Law Times

PAGE 22 not penal judgment. Part of ac- tion that did not relate to en- forcement of judgment did not amount to abuse of process but it was stayed on basis of lack of standing. United States of America v. Yemec (Aug. 26, 2009, Ont. S.C.J., Belobaba J., File No. 02-CV- 237070CM3) Order No. 009/240/016 (52 pp.). Constitutional Law CHARTER OF RIGHTS Federal Child Support Guidelines (Can.) not contrary to s. 15 of Charter Motion by father for declara- tion that Federal Child Sup- port Guidelines (Can.), were unconstitutional. Mother had custody of two children. Moth- er earned $150,000 per year while working only three days per week as physician. Mother successfully brought motion for child support. Father's an- nual income was imputed to be $60,000. Father unsuccessfully appealed. Father contended it was unfair that mother's po- tential income of $250,000 per year was not taken into ac- count under Guidelines. Mo- tion dismissed. Father failed to establish discrimination under s. 15 of Charter. Father failed to identify any comparator group for purposes of discrimination analysis. No personal character- istic was at issue in context of child support obligations. Any differential treatment imposed by Guidelines was not based on enumerated or analogous grounds. Father was not being denied benefit of law or be- ing subjected to discriminatory burden. Imputing income only to paying parent did not violate essential human dignity. Guide- lines were reasonable means of ensuring custodial parents could meet day-to-day expenses of raising children while ensuring non-custodial parents met their legal obligation to support their children. Children's constitu- tional rights could not be con- sidered since father did not have standing to enforce them.. Premi v. Khodeir (July 17, 2009, Ont. S.C.J. (Fam. Ct.), Turnbull J., File No. F 1290/03) Order No. 009/229/060 (73 pp.). EXECUTIVE POWER Federal Child Support Guidelines (Can.) not ultra vires for failing to give proper effect to s. 26.1(2) of Divorce Act (Can.) Motion by father for declara- tion that Federal Child Support Guidelines (Can.), were uncon- stitutional. Mother had custody of two children. Mother earned $150,000 per year while work- ing only three days per week as physician. Mother successfully brought motion for child sup- port. Father's annual income was imputed to be $60,000. Father unsuccessfully appealed. Father contended it was un- fair that mother's potential in- come of $250,000 per year was not taken into account under Guidelines. Father contended Guidelines were ultra vires since they did not give proper effect to s. 26.1(2) of Divorce Act (Can.), which referred to par- ents' relative abilities to contrib- ute. Motion dismissed. Father's motion was dismissed on basis of collateral attack on prior order but Guidelines were nonethe- less found to be constitutional. While Quebec Child Support Guidelines contained in Code of Civil Procedure (Que.), took both parents' incomes into ac- count and seemed to make more sense, federal Guidelines were still within constitutional bounds. Provision that only per- mitted paying parent's expenses to be taken into account when he or she had access at least 40% of time was social policy matter for Parliament. Fact that Act did not particularize formula on which federal Guidelines were based did not render formula invalid. Parliament permitted creation of whatever formula would give effect to principles enunciated in s. 26.1(2) of Act. Father's arguments were under- standable but any perceived de- ficiencies in federal Guidelines should be addressed through legislative change. Premi v. Khodeir (July 17, 2009, Ont. S.C.J. (Fam. Ct.), Turnbull J., File No. F 1290/03) Order No. 009/229/060 (73 pp.). Contracts BUILDING CONTRACTS Builders required to replenish security deposits but developer only entitled to amounts invoiced for issues that did not fall within notice provision Action by developer against builders for damages for breach of contract or restitution for unjust enrichment. Developer entered into agreements of pur- chase and sale with three build- ers. Builders essentially agreed to assume responsibility for instal- lation of various services within their own lots, to comply with subdivision agreements, and to indemnify developer for dam- age and deficiencies. Builders provided security deposits to ensure compliance. Agreements provided builders would only be required to pay for damage after being given notice of opportuni- ty to repair