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Law Times • June 21, 2010 tuition fees did not cover as- sociation memberships or ex- aminations. Plaintiffs were two students who enrolled in pro- gram. Plaintiffs believed they would automatically obtain IA certifications after completing program. Plaintiffs learned they would have to pay additional fees and take further steps be- fore obtaining IA certifications. Defendant subsequently revised calendar to indicate program only helped to prepare stu- dents to pursue IA certifica- tions. Plaintiffs brought action against college for damages for negligent misrepresentation, breach of contract, and breach of Consumer Protection Act, 2002 (Ont.). Total of 119 stu- dents had enrolled in program at relevant times and most of them were international stu- dents. Motion granted. State- ment of claim disclosed causes of action. Defendant would have reasonably expected that international students would litigate claims in Ontario. Pos- sibility that Ontario judgment might not be recognized in another country was not deter- minative. Courts in other coun- tries might not even accept ju- risdiction themselves. Fact that some class members might not be able to prove claim or might opt out was not relevant to class definition. Common issues ex- cept those relating to damages were suited for resolution on class-wide basis and outweighed individual issues. All types of damages claimed would have to proceed as individual issues. Class proceeding was preferable procedure, particularly when class included large number of international students. Plain- tiffs would fairly and adequately represent class but another rep- resentative plaintiff was required to represent non-resident class members. Non-residents had unique interests. Notice provi- sions required further consider- ation but should lead to every potential class member receiv- ing actual notice of proceeding. Ramdath v. George Brown Col- lege of Applied Arts and Technol- ogy (Apr. 8, 2010, Ont. S.C.J., Strathy J., File No. CV-08- 363847 CP) 187 A.C.W.S. (3d) 929 (73 pp.). Conflict Of Laws JURISDICTION There would be no unfairness to defendant resident of British Columbia in Ontario assuming jurisdiction Motor vehicle accident occurred in British Columbia. Statement of claim was issued in Ontario pleading A. sustained personal injuries as result of accident. At time of accident A. was residence of British Columbia. Majority of A.'s treatment was received in Ontario. Plaintiffs were A.'s mother and father who made claims pursuant to Family Law Act (Ont.). Plaintiff father operated motor vehicle in which A. was passenger. Plain- tiffs were visiting British Co- lumbia but normally resided in Ontario. Defendant owner and driver of motor vehicle were residents of British Columbia. Third party denied coverage. Third party brought motion to set aside service and to stay ac- tion on ground Ontario was not convenient forum. Motion to set aside service was dismissed. Statement of claim was properly issued in Ontario and served on defendants outside Ontario pur- suant to rule 17.02(h) of Rules of Civil Procedure (Ont.). No order was required to authorize service. Claims for loss of care, guidance and companionship were dismissed. But other speci- fied claims were left for trial judge to determine. There was no independent right of action available to plaintiffs in Brit- ish Columbia. British Colum- bia court could make in trust awards to compensate parents for housework, nursing and domestic assistance. Motion to stay action was dismissed. On- tario court had jurisdiction to hear matter. There was real and substantial connection between Ontario and plaintiffs' claim for damages. There as some con- nection between Ontario and defendants. There would be no unfairness to defendant in Ontario assuming jurisdiction. Liability was admitted. Third party did not establish Ontario was forum non-conveniens. Dennis v. Farrell (Apr. 23, 2010, Ont. S.C.J., Festeryga J., File No. 07-32846) 187 A.C.W.S. (3d) 936 (12 pp.). Family Law ADOPTION Application to adopt adult child was allowed Application to adopt adult child. Child born in Philippines and became applicant's fos- ter child under Foster Parents Plan of Canada in 1994 at age of eleven years. Applicants fi- nanced child's university educa- tion in Philippines and invited her to Canada to study when she experienced difficulty find- ing suitable employment. Child arrived in Ontario in February 2007 as international student and would graduate in spring