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Law TiMes • March 28, 2011 (Ont.), had not been breached. Applicant brought judicial re- view application with Divisional Court. Respondents brought motion to dismiss application on ground that court had no jurisdiction. Motion allowed. Th at proceeding was out- side jurisdiction of Divisional Court was plain and obvious. Divisional Court was creature of statute and had no inherent jurisdiction. Judicial Review Procedure Act (Ont.), allowed court to intervene only in mat- ters where government power had been exercised as to aff ect rights of individuals. Under Arbitration Act, 1991 (Ont.), only court with jurisdiction to review arbitration decision was Superior Court of Justice. Court's jurisdiction was ousted by contract signed by applicant which provided that all disputes were to be resolved by binding arbitration. Arbitration process was not exercise of public pow- er but rather matter of private contract. Respondents satisfi ed onus that Divisional Court had no jurisdiction to grant relief claimed by applicant. Judicial review application dismissed. Adams v. Canada (Attorney General) (Jan. 17, 2011, Ont. S.C.J. (Div. Ct.), Molloy J., File No. 223/09) 197 A.C.W.S. (3d) 105 (17 pp.). Debtor And Creditor GARNISHMENT Incumbent on bank to advise court of garnishee's position Bank obtained default judg- ment against Cameron. Bank issued notice of garnishment. Garnishee acknowledged re- ceiving notice of garnishment. Garnishee believed garnishee had no liability because gar- nishee never employed debtor and believed there were no debts owing from garnishee to debtor that could be attached. Garnishee communicated posi- tion to bank's law fi rm but did not formally respond to notice. Bank obtain judgment against garnishee for full amount ow- ing. Garnishee failed to attend motion through inadvertence. Garnishee sought to set aside judgment. Motion was al- lowed. It was incumbent on bank to advice court of infor- mation bank had regarding garnishee's position that it had no relationship with debtor. Court was inadvertently mis- led. No prejudice accrued to bank apart from costs. Canadian Imperial Bank of Commerce v. Cameron (Jan. 5, 2011, Ont. S.C.J., Wein J., File No. CV-08-564-00) 197 A.C.W.S. (3d) 115 (12 pp.). Financial Institutions CHEQUES Action alleging banks profited at customer's expense when they placed "hold" on cheques not certified Plaintiff s moved for certifi ca- tion class actions. Th ey al- leged that banks profi ted at their customer's expense when they place "hold" on cheque deposited in customer's ac- count. Th ey asserted that there was delay between time cheque was "paid" by drawee bank and time funds were made avail- able to customer at branch of deposit. During this delay, bank made use of its customer's money. Pleadings in three ac- tions were substantially same. At their core, they asserted that banks were obliged to release held funds on funds "clearing", or bank having "received pay- ment" or being "fi nally paid" or being able to "verify payment" or on cheque having been "set- tled". Actions could not be certifi ed. Plaintiff s had built theory that had no basis in fact or law and had attempted to construct class action around it. Th eory was that cheque was "paid" at some point in clear- ing system, either in clearing between banks or when drawee bank debited its customer's ac- count; time of "payment" could be identifi ed; hold could not be justifi ed for more than "reason- able time" after cheque had been paid; and judge at com- mon issues trial could deter- mined what that time should be. Although expressed in more neutral terms, common issues were premised on validi- ty of this theory. Problem with this theory was that it focused on clearing, and on actions of drawee bank, which had noth- ing to do with relationship be- tween collecting bank and its customer. Modern hold pro- cess is necessary because col- lecting bank only knows that it can safely assume that cheque will be honoured when it has not been returned dishonoured through clearing within time permitted by clearing rules. Even then, those rules only de- fi ne time within which return must be initiated by drawee, they do not defi ne time within which collecting bank must be actually notifi ed that cheque will not be honoured. Evidence is clear that there is no specifi c date on which bank can know defi nitively that cheque will not be honoured. However, as practical matter, banks are pre- pared to accept risk, subject to their rights of indemnity, after passage of times set out in their account agreements. Plaintiff s agreed to those terms. Actions of defendants, as pleaded, were consistent with those terms. Motion for certifi cation was dismissed. Re-Collections Inc. v. Toronto- Dominion Bank (Nov. 30, 2010, Ont. S.C.J., Strathy J., File No. 07-CV-330150CP; 07-CV-329683CP; 07-CV- 332402CP) 197 A.C.W.S. (3d) 24 (85 pp.). Planning DEMOLITION PERMIT Live-in work units on property sought to be demolished were residential property Chief Building Offi cial was correct in refusing to issue de- molition permit to allow S.S. to demolish buildings on its property. Live-in work units on property sought to be de- molished were residential prop- erty as defi ned under s. 33(1) of Planning Act (Ont.), in CASELAW that they were dwelling units that