Law Times

PAGE 14 CaseLawLaw ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Broker owed agent commission pursuant to buyer agency agreement Plaintiff was real estate agent. Re/Max was broker named in buyer agency agreement. Re/ Max assigned right in commis- sion claimed to plaintiff. Plain- tiff sought commission plain- tiff alleged was owing pursuant to buyer agency agreement as result of completion of agree- ment of purchase and sale. Defendant denied liability. Defendant owed plaintiff com- mission. Assignment was abso- lute and was made in favour of person who was not stranger to action. Plaintiff was legally en- titled to entire commission if finding were made in plaintiff's favour. Assignment was not champertous. Circumstances did not exist to justify unilater- al decision to terminate buyer agency agreement. S. entered agreement as agent for defen- dant. All material facts under- lying plaintiff's claim appeared in statement of claim and reply. Wording of s. 4 of Limitations Act, 2002 (Ont.), was not so broad as to prohibit amend- ment of pleading to raise alter- native theory of liability based on same fact situation. Forjani v. Vali (Apr. 16, 2010, Ont. S.C.J., Grace J., File No. 07-CV-341132 SR) 187 A.C.W.S. (3d) 624 (9 pp.). Conflict Of Laws JURISDICTION Plaintiff did not meet onus of establishing that connection between Ontario and claim was real and substantial Action arose out of motor ve- hicle accident that occurred in Alberta. Plaintiff claimed plain- tiff was struck by defendants' vehicle while plaintiff was cross- ing street at crosswalk. Plaintiff resided in Ontario. Defendants resided in Alberta. Action was started in Ontario. Defendants brought motion to set aside service of statement of claim on defendants or to have ac- tion dismissed on ground On- tario had no jurisdiction to hear claim or was not convenient forum. Motion was allowed. Ontario should not assume ju- risdiction of action. Claim was dismissed. Evidence established connection between claim and Ontario in respect of residence and damages suffered but con- nection was not significant. Plaintiff did not meet onus of establishing connection be- tween Ontario and claim was real and substantial. It was not appropriate or Ontario to as- sume jurisdiction. Alberta was most convenient forum. Kahlon v. Cheecham (Apr. 20, 2010, Ont. S.C.J., Pattillo J., File No. CV-09-00376268) 187 A.C.W.S. (3d) 700 (15 pp.). Professions BARRISTERS AND SOLICITORS Trial judge's damages award for negligence upheld on appeal Appellant brought action for negligence and breach of fidu- ciary duty against former solic- itor in conduct of matrimonial action and advice former solic- itor gave at time of settlement. Respondent admitted negli- gence in failing to identify hus- band's cottage as matrimonial home subject to equalization and failing to advise appel- lant of proper range of spou- sal support. Appellant argued negligence permeated every as- pect of settlement. Trial judge awarded appellant damages regarding cottage and spousal support negligence. Appeal was dismissed. There was no error in trial judge's rejection of other grounds of negligence. There was no error in dam- ages award based on amount of monthly spousal support. There was no error in refusal to give appellant separate dam- ages award for claimed post- separation educational costs. Trial judge erred in restricting commencement date of spou- sal support to date specified. Spousal support damages were increased by $6,210 and pre- judgment interest was ordered on amount at 4%. Appeal was otherwise dismissed. Carr v. Parlee (Apr. 9, 2010, Ont. C.A., Gillese, Lang and Rouleau JJ.A., File No. C49788) 187 A.C.W.S. (3d) 861 (7 pp.). Wills And Estates WILLS Contentious will cases did not enjoy any exemption from summary judgment proceedings Motion by executor for par- tial summary judgment setting aside part of notice of objec- tion filed by testatrix's daughter and granting partial probate. Executor and daughter were testatrix's only children. Tes- tatrix disinherited daughter in 1976 as result of family busi- ness dispute but changed her June 14, 2010 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. mind somewhat later that year. Daughter chose to remain es- tranged from her family even though they reached out to her. Testatrix executed wills in 1984, 1986, and 1987 leaving noth- ing to daughter and leaving all of residue to executor. Testatrix amended 1987 will by way of four codicils, first of which did not involve daughter. Second codicil left specified jewellery to daughter and established trust for one of daughter's children. Third and fourth codicils varied amount to be placed in trust. Following testatrix's death in 2007, executor was issued cer- tificate of appointment as estate trustee. Daughter filed notice of objection alleging testatrix lacked of testamentary capacity, lacked knowledge of and had not approved contents of 1987 will and codicil, and had been subject to undue influence. Ex- ecutor sought summary judg- ment only in respect of 1987 will and first two codicils. Mo- tion granted. Partial summary judgment was available in this case. Contentious will cases did not enjoy any exemption from summary judgment proceed- ings. Validity of 1987 will and first two codicils could be deter- mined without regard to valid- ity of third and fourth codicils. Requirement that all testamen- tary documents be considered together only applied in con- text of interpretation after