of 2010 in business administra- tive program. Child already had offer of full-time employment. Application allowed. Child met statutory requirement for residence in Ontario. Applica- tion bona fide. Relationship between applicants and child had endured for 16 years and provided underlying basis for proposed adoption indepen- dent of child's immigration sta- tus. Clear parental gap in child's life and applicants ideally suited to fill that gap. Child although an adult would benefit from parental guidance and support. Proposed adoption in child's best interests. A. (C.T.) (Re) (Apr. 15, 2010, Ont. S.C.J., Mackinnon J., File No. FA-10-013) 187 A.C.W.S. (3d) 1035 (5 pp.). Limitations BANKRUPTCY Trustee knew circumstances giving rise to alleged fraudulent conveyances prior to s. 38 order being obtained Motion by defendants V.S. and CASELAW C. Ltd. for order setting aside Certificates of Pending Litiga- tion ("CPL") and to set aside s. 38 of Bankruptcy and Insolven- cy Act (Can.), order obtained by plaintiff on April 6, 2006, which permitted it to commence ac- tion and for order dismissing action. Plaintiff commence first fraudulent conveyance action to reverse conveyance in August 2002. Defendant D.S. filed as- signment in bankruptcy in Jan- uary 2004, which had effect of staying first fraudulent convey- ance action against D.S.. D.S. discharged from bankruptcy in August 2005. Order dismissing first fraudulent conveyance ac- tion granted on April 5, 2006. Second fraudulent conveyance action issued more than four years after appointment of trustee and more than two years after s. 38 order granted by reg- istrar which assigned trustee's cause of action to plaintiff. Mo- tion granted. Second fraudulent conveyance action dismissed and CPL discharged. Plaintiff's right to raise issues in second fraudulent conveyance action could only come from s. 38 order through which plaintiff stepped into shoes of trustee to prosecute claim. Action by trustee in bankruptcy to attack alleged fraudulent conveyance must be brought within two years from day claim discov- ered by trustee. Trustee knew circumstances giving rise to al- leged fraudulent conveyances at some point after January 2004, and clearly prior to s. 38 order being obtained. More than two years had elapsed before second fraudulent conveyance action issued in June 2008. Indcondo Building Corp. v. Sloan (Apr. 28, 2010, Ont. S.C.J., Morawetz J., File No. CV-08- 7586-00CL) 187 A.C.W.S. (3d) 1158 (6 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Negligent inspection action was dismissed Action by purchaser against municipality for damages for negligent inspection. Builder was amateur contractor who built home for himself with professional assistance. Munici- pal inspector required builder to remove water from ground before pouring concrete foot- ings. Builder complied with all of municipal inspector's direc- tions and home was completed without incident. Builder lived in home for about five years and did not encounter any problems with water before selling it to vendor. Vendor in- stalled in-ground swimming pool without incident. Vendor claimed he had not experienced any water problems except for flooding after ice storm. Home inspector noted potential water problem but vendor and real es- tate agents convinced purchaser it was not serious. Seriousness of water problem came to light after home experienced another flooding incident. Engineer in- dicated problem was result of home being built below water table. Purchaser commenced www.lawtimesnews.com action against vendor, real es- tate agents, builder, home in- spector, and municipality for damages for various causes of action. Purchaser entered into settlement with all parties ex- cept for municipality and build- er. Action dismissed. Neither municipality nor builder were negligent. Evidence indicated home was likely constructed slightly below water table but this in itself was not improper. Footings were slightly smaller than required by Building Code Act, 1992 (Ont.), in situations like this but deficiency had not led to problems. Main founda- tion walls had been properly reinforced though one garage wall had not. Damage to ga- rage wall was not as extensive as purchaser claimed and it was inconsequential. Municipality had completed final inspection contrary to purchaser's sugges- tion that it had not. Purchaser provided no evidence regarding standard of care of municipal inspector. Certain complaints related to policy considerations for which no action could be brought. Evidence