damage themselves. Developer invoiced builders for various items and builders paid some of them. Builders did not complain about fact that some damage was remedied without giving notice of opportunity to remedy it. Developer used security deposits to cover other invoices but some invoices re- mained unpaid. Action allowed in part. Builders were required to replenish security deposits but developer was only entitled to amounts invoiced for issues that did not fall within notice provi- sion. Notice provision applied to all damage for which devel- oper sought redress whether or not damage arose on builders' own lots. General practice in industry was acknowledged as being different but notice provi- sion was unambiguous. Absence of prior complaints about lack of notice would only have been relevant if notice provision was ambiguous. It would have been easy for parties to include dis- tinction between damage inside and outside of builders' own lots CASELAW but they did not. Result was not absurd or totally unworkable. Claim for certain item for which notice was given was disallowed since item was not considered to be damage and was not oth- erwise captured by agreements. Provision relating to security deposits clearly indicated they were to be replenished regard- less of any other consideration. Tas-Mari Inc. v. DiBattista Gambin Developments Ltd. (Aug. 5, 2009, Ont. S.C.J., Gray J., File No. CV-05-012059-00; 07-CV-337490PD2) Order No. 009/223/026 (54 pp.). INTERPRETATION Royalty agreement was clear and unambiguous Application by S Ltd. for dec- laration as to its obligation re- garding payment of royalties under smelter return royalty agreement. N Ltd. entered into smelter return royalty agreement with B Corp.. N Ltd. misread provisions of agreement, errone- ously believing that net smelter return royalty for gold was in- significant flat rate of 0.013%. Royalty in actual fact was sliding scale royalty tied to price of gold. N Ltd. and S Ltd. purchased mine. S Ltd. was operating un- der false belief that royalty under agreement was flat rate. S Ltd. was required to indemnity N Ltd. up to flat rate of 0.013%. Royalty agreement was clear and unambiguous. N Ltd. alone was responsible under agreement for payment of royalties. St. Andrew Goldfields Ltd. v. Newmont Canada Ltd. (July 23, 2009, Ont. S.C.J., Roberts J., File No. CV-08365533) Order No. 009/216/006 (22 pp.). Coroners PROCEDURE Coroners did not err in refusing to issue summons Two coroners decided not to issue summons to employee to give evidence before inquests respecting selection and com- position of jury roll in Thunder Bay district. Applicants sought information about representa- tion of First Nations individu- als from reserves on jury roll. Applications for judicial review were dismissed. Coroners made no jurisdictional error or error in legal principle in refusing to issue summons to employee. Coroners had no statutory power to review process for se- lection of jury roll or to provide remedy if it were shown to be flawed. Decision was not unrea- sonable. Rules of natural justice were not breached. Information from employee could only be relevant to creation of jury roll which was outside authority of coroner. Nishnawbe Aski Nation v. Eden (July (Div. Ct.), Wilson, Leder- man and 22, 2009, Ont. Swinton Corporations DERIVATIVE ACTIONS It was not in best interests of OMERS to commence derivative action www.lawtimesnews.com JJ., File No. 75/09; 77/09) Order No. 009/209/289 (17 pp.). S.C.J. Individual was applicant's sole shareholder. Individual was controlling shareholder of M. through applicant. Ontario Se- curities Commission ("OSC") and minority shareholders of M. applied for relief under oppres- sion remedies. Inspector's report indicated individual withdrew significant M. funds to pay individual's own debts which contributed to M.'s insolvency. New board of M. accepted take- over bid. Applicant sought leave to commence derivative action against 19 named defendants. OMERS amalgamated M.. In- dividual's position in proposed derivative action was that share price on sale was at significant undervalue. OMERS declined to commence action. Individu- al argued if leave were granted OSC action would have to be delayed for derivative action so both could be tried together. Individual changed position indicating request would not be made to consolidate in event leave was granted in response to OMERS's position that delay was applicant's sole purpose. Application was dismissed. Ap- plicant was not