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Law Times • December 6, 2010 fraud and dishonesty alleged against M.M. and S.H.. Plain- tiffs knew when action com- menced that these defendants were registered as officers and/or directors of one of the corporate defendants and nothing more. Plaintiffs had no evidence when action commenced connecting these defendants to creation and distribution of marketing documents. Very limited role of these defendants became appar- ent to plaintiffs during exami- nation for discovery in March and April 2007 and plaintiffs concluded there was no basis for continuing action against them. Plaintiffs informed of defen- dants' instructions to bring mo- tion for summary judgment in June 2009. Fees as of June 2009 incurred to defend these two de- fendants totalled $8,878. Costs of $18,000 awarded to defen- dants M.M. and S.H.. Plaintiffs justified in decision to sue these defendants based on fact they were officers and/or directors of one of corporate defendants but had no reason to pursue claims of fraud and deceit against them. Plaintiffs should have reviewed claims immediately after exami- nations for discovery completed when these defendants had only incurred fees of $4,805. De- fendants entitled to substan- tial indemnity costs because of unfounded allegations of fraud and deceit. Small adjustment downwards necessary to reflect straightforward nature of sum- mary judgment motion. Lewis v. Cantertrot Investments Ltd. (Oct. 18, 2010, Ont. S.C.J., Horkins J., File No. 04-CV- 277412CP) 193 A.C.W.S. (3d) 732 (13 pp.). SUMMARY JUDGMENT Lack of notice was complete bar to plaintiff 's action Excerpts of plaintiff's appear- ance were included on televi- sion show. Panel was not kind to plaintiff. Plaintiff brought action for defamation. Plaintiff did not deliver notice of claim as required by Libel and Slander Act (Ont.). Defendant brought motion for summary judgment. Motion was allowed. Lack of notice prescribed in s. 5(1) was complete bar to plaintiff's ac- tion. Statement of claim did not constitute notice under s. 5(1). There was no genuine issue re- quiring trial in respect of any claim for defamation. Plaintiff did not plead breach of contract in statement of claim and plain- tiff signed consent. Turmel v. CBC (Dragon's Den) (Sep. 27, 2010, Ont. S.C.J., Lofchik J., File No. CV-10-48) 193 A.C.W.S. (3d) 1026 (10 pp.). TRIAL No error in trial judge's refusal to decide issue of damages after mistrial declared Jury was asked to assess dam- ages suffered by appellant as result of motor vehicle accident for which respondents admit- ted liability. Trial judge granted respondents' motion for mis- trial, finding cumulative effect of comments in closing address of appellants' trial counsel im- paired trial fairness to extent that could not be corrected by any charge. Trial judge refused to decide issue of damages her- self in absence of respondents' consent. Appeal was dismissed. It was open to trial judge to find comments were inflammatory and diverted jury's attention from deciding issues in case on basis of evidence and comments impaired fairness of trial. Since jury notice was served by re- spondents, trial judge's decision to decline to decide damages herself was appropriate recogni- tion that respondents ought not to be deprived of right to have issue decided by jury simply be- cause of transgressions of appel- lants' trial counsel. Groen v. Harris (Sep. 29, 2010, Ont. C.A., Goudge, Cronk and Armstrong JJ.A., File No. C51223) 193 A.C.W.S. (3d) 787 (5 pp.). Conflict Of Laws JURISDICTION Wife did not establish real and substantial connection between claims and Ontario Parties were married 32 years. Parties lived in Tehran at time of separation. Parties held per- manent residency in Canada. Wife sought to vest proper- ties and moneys in applicant's name in satisfaction of claims for equalization payment, child support and spousal support. Husband argued proper forum was Iran where issues arising from marriage breakdown were determined and action regard- ing ownership of family home was ongoing. Wife was un- happy with result from court in Iran and pursued Ontario claim. Wife amended claim to include child support for child, now aged 30. Child sold unen- cumbered condominium worth $600,000 that was purchased by father and placed in child's name. Claims could not suc- ceed. Court lacked jurisdiction to make order for equalization or spousal support. Last com- mon habitual residence of par- ties was Iran. Claim for child support was