confirmed builder had no problems with water infiltration prior to sell- ing home to vendor. Drainage system installed by builder had properly controlled potential water infiltration. Problem likely arose when vendor in- stalled swimming pool, which would have adversely affected drainage system. Problem was mentioned by home inspector but purchaser chose to ignore his advice. Problem could have been corrected at early stage by restoring proper drainage. Theriault v. Lanthier (Mar. 30, 2010, Ont. S.C.J., Charbon- neau J., File No. CV-2002-275) 187 A.C.W.S. (3d) 1208 (37 pp.). BY-LAWS There was public interest in outcome of action and therefore Crown as represented by Attorney General was proper party Attorney General and persons affected by By-law purporting to establish public road found to be proper parties in munici- pality action. By-Law 11 was enacted by township in 1854 purporting to establish public road on lakeshore of Georgian Bay over three lots. By-Law was registered on title only after 2004 by successor of township, plaintiff municipality. Plaintiff passed By-Law 80-2007 accept- ing location of public road and only in respect of lands occupied by 10 cottage properties owned by defendants. Plaintiff brought action against defendants seek- ing declaratory judgment that disputed portion of road was public highway and defendants were trespassing on road by maintaining obstructions there- on. Submissions were requested from parties regarding issue of whether Attorney General as representative of Queen in right of Province of Ontario was necessary defendant. Question was also raised as to whether all persons with interest in lands directly affected by By-Law 11 to north and south of disputed road were necessary and proper PAGE 17 parties. Plaintiff ordered to file amended statement of claim naming Crown and persons with interest in lots traversed by disputed road as defendants. Plaintiff argued that s. 35 of Municipal Act, 2001 (Ont.), allowed municipality to deal with all rights of use and restric- tions of common law right of passage in respect of purported roadway. Section 35 however did not abrogate overarching interests of public as to right of passage. Neither did provision take away or reduce jurisdiction of Crown in right of Province of Ontario over roads or in respect of lands sought to be declared road within province. There was public interest in outcome of action and therefore Crown as represented by Attorney Gen- eral was proper party. As well adjudication of issues in action was likely to bear upon proper- ty rights of persons with inter- est in lands affected by By-Law 11. Despite fact that plaintiff had chosen to register By-Law 11 only as against lots within disputed road, validity and af- fect of By-Law were to be de- termined in action. All persons with interest in lands covered by By-Law had direct and immedi- ate interest in outcome of action and were proper parties. Meaford (Municipality) v. Grist (Apr. 29, 2010, Ont. S.C.J., Daley J., File No. 07-249) 187 A.C.W.S. (3d) 967 (19 pp.). Real Property CONDOMINIUMS Plaintiff unit owner responsible for damages arising from flood Action for damages against condominium corporation for breach of statutory duties to maintain and repair heating system. Broken water pipe in living room of plaintiff's unit caused flood. Plumbers' invoice for repairs was charged back to unit as common expense. $5,000 deductible charged to corporation for removal of flood water also charged back to unit as common expense for that unit. Plaintiff initially refused to pay plumbing and clean up bills but later paid amount to corpo- ration. Action dismissed. Pipe served unit only and clearly fit within definition of what unit comprised. Two valves control- ling flow of water through pipe were fixtures connected to that pipe and also constituted part of unit. Thermostat and ther- mometer also fell within defini- tion of what constituted unit. Declaration altered statutory obligation to maintain or to re- pair damage by providing that each owner shall repair unit af- ter damage. Plaintiff responsible by virtue of s. 105(3) of Con- dominium Act, 1998 (Ont.), as regard damages to her own unit and to other units and common elements for lesser of aggregate cost of rectifying damage and insurance deductible. Plaintiff guilty of omission by failing to winterize box window air con- ditioner, by not doing regular preventative maintenance of fixtures that regulated flow of hot water through pipe, and by failing to properly instruct ten-