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Law Times • February 8/15, 2010 Developer proposed to build fi ve semi-detached dwellings on property zoned for four single family units. Property was adjacent to closed landfi ll site that was currently being used as park land. Developer had informal discussions with municipal offi cials. Developer claimed municipal offi cials as- sured him rezoning would be approved. Developer proceed- ed to purchase property while knowing waste from landfi ll was encroaching on property. Municipality was unable to ap- prove rezoning due to Minis- try of Environment ("MOE") setback Guidelines. Developer contended municipality should be responsible for proper reme- diation of boundary between property and landfi ll such that MOE Guidelines would be satisfi ed and rezoning could be approved. Action dismissed. Developer failed to establish nuisance. Landfi ll was not cur- rently causing any substantial interference with developer's property. Restrictions on de- velopment of developer's prop- erty could not in themselves be regarded as nuisance. Landfi ll did not interfere with current use of developer's property un- der current zoning. Alleged in- terference with use of property would not arise in absence of change in zoning. Developer was not entitled to develop property as it pleased. Devel- oper had to accept character of neighbourhood that existed when he purchased property. Municipality's restrictions were not arbitrary or unreasonable. Nothing indicated municipal- ity failed to act in good faith in accordance with its statutory obligations. If developer had succeeded, its damages would have been assessed at only $20,000, representing diff er- ence between what developer had paid and what property was currently worth. Gatta Homes Inc. v. St. Catha- rines (City) (Nov. 27, 2009, Ont. S.C.J., Taliano J., File No. 45135/03) Order No. 009/335/039 (59 pp.). Professions BARRISTERS AND SOLICITORS Plaintiff failed to show that solicitor fell below standard of care reasonably expected in circumstances Action by plaintiff against his former solicitor for breach of fi duciary duty and professional negligence. Plaintiff retained solicitor to advance his claim under Family Law Act (Ont.), in relation to tort claims of his wife. Plaintiff alleged that he saw his wife performing oral sex on solicitor. Plaintiff also claimed that solicitor failed to prosecute his claim on timely basis. Solicitor denied sexual conduct and claimed that he advised plaintiff to retain an- other lawyer. Action dismissed. Plaintiff was not credible. Plaintiff failed to show that solicitor fell below standard of care that would reasonably be expected in circumstances. Passarelli v. Startek (Nov. 13, 2009, Ont. S.C.J., Belobaba J., File No. 05-CV-287425PD1) Order No. 009/320/043 (7 pp.). PHYSICIANS AND SURGEONS Defendants' negligence caused or con- tributed to failure to diagnose PKU Child tested positive for PKU twice after birth. Th ird PKU test result was normal. Child was diagnosed with PKU at age three years. Plaintiff s claimed negligence of laboratory and doctor caused or contributed to failure to make timely diagno- sis of PKU. Claim was allowed. Both defendants were negligent. Defendants' negligence caused or contributed to failure to di- agnose PKU and deprived child of opportunity for intervention and treatment. Doctor fell be- low standard of care in order- ing third test and was negligent. Fault was apportioned 75% to Crown and 25% to doctor. Cleveland (Litigation Guard- ian of ) v. Hamilton Health Sci- ences Corp. (Dec. 15, 2009, Ont. S.C.J., Lax J., File No. 00-CV-196146CM) Order No. 009/350/017 (23 pp.). Sale Of Land WARRANTY Tribunal did not err in finding that warranty ran with land License Appeal Tribunal found that appellants ceased to have standing. Appellants bought new home from respondent M.H.. Appellants advanced number of claims to respon- dent T.W. under Ontario New Home Warranties Plan Act re- lating to construction of home. T.W. denied number of claims on grounds that alleged defects were not warrantable items. Appellants appealed to tribu- nal. Hearing did not conclude within allotted time. In inter- im property was foreclosed and sold. T.W. applied to dismiss appeal on grounds that appel- lants were no longer owners of home and had no standing to pursue enforcement of warran- ty. Tribunal dismissed appeal holding that right to warranty relief ran with land and right to pursue enforcement of war- ranty vested in person who cur- rently owned property. Appeal dismissed. Tribunal did not err in fi nding that warranty ran with land. Act aimed to pro- tect consumers and consumer that Act sought to protect was not only original purchaser of new home who bought from vendor but also those who acquired subsequent owner- ship during term of warranty. Members of public sought to be protected were all owners who owned during warranty period. Benefi t sought to be conferred by Act was delivery of construction of home in conformity with warranties. When property under warran- ty was transferred, new