dismissed. No vest- ing order was made. Interests of encumbrances in target proper- ties were impediment if not bar- rier to transfer of real property. There was no order for ongoing spousal support. Order for tem- porary spousal support was ter- minated. Wife did not establish real and substantial connection between claims and Ontario. Rezagholi v. Ezami (Oct. 6, 2010, Ont. S.C.J., McGee J., File No. FC-07-26891-00) 193 A.C.W.S. (3d) 915 (21 pp.). Consumer Protection GENERAL Whether credit reporting agency fulfilled duties to plaintiff was issue requiring trial Motions for summary judgment by plaintiff and defendant. Plaintiff builder suing registered credit reporting agency for neg- ligence in reporting false credit information about him. Plaintiff complained to defendant about inclusion of debt allegedly owed to company that insurers home- owners for defects in newly built CASELAW houses and defendant refused to remove it. Defendant checked with company when plaintiff disputed accuracy of informa- tion and company affirmed ac- curacy of information. Motions dismissed. Consumer Reporting Act (Ont.), does not require that judgment be obtained be- fore debt reported. Defendant owes duty of care to consumers about whom it reports. Wheth- er defendant fulfilled its statu- tory and common law duties to plaintiff simply by calling credi- tor an issue that required trial. More may be required of credit reporting agency than telephone call from creditor depending on type of debt and nature of dis- pute. Present debt was not sim- ple matter such as advance of funds, an invoice or judgment. Spencer v. Equifax Canada Inc. (Oct. 18, 2010, Ont. S.C.J., Ramsay J., File No. 09-11133) 193 A.C.W.S. (3d) 789 (2 pp.). Contracts IMPLIED TERMS Implied term rejected for being in conflict with express terms of written contract Plaintiff companies were or- ange vendors based in Spain. Each of plaintiffs entered into written contracts with defen- dant company for sale and de- livery of oranges for 2005/2006 season. Contracts provided for payment by defendant of fixed price for goods delivered. De- fendant failed to pay in full for produce based on fixed price. Plaintiffs brought action against defendant to recover outstand- ing balance. Defendant argued that contracts did not reflect commercial understanding of parties that price ultimately payable by defendant was to be based on own re-sale prices in North American market. De- fendant also alleged that plain- tiffs breached contracts by fail- ing to provide correct size mix of fruit and by failing to deliver goods timely. Actions allowed. Plaintiffs were entitled to pay- ment for goods sold and deliv- ered to defendant at firm prices stipulated in written contracts. Judge rejected defendant's sub- missions that contracts con- tained implied terms that pur- chase price would be set by defendant at end of 2005/2006 season based on re-sale prices fetched in market. Purported implied terms conflicted with express price term stipulated in contracts. Judge accepted plaintiffs' evidence that par- ties fully understood that de- fendant would be required to pay fixed prices for goods sold. Further there was no evidence that defendant complained to plaintiffs about late deliveries or in respect of size and quality of produce delivered by plain- tiffs. Judgment entered against plaintiffs for amounts due on contracts based on firm prices stipulated therein. Sociedad Cooperativa Agricola de Pego C. Valenciana v. Toronto International Farms Corp. (Sep. 28, 2010, Ont. S.C.J., Brown J., File No. 08-CV-346758PD2) 193 A.C.W.S. (3d) 795 (21 pp.). www.lawtimesnews.com Environmental Law WASTE Application judge correctly found no conflict between provisions of Environmental Protection Act (Ont.) and its regulations Appeal from judgment wherein application judge found no conflict between provisions of Environmental Protection Act (Ont.), and its regulations, par- ticularly exemption that demoli- tion materials must be delivered to permanent premises for use as construction materials to avoid being designated as waste and provisions of respondent's by-law requiring that property owner keep property clean and free of refuse and remove refuse within reasonable period after notifi- cation. Appeal dismissed. Ap- plication judge correctly found no conflict. Exemption does not extend to indefinite storage prior to use. Property owner's intention to ultimately use ma- terial for construction purposes not enough to make exemption applicable. Property owner