Law Times

Law Times • December 8, 2008 of fraud. Evidence was not evi- dence of dissipation of property. Popack v. Lipszyc (Sep. 2, 2008, Ont. S.C.J., Pollak J., File No. 07-CV-339295-0000) Order No. 008/249/010 (11 pp.). Assessment LOCAL IMPROVEMENT No error in interpretation of deadline in s. 331(9) of Municipal Act, 2001 (Ont.) as directory, rather than mandatory Appellant appealed decision dis- missing its application to quash new construction notice issued by respondent town, recalculated property tax bills, and tax bill for an industrial property. Appellant was assessed owner of parcel of land upon which it constructed new industrial building. Prop- erty initially assessed as vacant industrial land by Municipal Property Assessment Corpora- tion ("MPAC"). MPAC issued supplementary assessment re- flecting current value of complet- ed building. Pursuant to s. 331 of Municipal Act, 2001 (Ont.), MPAC created list of comparable properties it sent to town within s. 331 time-limit. Section 331 of Act directs municipalities to determine municipal and school taxes for eligible properties which have undergone specified change such as new construction to en- sure eligible property taxed at same level as comparable proper- ties. Town did not comply with s. 331 obligation to mail to ap- pellant owner list of comparables and resulting tax calculations. Despite acknowledging deliber- ate delay town issued supplemen- tary tax bills for additional taxes based on s. 331 reconsideration. Judge below held that deadline in s. 331(9) of Act directory, rather than mandatory, and failure of Town to meet deadline did not impair its legal authority to bill taxes relating to property as it did. Appellant property owner's appeal dismissed. Section 331 of Act must be viewed in light of s. 331(1) which sets out purpose as ensuring eligible properties taxed at same level as comparable prop- erties. Mandatory interpretation of "shall" would frustrate inten- tion of s. 331, grant tax holiday in perpetuity for appellant prop- erty owner for those taxes result- ing from erection of building, and pass burden of tax holiday to owners of comparable properties. Directory interpretation, as ap- plied by judge below, would en- sure that comparable properties taxed at same level, would pre- serve principle that taxpayer must be informed of amount and basis of any taxation imposed, would cause little prejudicial effect to appellant owner and would re- serve right of appellant owner to complain about appropriateness of comparables. Neamsby Investments Inc. v. Markham (Town) (Sep. 8, 2008, Ont. S.C.J. (Div. Ct.), Carn- wath, Perkins and Low JJ., File No. 68-08) Appeal from 161 A.C.W.S. (3d) 839; 62 R.P.R. (4th) 287; 40 M.P.L.R. (4th) 247 dismissed. Order No. 008/254/032 (10 pp.). Civil Procedure COSTS Apportionment of costs determined by operative language in insurance policy Trial judge correctly apportioned costs of defending lawsuit be- tween insurer and insured when some, but not all, of claims made in lawsuit were covered by ap- plicable insurance policy. Ap- portionment of costs determined by operative language in policy. Where there was unqualified obligation to pay for defence of claims covered by policy, as in this case, insurer was required to pay all reasonable costs associated with defence of those claims even if those costs furthered defence of uncovered claims. Insurer was not obliged to pay costs related solely to defence of uncovered claims. Hanis v. Teevan (Oct. 8, 2008, Ont. C.A., Doherty, Sharpe and Gillese JJ.A., File No. C44690) Appeal from 149 A.C.W.S. (3d) 974; 53 C.C.E.L. (3d) 105; 39 C.C.L.I. (4th) 92 dismissed. Or- der No. 008/288/062 (15 pp.). Conflict Of Laws FOREIGN LAW Court inferred that minor child entitled to support under Ohio state law Ontario Family Responsibility Office received a request from Family Court in Columbus, Ohio on behalf of mother for or- der for child support and medi- cal coverage for child. Mother sought retroactive support to April 1999. Father lived in Thunder Bay, Ontario. Pursuant to Interjurisdictional Support Orders Act, 2002 (Ont.), mat- ter was transmitted to Ontario. Ontario court had no formal proof of Ohio law. Court drew reasonable inference minor child would be entitled to support from father under Ohio state law. Alternatively court could consider entitlement under On- tario law under the Act. To avoid delay, court proceeded under Ontario law. Amount of support determined by Ontario law. Evi- dence indicated father had made unofficial support payments over the years. Support payable made effective from February 2006. Court agreed father would suf- fer undue hardship if required to pay supporting in accordance with Child Support Guidelines. Father had second family to support. Also had understated monthly expenses and would be in monthly deficit if required to pay under Guidelines. Court reduced table amount by more than 40% and ordered father to make monthly payments of $100 in child support. Hayes v. Burridge (Oct. 23, 2006, Ont. C.J., DiGiuseppe J., File No. FO-05-000515-01) Order No. 008/280/143 (6 pp.). Corporations OPPRESSION Applicant creditor was proper complainant for purpose of oppression relief Applicant sought oppression remedy against respondent. Al- leged that respondent took en- tire proceeds of a sale which left applicant without ability to enforce monetary judgment. Respondent asserting that ap- plicant not a creditor for pur- poses of oppression remedy. Respondent also asserting that moneys paid by corporation to it were debts. Application granted. Applicant should have priority of its judgment before CASELAW any amounts subsequently said by respondents to be debts. Ap- plicant became creditor at suc- cessful 2004 summary judgment motion. Applicant a creditor at time oppression remedy sought. Applicant is a proper complain- ant for purpose of oppression relief. From evidence adduced during previous motions, ap- plicant entitled to expect all of respondent's assets would not be disappointed prior to judgment determination amount. Respon- dent failed to prove that debts were enforceable obligations against respondent's corporation as being due and owing at time of previous receivership motion. 