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Law TiMes • March 9, 2009 order restraining dissemination of information in records but refused to order police service to expunge records. Police service appealed and individual cross- appealed. Proposed intervener had substantial experience in promoting and defending civil liberties and examining boundar- ies of acceptable police conduct. Motion dismissed. Proposed intervener was found to have requisite expertise but proposed intervener was seeking to raise issues that had not been raised before. Permitting proposed intervention would have had effect of changing focus, scope, and nature of proceedings and would have required creation of significantly different record. Permitting proposed interven- tion at this late stage would also cause injustice to police service. Tadros v. Peel Regional Police Service (Nov. 19, 2008, Ont. C.A., O'Connor A.C.J.O., File No. M36907; C47919) Order No. 008/325/012 (4 pp.). Assessment ASSESSOR Assessor did not have authority to make supplementary classification change and assessment effective in earlier year Applicants owned property that was used as commercial parking lot. In 2006 applicants began construction of office building. MPAC became aware of change of use in 2007. Property was already assessed as commercial property for 2007 based on use in 2006. MPAC issued supplemen- tary classification change effective 2007 but argued it did not have authority to make supplemen- tary assessment from reclassifica- tion effective 2006 as requested by applicants. Application was dismissed. Section 34(2) of Assessment Act (Ont.), did not confer authority on assessor to issue notice of supplementary tax classification change and supple- mentary assessment in 2007 that was effective in 2006. Ontrea Inc. v. Municipal Property Assessment Corp. (Nov. 12, 2008, Ont. S.C.J., Conway J., File No. 07-CV-345848PD1) Order No. 008/323/025 (10 pp.). Civil Procedure CLASS ACTIONS Settlement of action alleging design deficiencies in cars and trucks was approved Action concerned alleged design deficiencies in cars and trucks designed and manufactured by defendants. Plaintiffs brought motion for approval of settlement of action and for certification as class proceeding. Plaintiffs sought approval for fees. Settlement was approved. Settlement fell within required zone of reasonableness. Success at certification stage or at common issues trial would be assured. Notice to class members and manner of dissemination were satisfactory. Requirements for certification were met. There was uncertainty on ques- tion of total recovery and pay- ment of $2,520,000 in fees was not approved. $1.5 million of amount to be held in escrow could be paid to class coun- sel. Balance was to continue to be held in escrow. Provisions of settlement agreement relating to fees of class counsel were other- wise approved. Stewart v. General Motors of Canada Ltd. (Nov. 4, 2008, Ont. S.C.J., Cullity J., File No. 06-CV-310082 CP) Order No. 008/318/041 (12 pp.). DISCOVERY Defendants failed to provide information in timely manner Plaintiff claimed defendant did not satisfy undertakings and interfered with court-ordered inspection of books. Plaintiff claimed defen- dant withheld documents from court-ordered inspection. Plaintiff sought order striking defence and dismissing counterclaim. Plaintiff sought contempt order against defendant. Defendants did not deliberately ignore or breach orders so as to disentitle defen- dants from continuing to litigate or to be found in contempt. Defendants did not discharge obligation to provide informa- tion in timely manner for certain undertakings. Some undertakings were satisfied through plaintiff's efforts and plaintiff did not suf- fer ongoing prejudice. Nine of undertakings were satisfied prior to motion. Defendants were to deliver documents to plaintiff. Sauve v. Northern Pipe Photography Co. (Nov. 17, 2008, Ont. S.C.J., Gauthier J., File No. 8577/04) Order No. 008/324/144 (12 pp.). SETTLEMENT Defendants failed to perform obligations under settlement agreement Plaintiffs argued defendants wrongfully refused to discharge mortgage on date required by set- tlement agreement. Defendants argued plaintiffs were not ready to perform obligations under agreement on date and agree- ment became null and void. Plaintiff sought order enforcing settlement agreement against defendants. Motion was allowed. Defendants failed to perform obligations under agreement and were in breach of agree- ment. Language of amendment of agreement reserved distinction between obligation of plaintiff to refinance mortgage and obliga- tion of defendant to lift security interest in favour of replacement financing for RBC. Genomic Precision Fabricators Ltd. v. Rachiele (Nov. 7, 2008, Ont. S.C.J., Brown J., File No. 06-CV-318031 PD1) Order No. 008/318/022 (6 pp.). Contracts LIQUIDATED DAMAGES Court could determine damages without cross-examination Plaintiff brought motion for summary judgment. Plaintiff sought financing to purchase a home through defendant. Defendant agreed to lend plaintiff $270,000.00 by way of mortgage. Agreement was for two year term. Defendant subsequently advised plaintiff would not be able to pro- vide financing by closing date and requested extension. Extension could not occur and plaintiff had to arrange alternate financing. Plaintiff arranged alternate financ- ing. Plaintiff then arranged for different financing after one year. Plaintiff claimed incurred costs as a result. Defendant admitted liabil- ity. Only issue was regarding dam- CASELAW ages. Defendant argued damages needed to be subject of trial so that cross-examination could occur. Court held trial not necessary because liability admitted. Court