owner acquired warranty rights un- der Act. Warranty was not at- CASELAW tached to owner but to prop- erty. Liddiard v. Tarion Warranty Corp. (Nov. 17, 2009, Ont. S.C.J. (Div. Ct.), Matlow, Low and Linhares de Sousa JJ., File No. DC-09-00013-00) Order No. 009/330/022 (15 pp.). Torts NEGLIGENCE But for accident, plaintiff would not be experiencing chronic pain Action by plaintiff for dam- ages for personal injuries ex- perienced as result of car ac- cident. Plaintiff claimed that following accident, he has had continuous, substantial pain in his right hip, right leg and low back. Plaintiff left his em- ployment as teacher. Action al- lowed. Defendants were liable for damages that arose out of plaintiff 's chronic pain. Inju- ries that plaintiff experienced in accident were cause of plain- tiff 's chronic pain. But for acci- dent, plaintiff would not have been in his current condition. Plaintiff was unable to return to work as result of physical in- juries that he sustained. Lyness v. Wang (Nov. 4, 2009, Ont. S.C.J., Hambly J., File No. C-1290/04) Order No. 009/327/084 (32 pp.). Wills And Estates WILLS Presumption of destruction animo revocandi did not apply to wills Application for direction of court regarding validity of num- ber of purported testamentary documents of deceased. Pri- mary and secondary will, dated February 1998 and codicil dat- ed August 1999 were known to exist. Codicil made reference to will dated May 1999. Neither original nor copy of 1999 will was discovered. Presumption of destruction animo revocan- di did not apply to 1998 wills and purported 1999 will. 1998 wills were not last in deceased's possession. Th ere was no tes- tamentary document revoking 1998 wills. Purported 1999 will did not exist. Codicil was intended to amend 1998 will. O'Donovan v. O'Donovan (Nov. 19, 2009, Ont. S.C.J., Gordon J., File No. ES-623-07) Order No. 009/327/082 (28 pp.). ONTARIO CRIMINAL CASES Charter Of Rights EQUALITY RIGHTS Inaction by Ontario government in not implementing s. 255(5) of Criminal Code violated s. 15 of Charter and not saved by s. 1 Application by accused, who pleaded guilty to two counts of impaired driving and two counts of driving while pro- hibited, for relief under Char- ter. Accused was alcoholic with extensive history of convic- tions for impaired driving and www.lawtimesnews.com driving while disqualifi ed. He claimed that continued refus- al of Ontario government to not implement or proclaim s. 255(5) of Criminal Code vio- lated s. 15(1) of Charter and violation could not be saved by s. 1 of Charter. Section 255(5) provided that if person was in need of curative treatment be- cause of alcohol or drug con- sumption, that person could be discharged and would be subject to probation order that would include condition that such person had to attend for curative treatment in relation to alcohol or drug consump- tion. Application allowed. In- action by Ontario government for 24 years to not implement or proclaim s. 255(5) was clear violation of s. 15 of Charter. Th is violation was not saved by s. 1 of Charter. Court read in s. 255(5) to this situation and it concluded that accused was off ender who should benefi t from curative conditional dis- charge provisions of s. 255(5). R. v. Pickup (Dec. 1, 2009, Ont. C.J., Brown J., File No. 09-3600) Order No. 009/348/062 (15 pp.). Disclosure GENERAL Application for disclosure of data and documents related to breathalyzer machine was dismissed Accused charged with impaired driving and "over 80." Accused applied for disclosure of data and documents related to breatha- PAGE 15 lyzer machine. Some disclosure had already taken place. Crown claimed items requested were clearly irrelevant, while others were third party records. Ap- plication dismissed. Intoxilyzer was highly reliable instrument. Court had not been shown how or where mistake that would not be caught by diagnostic checks and tests could realistically arise. Although it might have been possible to conceive of scientifi c doubt about reliability of in- strument, it was not possible to conceive of reasonable doubt in world of law. Crown had obliga- tion to inquire about and obtain potentially relevant information in hands of other Crown agen- cies if it was reasonably feasible to do so. Burden was on Crown to show clear irrelevance. Evi- dence was that alcohol standard solution that was in use for cali- bration check before accused's test had been changed very shortly before subject tests. Re- cords of maintenance work done by persons other than manu- facturer's authorized personnel may have involved third party records. Crown did not have "source code" software in its pos- session and therefore it was not available for disclosure. In light of disclosure already made, all of requested disclosure was clearly irrelevant to any probative issues before Court. R. v. Shrigley (Nov. 19, 2009, Ont. C.J., Stone J., File No. 2811 998 08 02642; 2811 999 08 02641) Order No. 010/006/013 (24 pp.). LT Starting from $62.50 per month More value for your money! 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