were used or designed for use as domestic establish- ment in which one or more persons may sleep and prepare and serve meals. Defi nition of "residential property" under s. 33(1) of Planning Act (Ont.), does not require building to be exclusively made up of resi- dential units but contemplates dwelling units contained with- in or adjacent to industrial or commercial spaces. Similarly, defi nition of "dwelling unit" does not provide that sole use of property is as domestic es- tablishment. As property was located in City of Toronto, designated area of demolition control, any demolition permit must be obtained from City of Toronto. Sterling Studio Lofts Inc. v. Toronto (City) Chief Building Offi cial (Jan. 11, 2011, Ont. S.C.J., Roberts J., File No. CV- 09-00372786) 197 A.C.W.S. (3d) 261 (8 pp.). Sale Of Land AGREEMENT OF PURCHASE AND SALE Claim extinguished by mutual release could not be resurrected under agreement of purchase and sale Application to enforce claimed rights under agreement of pur- chase and sale for purchase of lots in subdivision concluded in 2003. Global settlement with full and fi nal release in respect of claims arising from subdivision project concluded on June 11, 2008. Mutual re- lease provided that parties had no further obligations, duties or entitlements pursuant to their business relationships or otherwise and included provi- sion that release did not extend to respective rights in respect of agreement of purchase and sale. Claim by applicant relat- ed to costs of removal in April 2010 of earth stockpile from applicant's land in subdivision. Applicant conceded that it knew of excess fi ll before settle- ment and mutual release. No express reference in settlement agreement to any claim by ap- plicant as to removal of excess fi ll. Application dismissed. Applicant had not met onus that cost arose by virtue of ap- plicant having claim arising from right under agreement of purchase and sale. Reasonable inference that respondent had authorization of applicant to situate excess fi ll as it did or at the least reasonably consid- ered that it had such authoriza- tion. Cost of removal of excess fi ll had been live issue prior to settlement agreement and mutual release and would have been expressly addressed in settlement of existing claims. Absence of any reference to asserted claim prior to global settlement gave rise to reason- able inference that respondent had consent of applicant to situate excess fi ll without any obligation to pay for cost of removal. No evidence of any asserted claim until after global settlement agreement. Any vi- able claim due to operation of www.lawtimesnews.com agreement of purchase and sale extant prior to date of settle- ment and extinguished. Claim extinguished by mutual release could not be resurrected un- der agreement of purchase and sale. Humberplex Developments Inc. v. Wycliff e Humberplex Ltd. (Jan. 24, 2011, Ont. S.C.J., Cumming J., File No. 09-8468- 00CL) 197 A.C.W.S. (3d) 278 (6 pp.). Torts MISFEASANCE IN PUBLIC OFFICE Minister's request for setting aside of litigation was not unreasonable Plaintiff Indian Band sued for damages said to have been suff ered by band as result of defendant Minister of Indian and Northern Aff airs' alleged misfeasance in public offi ce and injurious falsehood with respect to various projects on reserve. Specifi cally, band al- leged that Minister personally assumed responsibility for ad- ministration of this band and in eff ect held up all projects on reserve until band agreed to co-management on con- ditions. Band alleged that Minister acted unlawfully and misused his power by holding third party interven- tion over band, by attempt- ing to deny band access to courts and by insisting upon favourable media statements and that Minister intended to injure band by cancelling and delaying health and safety projects in order to achieve his PAGE 19 illegal or wrongful objectives. Projects were not mandatory. Minister could not be con- victed of failing to act when he had no legal obligation to act. Th ese projects involved millions of dollars of discre- tionary spending. Major legal argument was that Minister acted illegally by insisting that band "suspend" litigation that had come into being as result of dispute between band and INAC. Diffi culty with this argument was that it was not shown that Canadians had ab- solute right to water and sewer. Appointment of third party manager was not wrongful, but rather reasonable under inter- vention policy in circumstanc- es. Even if appointment of manager was wrongful, it was action of department and there was no independent action against Crown for actions of department. Minister did not cancel any project. At most, he deferred it pending complete resolution of existing dispute. Parties were engaged in legiti- mate disagreement. Finally, it appeared compromise had been reached. Minister simply said that before he accepted settlement he wanted all loose ends including outstanding litigation tidied up. Minister's request for setting aside of liti- gation was not unreasonable. Band failed to prove its case. Action was dismissed. Pikangikum First Nation v. Nault (Dec. 23, 2010, Ont. S.C.J., deP. Wright J., File No. CV-03- 050) 197 A.C.W.S. (3d) 111 (94 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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