acting in good faith. Sudden change in position did not alter applicant's motive of seeking leave to commence derivative action of derailing tri- al of OSC action. Unexplained delay in pursuing or investigat- ing claims asserted in proposed action was considered in con- cluding applicant was not acting in good faith. It was not in OM- ERS best interests to commence derivative action. Peel Financial Services Ltd. v. OMERS Realty Management Corp. (Aug. 13, 2009, Ont. S.C.J. (Comm. List), Mesbur J., File No. CV-08-7650-00CL) Order No. 009/229/048 (191 pp.). OPPRESSION No evidence that individual defendant benefited personally from oppressive conduct Individual defendants and plain- tiff were shareholders in corpo- rate defendant. Plaintiff claimed individual defendant wrongfully excluded plaintiff from partici- pation in affairs of corporate de- fendant. Individual defendants excluded plaintiff from opera- tions of store and purported to remove plaintiff as director and reduce plaintiff's sharehold- ings. Plaintiff sought oppression remedy. Corporate defendant ceased operations. Declaration was made plaintiff was and re- mained director of corporate de- fendant and was and remained holder of 50% of common shares. Claim was dismissed in all other respects. There was no evidence that individual defen- dant benefited personally from oppressive conduct. Plaintiff's expectation that plaintiff would enjoy initial 50% shareholding in corporate defendant was rea- sonable. Plaintiff's expectation plaintiff would be director was reasonable. Plaintiff agreed in- dividual defendant would have operational control of Second Cup portion of business. Indi- vidual defendant was not justi- fied in excluding plaintiff from business and was oppressive. Individual defendants acted in OctOber 5/12, 2009 • Law times oppressive manner in attempt- ing to unilaterally alter respec- tive shareholdings. Plaintiff did not establish individual defen- dant took money from corpo- rate defendant. It was not fair or equitable to order individual defendants to buy-out plaintiff's shares or to pay damages. Hu v. Sung (Aug. 13, 2009, Ont. S.C.J., Brown J., File No. 05-CV-291950PD1) Order No. 009/229/052 (32 pp.). Damages LIBEL AND SLANDER Defendants ordered to pay $10,000 each for participation in creation, publication or republication of libellous comments Determination of damages fol- lowing finding that defendants had posted defamatory com- ments about plaintiff on web- site. Plaintiff ran fraud aware- ness website which had posted critical commentary on defen- dants' business which promoted careers in modeling. Defendants posted comments on numerous websites indicating that plaintiff was career criminal and pervert and sent e-mail to defendant that many people hated him and were planning lawsuits against him. Summary judgment was granted and permanent injunc- tion was issued. Defendants or- dered to pay $10,000 each for their part in creation, publica- tion or republication of libellous comments. It was appropriate to award aggravated damages in these circumstances since defen- dants' conduct had been high handed and oppressive. Their goal was to destroy plaintiff's reputation in order that plain- tiff's publication of criticisms of their business would either cease or not be believed. Defendants were motivated by actual malice which increased plaintiff's injury. Their attempts to broadly dis- seminate, on constant and con- tinuous basis, these damaging statements must have increased plaintiff's mental distress and humiliation. Accordingly there was finding of malice on basis of intrinsic evidence derived from libelous statements themselves, demonstrating that defendants were motivated by unjustifiable intention to injure plaintiff. Henderson v. Pearlman (Aug. 18, 2009, Ont. S.C.J., Hennessy J., File No. C8937/05) Order No. 009/236/120 (11 pp.). Family Law DOMESTIC CONTRACTS Wife willingly negotiated terms of agreement Parties were married four years and had two children. Parties signed separation agreement. Agreement provided husband would have mortgage and joint liabilities; wife was to transfer matrimonial home to husband; no spousal support was payable; primary residence of older child was to be with husband and younger child was to be with wife; no child support was to be paid; and husband was to pay wife $7,000. Parties agreed not to hire lawyers. Parties used ez-Divorce. Agreement was pre- pared based on questionnaires

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