J., I.F. Leach J., File No. 32-15) 250 A.C.W.S. (3d) 338. Sale of Land MISREPRESENTATION Defendants concealed chronic water damage and resulting mould Plaintiffs purchased home from defendants pursuant to agreement of purchase and sale dated March 4, 2010. Purchase price was amount of $236,000. Agreement was conditional on plaintiffs obtaining satisfactory building inspection. Plaintiff K was building inspector. He conducted inspection himself and plaintiffs waived condition in agreement. Purchase trans- action of home closed on May 21, 2010. Three weeks after they moved in, plaintiff T stripped some wallpaper in basement and discovered moisture prob- lem. All walls in basement of home had mould on back of drywall. Expert concluded that moisture and mould was caused by insufficient drainage. Plain- tiffs sued defendants for gen- eral damages of $200,000, and damages for amount required to remedy moisture problem. Parties agreed that amount of damages for remediation and repair would be $54,738.87 for special damages and $ 8,650 for labour costs. Action allowed. There was no warranty or repre- sentation signed by parties that survived closing of transaction. If plaintiffs had any action, that action must be founded upon fraudulent misrepresentation. Court found that defendants knew about moisture problem and concealed fact that there was chronic water damage and resulting mould. Water dam- age was extensive and resulting mould made premises uninhab- itable. Plaintiffs were awarded agreed upon amounts for reme- diation and repair. They were also awarded general damages of $30,000 for inconvenience and stressful living conditions caused by water problem. Kelly v. Pires (Feb. 18, 2015, Ont. S.C.J., R..J. Harper J., File No. CV 10-620 BRT) 250 A.C.W.S. (3d) 344. Taxation INCOME TAX Phrase "from the final script stage" in s. 92(5.3)(d) of Taxation Act, 2007 (Ont.) includes costs incurred during that stage Taxpayer produced television series and was "qualifying cor- poration" entitling it to benefit of Ontario Production Services Tax Credit under s. 92 of Taxa- tion Act, 2007 (Ont.). Minister of National Revenue, as delegate for Ontario Minister of Finance, refused to allow taxpayer to in- clude expenditures incurred for writing services in calculation of expenses eligible for tax credit because they did not relate to services provided after final script stage. Taxpayer appealed on basis that phrase "from the final script stage" in s. 92(5.3)(d) of Act includes costs incurred during that stage. Appeal al- lowed. Minister erred in ex- cluding from calculation under s. 92(5.3)(d) of Act costs related to final script stage. While early stages of script writing occurred in preproduction, final stage, being second draft script, was integrally involved with pro- duction, and final script chang- es occurred during production. Purpose of tax credit was to provide incentive to produc- ers to spend production money in Ontario, and preproduction costs were not included. If Leg- islature had wished to exclude all writing costs from tax credit, it could have added subsection to say so expressly, or it could have used word "after" instead of "from". Legislature must have used phrase "final script stage" to sub-divide script writing into preproduction and production stages. Viewed in light of statu- tory purpose, contextual use of "from" rather than "after" took on more deliberate hue. Word "from" must be inclusive in this case in order to catch expenses that Legislature intended to fit CASELAW

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