va- lidity of documents had been established. Daughter failed to provide affidavit evidence and refused to be examined so all evidence establishing con- flict within family was treated as uncontested and admitted. Events that occurred many years before and after 1987 will and codicils were executed were not relevant to deter- mination of whether undue influence existed when these documents were executed. In any event, impugned conduct before and after 1987 will and codicils were executed did not establish undue influence. Nei- ther daughter nor her husband had any personal or direct knowledge of what was go- ing on in testatrix' mind when she executed 1987 will and codicils. Executor denied any undue influence and had not been present when testatrix ex- ecuted 1987 will and codicils. Testatrix's solicitors saw no sign of undue influence exerted on testatrix. Daughter's claim of undue influence had no air of reality. Smith Estate v. Rotstein (Apr. 15, 2010, Ont. S.C.J., Brown J., File No. 01-4260/07) 187 A.C.W.S. (3d) 900 (107 pp.). www.lawtimesnews.com i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. ONTARIO CRIMINAL CASES Mental Illness DETENTION Board's determination that accused was significant threat to public safety was not based on speculation Accused was found not crimi- nally responsible on account of mental disorder on two charges of assault and three counts of threatening death or bodily harm. Accused appealed from board's initial disposition order- ing that accused be detained at minimum secure unit subject to various conditions. Accused had made great progress in interven- ing year following his detention and there was no issue with his compliance with medication for his delusional disorder since coming under board's jurisdic- tion. Appeal dismissed. While board did not engage in consid- eration of two elements it was required to address there was evidence that accused did not believe he had major mental ill- ness, had limited insight into his illness, had history of non-com- pliance with treatment while living in community, requested discontinuance or reduction of his medication and had difficul- ty accepting that he required life long treatment. Board's determi- nation that accused was signifi- cant threat to public safety was not based on mere speculative assumption that he would not take his medication if granted conditional discharge. Submis- sions of amicus curiae did not address second reason for board's refusal to grant discharge, in- cluding conditional discharge, namely, stressors in accused's life. Accused could not be arrested should his mental status dec- ompensate due to those stressors despite compliance with medi- cation as he would not be in breach of any term of his dispo- sition. Board's decision was not unreasonable in circumstances. R. v. Simpson (Apr. 28, 2010, Ont. C.A., Weiler, Simmons and Watt JJ.A., File No. C51333) 87 W.C.B. (2d) 711 (6 pp.). Provincial Offences CERTIFICATE OF OFFENCE Complete absence of "set fine" on certificate prevents accused from making informed decision on how to proceed Appeal of decision quashing four certificates of offence. Two accused had been charged with four Highway Traffic Act (Ont.) offences. "Set fine" box on face of each certificate was blank and "total payable" box was filled in with monetary amount. Both accused provided notice of in- tention to appear and challenge evidence. Trial was scheduled and agent appeared for both ac- cused several times. On date set for charges to be spoken to, nei- ther accused nor agent appeared. Justice of peace, after examining certificates of offence, indicated she would quash certificates as they were not complete and regular on their face. She denied prosecutor's motion to amend certificate. Municipal prosecu- tor argued each accused had at- torned to court's jurisdiction and she should have proceeded on ex-parte basis. All four appeals dismissed. Essence of s. 9.1 is whether accused fails to appear "at trial". Variety of steps may be taken at date set for "hearing". Fact that accused appeared by agent several times did not in it- self confer jurisdiction on court. By holding that s. 9.1 was trig- gered, justice of peace had no option but to examine each cer- tificate (without hearing) and no option but to enter conviction if certificates could be found to be complete and regular on their face. She had no option but to quash if she was not able to enter conviction. "Set fine" is required piece of information; complete absence of "set fine" prevents accused from making informed decision on how to proceed. Jus- tice did not err in holding that neither accused appeared at time and place appointed for hearing and were properly deemed not to dispute charges; but she also properly concluded that s. 54 of Act did not apply and correctly quashed each certificate for not being complete and regular on its face. R. v. Duquette (Mar. 30, 2010, Ont. C.J., Lalande J., File No. 80543629; 80543630; 8543631 & 80540467) Deci- sion at 87 W.C.B. (2d) 437 af- firmed. 87 W.C.B. (2d) 723 (7 pp.). Sentence PREVENTIVE DETENTION Trial judge did not misconstrue long-term offender provisions Accused declared dangerous of- fender after convictions for sex- ual assaults of children. Accused being diagnosed as pedophile, alcoholic with mild mental dis- ability. Experts for both parties determining accused at mod- erately high risk of reoffending with challenges to treatment

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