com- plies with requirement under bylaw by using demolition mate- rials for construction within rea- sonable time following their de- livery to property. If demolition materials re-used within reason- able time under regulation they are not waste and therefore not refuse within definition of bylaw and thus do not require removal. One can bring oneself within exemption and be in compliance with bylaw. Wangler v. Fort Erie (Town) (Oct. 8, 2010, Ont. C.A., Goudge, Lang and Karakatsanis JJ.A., File No. C51920) 193 A.C.W.S. (3d) 817 (3 pp.). Evidence OPINION EVIDENCE Request for leave to call doctor to give viva voce evidence and to file medical report premature Plaintiff brought action for damages for injuries suffered in collision with car driven by de- fendant. Defendant admitted liability. Jury was to assess dam- ages. Plaintiff retained orthopae- dic surgeon to prepared expert report based on examination of plaintiff. Plaintiff sought leave both to call surgeon to give viva voce evidence and to mark ex- pert report as exhibit with copies of report being provided to jury so jury could follow doctor's evidence. Leave denied. Court possessed discretion to permit expert's report to be filed where expert was also to give viva voce evidence at trial. Granting of leave was premature in light of specific circumstances of case. Because of way evidence had so far been led by plaintiff there was likelihood of confusion amongst jury by reason of refer- ence to large number of reports that had not gone into evidence. Judge preferred to hear first viva voce evidence of doctor. Some of factual history outlined in doc- tor's report was not necessarily evidence that judge had heard admitted so far. As well evi- dence did not appear to be un- duly complicated such that jury would encounter little difficulty PAGE 17 in following doctor's evidence without having copies of report. Clark v. Zigrossi (Sep. 20, 2010, Ont. S.C.J., Brown J., File No. 05-CV-293571 PD3) 193 A.C.W.S. (3d) 823 (9 pp.). Family Law CHILD WELFARE Children's return to mother's care would not be in their best interests Motion for order for Crown wardship of three children with- out access to allow for adoption of children. Family then com- prised of parents and two chil- dren fled to Alberta in June 2007 to escape society scrutiny. Family fled back to Ontario when child protection agency in Alberta be- came involved and children ap- prehended in July 2007. Mother and father had not parented two eldest children since that time. Youngest child born in August 2008, and born dependant on opiates. Youngest child soon ap- prehended. Mother and father separated. Youngest child did not seem to have same levels of delays as siblings. Motion grant- ed. Children's return to mother's care would not be in best inter- ests of children. Mother's addic- tion posed greatest risk of harm to children. Children had been out of her care for over two years and her drug abuse had not been addressed by her. Children's re- turn to father's care would not be in best interests of children. Father conceded he was not presently in position to care for children given his lifestyle, con- tinuing drug addictions, violent tendencies and periodic incar- ceration. Community placement options not in best interests of children. Maternal grandparents did not appear to comprehend that children had special needs. Father's sister K. and her part- ner had no idea about needs of children and partner had never even met children. Proposal that father would move in with sister at some point troubling given concerns regarding father's defi- cits. Father's sister S. had done impressive job in caring for chil- dren from September 2009 to January 2009. Placement broke down because S. overwhelmed by conduct of mother and father who moved uninvited into S.'s home and not by rigours of car- ing for children. Any placement with S. would inevitably break down again. Any interference by either parent would overwhelm S.'s ability to successfully parent. No way to control parents to prevent such conduct. Children's Aid Society for the Districts of Nipissing and Parry Sound v. P. (N.) (Oct. 19, 2010, Ont. C.J., Rodgers J., File No. C42-07) 193 A.C.W.S. (3d) 831 (8 pp.). SUPPORT Father's failure to comply with financial disclosure orders justified imputing income in fixing child and spousal support Parties were married in 1996 and separated in 2004. Parties had one child. Father engaged in hardwood flooring business. Father made voluntary child support payments from 2004