1413910 Ontario Inc. v. McLen- nan (July 4, 2008, Ont. S.C.J. (Comm. List), Campbell J., File No. 08-CL-7414) Order No. 008/198/222 (9 pp.). Family Law CHILD WELFARE Child made ward of Crown without access Motion brought by applicant society for summary judgment to make child ward of Crown under s. 57(1) para. 3 of Child and Family Services Act (Ont.). Child was in care of mother, who had history of alcohol and substance abuse. Father played no role in child's life and could not be located. Child showed symptoms of developmental de- lay. Child's situation referred to applicant society, which initiat- ed child protection case. Mother was notified of proceedings but chose not to attend. Motion al- lowed. There was no genuine is- sue for trial concerning whether child needed protection. Mother failed to adequately care for child and exhibited pattern of neglect in caring for him. There were no less intrusive interventions that can be made in circum- stances, and that returning child to mother was not in his best interests. Child ordered to be made ward of Crown and placed in care of applicant society and no access to child by either of his parents was allowed. Children's Aid Society of Nor- thumberland v. K. (J.F.) (Oct. 1, 2008, Ont. S.C.J., Lauwers J., File No. 213/07) Order No. 008/280/286 (11 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Action stayed pending resolution of complaint to Commission Plaintiff alleged that she had been sexually harassed by fellow em- ployee, R., and that sexual harass- ment constituted constructive dis- missal from employment. Plaintiff filed complaint with OHRC in 2006 alleging sexual harassment against employer and R. and claimed damages for sexual harass- ment. Plaintiff commenced action almost two years later alleging that defendant employer was vicari- ously liable for sexual harassment of plaintiff by its employee, R.. Defendant requested order stay- ing action on ground that another proceeding was pending in Ontar- io between same parties in respect of same subject matter. Action stayed pending resolution of com- plaint. In exercising its discretion to stay action court was balanc- ing litigation rights of parties and www.lawtimesnews.com taking into consideration notion of prejudice to both parties. In light of fact that two proceedings would proceed in tandem and fact that plaintiff waited almost two years before commencing action as well as fact that plaintiff would not be losing any rights by action being stayed rather than dismissed court exercised discretion to grant request for stay. Bent v. Olympia Tile Interna- tional Inc. (Oct. 10, 2008, Ont. S.C.J., Pollak J., File No. 08-CV-349637SR) Order No. 008/288/060 (5 pp.). ONTARIO CRIMINAL CASES Charter Of Rights TRIAL WITHIN REASONABLE TIME 23-month delay violated accused's rights under s. 11(b) Application by the accused for a stay of proceedings because she was not tried within a reason- able period of time. Accused was alleged to have committed income tax evasion between December 31, 2000 and May 31, 2003. She was charged on December 21, 2006. Trial was scheduled to commence on No- vember 24, 2008. Delay was 23 months. Accused did not waive any of her rights and was anx- ious to proceed. She did not contribute to the delay. Crown did not provide timely and meaningful disclosure. Applica- tion allowed. Neutral delay was four months. Delay attributable to the Crown was five months. PAGE 15 Institutional delay was 13 and a half months. Total of such de- lay was 18 and a half months. Based on this delay and the evi- dence of real prejudice on top of presumed prejudice, the ac- cused's rights under s. 11(b) of the Canadian Charter of Rights and Freedoms were violated. R. v. Frenkel (Aug. 20, 2008, Ont. C.J., Hryn J.) Order No. 008/301/009 (14 pp.). Sentence PREVENTIVE DETENTION Accused sentenced to 22 months' imprisonment for breach of long-term offender supervision order Sentencing hearing of the ac- cused after he pleaded guilty to breaching a long-term offender supervision order. Accused was not to consume drugs other Case Image filler 12/20/06 11:23 AM Page 1 than prescribed medication or over the counter drugs. He was charged after he tested positive for marijuana on a second oc- casion. He committed a similar offence previously and was sen- tenced to one year in prison, less nine months credit for six and a half months served. Accused was 50 years old and had a lengthy criminal record. Long-term of- fender order was imposed in 2004 after he was convicted of sexual assault causing bodily harm. Accused was sentenced to 22 months' imprisonment. He was given 18 months' credit for the nine months served and had to serve another four months. Sentence was based on specific and general deterrence, denun- ciation and rehabilitation. R. v. Barnhardt (Aug. 8, 2008, Ont. C.J., Hryn J.) Order No. 008/301/002 (27 pp.). LT Obtain Copies of Judgments Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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• Cover
• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation