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Law timeS • September 14, 2009 tion allowed. Cross-application allowed in part. Applicant enti- tled to fi le and rely on expert re- port. Failure to comply with or- der not deliberate and excluding the report would not further the interests of justice. Show cause deadline extended until today and applicant had shown cause to not dismiss her action. Terms on admitting report would be dealt with through order of costs. Respondent needed to be able to meaningfully respond to expert reports so further disclo- sure ordered. Applicant ordered to produce drafts of reports, copies of letter with instructions to experts and accounts related to payment of experts. Applicant not required to disclose fi les and notes as these were privileged. Bookman v. Loeb (June 26, 2009, Ont. S.C.J., Mesbur J., File No. 98-FA-7315FIS; 01-CV-205593) Order No. 009/187/091 (11 pp.). Family Law DOMESTIC CONTRACTS Marriage contract set aside pursuant to s. 56(4) of Family Law Act (Ont.) Claim by wife for order that mar- riage contract be set aside. Hus- band and wife married in June 1995. Wife approached husband few weeks before wedding about signing of agreement dealing with property and other issues to protect her parents' assets from any claims from husband and for any money received by wife from her parents to be considered as hers alone. Neither husband nor wife had any property of their own at time. Contract signed and dealt with issues of property and waivers of spousal support. Order that marriage contract be set aside pursuant to s. 56(4) of Family Law Act (Ont.). Wife accordingly entitled to pursue claim for spousal support and for equalization payment. Con- tract exceeded scope of parties' original intentions. Parties did not understand nature and con- sequences of agreement. Wife clearly did not put her mind to spousal support and property re- leases contained in agreement. Gilliland v. Gilliland (July 3, 2009, Ont. S.C.J., McWatt J., File No. 06-FS-320885FIS) Or- der No. 009/187/064 (32 pp.). Insurance AUTOMOBILE INSURANCE Hotel entitled to deduction for long-term disability benefits and to benefit of trust and assignment provisions, to same extent as protected defendants Motion to determine two ques- tions of law arising from 2001 motor vehicle accident in which plaintiff driver was struck by ho- tel guest's rental-agency-owned vehicle driven by hotel parking valet. Plaintiff in receipt of long- term disability ("LTD") benefi ts from employer's insurer C.. Rent- al vehicle insured with "fi rst loss insurance" with third-party limit of $250,000 plus excess cover- age to $750,000 limit, with both policies responding to claim. Ho- tel P.H.'s general liability policy potentially responding to claim as excess insurance only, with third party limit of $2,000,000. Unprotected P.H.'s exposure lim- ited to damages for which un- protected defendant liable, and for which a protected defendant is not, unless plaintiff obtains damages over $1,000,000 against protected defendants. At issue was: (1) whether P.H. entitled to deduction for LTD benefi ts paid prior to trial, to same extent as protected defendants, subject to s. 267.9(3) of Insurance Act (Ont.); and (2) whether P.H. entitled to benefi t of trust and assignment provisions of s. 267.8(9), (10) and (12) of Act with respect to future LTD benefi ts, to same ex- tent as protected defendants. No distinction in collateral benefi ts' deductibility and trust provisions of s. 267.8 of Act between pro- tected and unprotected defen- dants. Each question answered in affi rmative. Burhoe v. Mohammed (June 8, 2009, Ont. S.C.J., Wein J., File No. 03-BN-12698) Order No. 009/166/139 (13 pp.). Labour Relations PICKETING There was labour dispute within meaning of s. 102 of Courts of Justice Act (Ont.) Defendant was shutting down operations. Plaintiff obtained order for defendant to deliver up all tooling used in manufac- ture of service parts for plaintiff and to allow plaintiff reasonable access to premises. Entrances were blocked by employees or former employees of defendant. Employees or former employees were picketing defendant. Plain- tiff sought injunction restraining employees or former employees of defendant from obstructing plaintiff 's access to premises. Motion was allowed. Th ere was labour dispute within meaning of s. 102 of Courts of Justice Act (Ont.). Plaintiff met onus to es- tablish reasonable eff orts to ob- tain police assistance to prevent obstruction to plaintiff 's lawful entry were unsuccessful. Th ere was strong prima facie case freedom of expression exercised by picketers did not extend to protect activity. Plaintiff clearly established irreparable harm. Balance of convenience favoured granting injunction. General Motors Corp. v. BBI Enterprises Group, Inc. (June 29, 2009, Ont. S.C.J. (Comm. List), Newbould J., File No. CV-09-8248-00CL) Order No. 009/187/065 (16 pp.). Limitations REAL PROPERTY Applicants entitled to declaration that respondents had no interest in lot Boundary dispute between own- ers of adjacent lots. Applicants and respondents both claimed title to fl ower bed running along southerly boundary of one lot and 2.6 feet onto other lot. Pre- decessors in title of lots had been husband and wife who had treat- ed both lots as one family recre- ation property without regard for boundary line. Raised fl ower garden was established by prede- cessor in title. Th is strip of land became subject of this litigation. One lot was fi rst sold in 1969 and this lot was purchased by applicants in 1988. Respondents purchased other lot in 1997. Pri- or to this none of neighbours oc- cupying lots had taken any steps to exclude other neighbours' CaSElaW access to this strip of land. Re- spondents contended that they maintained retaining wall and cared for vegetation from 1997 until 2005 to exclusion of ap- plicants. Applicants contended that for fi rst few years after re- spondents purchased land it was rented out and they did nothing to improve or maintain property. Applicants commissioned survey and respondents subsequently constructed new retaining wall, mailbox, planted extensively and erected a privacy fence. Claim of respondents to possessory title dismissed. Applicants entitled to declaration that respondents do not have any interest in lot and that respondents remove all chattels and structures they had placed on lot. Applicants had paper title to disputed property. Court concluded that respon- dents knew that raised strip of land was on other lot and made conscious decision to create facts to support contention that they and their predecessors on title had always treated disputed strip as their own to exclusion of oth- ers. To support their position they asserted claim to this strip of land by aggressively doing acts to establish possession of land. Court concluded respon- dents making ill conceived land grab. As there had been no acts by respondents to exclude appli- cants' enjoyment of strip of land in dispute earliest prescription period could commence would be 1997. Evidence was clear that acts committed by respondents, even if they could be construed as factually giving rise to claim of adverse possession, have not fulfi lled time requirements of Limitations Act (Ont.) Shennan v. Szewczyk (May 5, 2009, Ont. S.C.J., Th ompson J., File No. 80/07) Order No. 009/187/022 (10 pp.). Mortgages FORECLOSURE Application to restrain completion of sale was dismissed Application to restrain respon- dent from completing pending sale. Applicant owned vacant lot, which it hoped to develop into retirement home. Applicant defaulted on mortgage to re- spondent, for which respondent obtained summary judgment. Property beside that of appli- cant's contained a medical centre and had easement against appli- cant's property that 25 parking spots must be provided. Appli- cant blamed its fi nancial demise on manager of medical centre, who allegedly interfered with applicant's development plans because he wanted to purchase applicant's lot. Respondent of- fered applicant's lot for sale after mortgage defaulted on. Respon- dent rejected one off er because it was not made on proper forms, then accepted off er from manag- er of medical centre. Applicant argued respondent acted in bad faith because off er made by man- ager was lower than fi rst off er made. Applicant argued it could obtain funding to pay mortgage and proceed with its develop- ment. Application dismissed. Manager of medical centre showed no faith in complaining about development plans, which disrupted his easement. Respon- dent had legitimate business rea- son for rejecting fi rst off er and www.lawtimesnews.com Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Disburse your costs! BestCase allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! was now bound by agreement with manager. Applicant was essentially arguing that respon- dent should have accepted fi rst off er by other company, which defeated any irreparable harm argument it sought to make. Respondent would suff er greater harm if injunction granted as it would be open to damages claim by manager. Applicant had not yet obtained fi nancing so plans to pay mortgage and develop lot were mere speculation. 2135707 Ontario Inc. v. Foremost Mortgage Holding Corp. (June 26, 2009, Ont. S.C.J., Baltman J., File No. CV-09-1663-00) Order No. 009/187/107 (12 pp.). Professions BARRISTERS AND SOLICITORS Moneys impressed with trust upon receipt, regardless of non-deposit into trust account Law Society of Upper Canada ("LSUC") acting as trustee since March 2008 over M.M.'s law practice following allega- tions that M.M. had engaged in mortgage fraud. Prior order pooled funds recovered or traced from M.M. and in three bank accounts and ordered pro rata distribution amongst clients and fi nancial institutions. Trial of is- sues conducted as to whether: (1) A.M., M.M.'s spouse, was a bona fi de creditor entitled to recover $116,685 paid to her from M.M.'s trust account; and (2) whether M.M.'s client L.S. entitled to cash found in M.M.'s desk in amount of $43,140. As to A.M., M.M. had signed promissory note in favour of PAGE 19 his in-laws, assigned to his wife M.M., in amount of $100,000. Payout of note in January 2008, in amount of $116,685 from trust account traced to A.M.'s bank account, subsequently fro- zen. A.M. a bona fi de creditor, holding equitable assignment of February 2006 note. A.M. had valid defence against LSUC and held entitled to keep funds for own use. As to L.S., it alleged providing cash to M.M. from time-to-time, including $45,000 March 2008, for fi nancing real estate transactions, though deny- ing knowledge that funds main- tained in cash in M.M.'s desk. M.M. in breach of requirement under s. 7(1) of LSUC by-law No. 9 pursuant to Law Society Act (Ont.), by not immediately depositing $45,000 payment into trust, and s. 4(1) of by-law No. 9 by accepting cash payment in excess of $7,500. Moneys im- pressed with trust upon receipt, pursuant to s. 1(3) of by-law No. 9, regardless of non-deposit into trust account. Moneys discretely identifi able as L.S.'s only as con- sequence of breach by M.M. of by-laws. No evidence to suggest that funds constituted segregat- ed trust account, in any event not permitted in cash. Cash held as part of pooled mixed trust funds to be distributed pro rata amongst clients and fi nancial in- stitutions. Law Society of Upper Canada v. Mazzucco (June 16, 2009, Ont. S.C.J., Brown J., File No. LS-005/08) Order No. 009/169/030 (13 pp.).Evans v. Gonder (June 12, 2009, Ont. S.C.J., Ramsay J., File No. 08- 501) Order No. 009/167/004 (6 pp.). LT 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208