in position to make determination of facts regarding damages with- out cross-examination. Plaintiff had judgment against defendant for $18,588.37. Plaintiff entitled to damages for two-year term of contract with defendant. Proper calculation to compare cost of two types of financing is to take total cost over two years for alternative financing and deduct proposed cost of financing with defendant over two year term. Alenezi v. UM Financial Inc. (Nov. 20, 2008, Ont. S.C.J., Arrell J., File No. 06-2667SR) Order No. 008/329/112 (9 pp.). Damages PERSONAL INJURIES Plaintiff awarded general damages of $110,000 for bruising and lacerations Exercise machine toppled over onto plaintiff in defendant fit- ness club. Plaintiff claimed damages for personal injuries. Plaintiff had extensive bruising to left arm, curved gash encircl- ing left ankle and laceration on right calf in front. Defendant was noted in default. Defendant was denied adjournment. Plaintiff 's general damages were assessed at $110,000. There was dim prognosis for appreciable change. Family Law Act (Ont.), claims were allowed at $17,500; $12,500 and $5,000. Past house- keeping was allowed at $11,250. One time care costs were allowed at $2,832. Present value of future care costs was $30,031. Future housekeeping to age 75 years was $4,190. Plaintiff was entitled to judgment of $225,684. Skocir v. Premier Fitness Clubs (Yorkdale) Inc. (Nov. 7, 2008, Ont. S.C.J., Wilson J., File No. 07-CV-338913 PD1) Order No. 008/318/032 (7 pp.). Evidence OPINION EVIDENCE Professor of transportation technologies could be called as expert witness Application by plaintiff for leave to call expert evidence at trial of action arising from purchase of allegedly written-off vehicle at auction. Proposed evidence in relation to unibody vehicle con- struction, adequacy of repairs, repairs required, and safety of vehicle. Admission of expert evi- dence depends on application of four established criteria. Potential witness a professor of transporta- tion technologies, previously a licensed mechanic, and had pre- viously given expert testimony. Proposed evidence found relevant and necessary. Plaintiff granted leave to call expert witness. Koeth v. Slack Lumber & Supplies Ltd. (Nov. 26, 2008, Ont. S.C.J., Turnbull J., File No. 174/04) Order No. 008/332/067 (9 pp.). Family Law CHILD WELFARE Child would face unacceptable risks if placed with grandparents Mother was incarcerated. Mother supported child being placed with father. Father was in voluntary drug www.lawtimesnews.com rehabilitation program. Father sup- ported child being placed with paternal grandparents. Paternal grandfather proposed child be placed with paternal grandfather. Maternal grandmother proposed child be placed with maternal grandmother. Child faced unac- ceptable risk if placed with mater- nal grandfather because of alco- hol and/or drug abuse, aggressive nature and unsettled home envi- ronment. There was unacceptable risk if child were placed with mater- nal grandmother because maternal grandmother was preoccupied with recent separation. There was unac- ceptable risk if child were placed with paternal grandparents because they were strangers to child. Child could not be adequately protected by supervision order. Child was to remain in care with access to family members. Scheduling of supervised access was in discretion of society. Catholic Children's Aid Society v. R. (M.) (Nov. 7, 2008, Ont. S.C.J. (Fam. Ct.), Pazaratz J., File No. C1354/07) Order No. 008/318/027 (9 pp.). CUSTODY Parents granted interim joint custody order pending trial Parties were married seven years and had one child. Mother made allegations that father sexually abused child. Allegations were found to be unsubstantiated. Father did not see child for one year. Access commenced. OCL report recommended joint cus- tody with primary residence to father. Father brought motion for interim custody of child. Mother sought to continue status quo of mother having residency of child. Father brought contempt motion against mother. Best interests of child could be determined only PAGE 15 after full trial. Regular, consis- tent and increased access with father was in child's best interests. Interim and temporary joint cus- tody was ordered with primary residence with mother. Access was set out for father. Wheeler v. Maiden-Wheeler (Nov. 25, 2008, Ont. S.C.J., Arrell J., File No. 8021/07) Order No. 008/332/047 (10 pp.). SUPPORT Motion to strike pleadings for failure to comply with support orders was dismissed Parties were married nine years and had three children. Children were in wife's care. Wife's income was $35,488. Husband did not pay support. Wife received ongoing spousal and child support through enforcement of order by FRO. Wife brought motion for order striking husband's pleadings for failure to comply with support orders. Husband brought motion for order extinguishing spousal and child support arrears. Wife's motion was dismissed. Husband's failure to pay ongoing was wilful. Husband did not conduct himself in manner so as to render support uncollectible. Failure to discharge support obligations was to be addressed at trial. Husband estab- lished material change in circum- stances in increase in wife's income and decrease in husband's income. Order was varied to provide hus- band was to pay child support of $1,575 based on annual income of $84,000 and spousal support of $500 per month. Husband's motion to extinguish arrears was dismissed. Dickinson v. Dickinson (Nov. 18, 2008, Ont. S.C.J., Gauthier J., File No. 17,7333/2007) Order No. 008/324/143 (9 pp.). LT Obtain Copies of Judgments from 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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