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LAW TIMES • NOVEMBER 21, 2011 Tecnologies (July 29, 2011, Ont. S.C.J., Hennessy J., File No. C-832/10) 205 A.C.W.S. (3d) 894 (12 pp.). Civil Procedure SUMMARY JUDGMENT Defendant not absolved of liability because of intervening act Plaintiff drove vehicle to gas sta- tion to purchase gas. Plaintiff was assaulted by assailants. Assailants entered vehicle and tried to pull plaintiff from vehicle. Plaintiff moved vehicle away from assail- ants and out of gas station. Plain- tiff brought claim for statutory accident benefi ts. Defendant dis- puted there was accident within meaning of Statutory Accident Benefi ts Schedule - Accidents on or After November 1, 1996, O Reg 403/96. Defendant ar- gued direct cause of plaintiff 's injuries was assault of unknown assailants not use or operation of automobile. Use of car had not ended before injury was suff ered. Insured had not physically left car. Th ere was direct or proxi- mate causal relationship between plaintiff 's injuries and owner- ship, use or operation of vehicle. Plaintiff was involved in accident within meaning of Statutory Ac- cident Benefi ts Schedule. Defen- dant was not absolved of liability because of intervening act. Downer v. Personal Insurance Co. (Aug. 23, 2011, Ont. S.C.J., Murray J., File No. 02-BN- 7094) 205 A.C.W.S. (3d) 944 (11 pp.). Constitutional Law CHARTER OF RIGHTS Officer had no obligation to ask about disabilities in circumstances Action by landlord against police offi cer and police services board for damages for violation of s. 15 of Canadian Charter of Rights and Freedoms. Landlord was el- derly man who was legally blind and hearing impaired. Land- lord owned but did not occupy single-storey home with two units. First tenant rented front unit while second tenant rented rear unit. Landlord successfully evicted fi rst tenant but allowed her to stay another night. Next morning, landlord entered front unit at about 600 a.m.. Second tenant called police from rear unit. Police offi cer arrived while landlord was blocking second tenant's entry at door connect- ing both units. Offi cer told landlord to get away from door. First tenant tried to open door but landlord pushed her away. Offi cer approached landlord to arrest him. Landlord allegedly struck offi cer in upper chest/ throat area. Landlord claimed he had been jabbed by offi cer and had not struck offi cer. Ac- tion dismissed. Landlord failed to establish breach of s. 15 of Charter. Offi cer had no knowl- edge of landlord's disabilities and saw no indication of them when fi rst confronting landlord. Of- fi cer had no special obligation to ask about disabilities in these circumstances. Offi cer acted reasonably in asking landlord to move away from door that sec- ond tenant was trying to enter. Offi cer's evidence with respect to who made contact with whom was accepted. Force used while escorting landlord to police ve- hicle was reasonable and neces- sary. Alleged breach of Human Rights Code (Ont.), could not have provided basis for remedy under s. 24(1) of Charter. Russell v. York (Regional Munici- pality) Police Services Board (July 30, 2011, Ont. S.C.J., Brown J., File No. 06-CV-304928PD3) 205 A.C.W.S. (3d) 1115 (38 pp.). Debtor And Creditor ENFORCEMENT Defendant had valid registered debenture that took priority over ownership Plaintiff s brought claim for order discharging debenture owned by defendant. Plaintiff argued debenture was unenforceable because enforcement action was outside limitation period. Defen- dant relied on res judicata based on previous judicial decision be- tween plaintiff and original de- benture holder. Plaintiff corpora- tion was dissolved for years and was revived briefl y to commence action. Claim was dismissed. Th ere was no determination as to validity of debenture. Limita- tion period expired on specifi ed date. Plaintiff did not commence action until over 12 years after plaintiff was fi rst entitled to do so. To enable plaintiff to success- fully advance limitation argu- ment would enable plaintiff to benefi t by plaintiff 's own fraudu- lent conduct and lack of clean hands. Transfer of property was for express purpose of shelter- ing property from debenture. It would be injustice to allow plain- tiff to succeed on argument that Limitation Act (Ont.), ought to defeat registered debenture. De- fendant had valid registered de- benture that took priority over ownership of plaintiff . Carfrae Estates Ltd. v. 2108790 Ontario Inc. (July 22, 2011, Ont. S.C.J., Mulligan J., File No. 07- CV-084542-00) 205 A.C.W.S. (3d) 976 (14 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Damages direct consequence of pre-existing conditions and deficiencies Action by homeowner against neighbours, contractor and municipality for damages and injunctive relief for nuisance, trespass, strict liability and neg- ligence. Homeowner and neigh- bour owned adjacent properties with ranch-style homes that were about 50 years old. Properties had swale between them along property line to allow surface water to drain from properties. Water tended to accumulate in swale during wet periods due to insuffi cient fl ow to municipal ditch. Neighbours added second storey above garage, enlarged back of home and expanded pa- tio with municipality's approval. Contractor had performed work and municipality had performed inspections. After about one year, homeowner's home developed mould, structural cracking and subsidence. Homeowner con- CASELAW tended renovation work caused more water to run onto her prop- erty and thereby caused prob- lems. Action dismissed. Neigh- bours' use of their land was at all times natural and nothing done by them constituted non-natural use that would have given rise to doctrine of strict liability. Home- owner's claims did not fall within category of trespass to property. Homeowner never alleged neigh- bours placed water directly onto her property. Action was more properly framed in nuisance. Neighbours' conduct in carrying out renovations had been reason- able and prudent. Neighbours had retained experts and ob- tained required approvals from municipality. Homeowner failed to establish neighbours' con- duct caused damages. Evidence did not establish accumulation of water in locations other than swale. Nothing in evidence con- nected neighbours' conduct with any damages claimed by home- owner. Damages complained of by homeowner were direct con- sequence of pre-existing condi- tions and defi ciencies in home- owner's home. Kay v. Caverson (Aug. 11, 2011, Ont. S.C.J., Daley J., File No. 03-BN-10495-00A1) 205 A.C.W.S. (3d) 1114 (74 pp.). Professions BARRISTERS AND SOLICITORS Jurisdictional error did not taint entire award Solicitors delivered bills with respect to accounts. Fees were assessed. Solicitors brought mo- tion opposing confi rmation of report and certifi cate of assess- ment. Motion concerned only one account. Solicitors argued assessment offi cer exceeded ju- risdiction by holding only one liable for costs to solicitors with respect to account. Motion was allowed in part. Report and cer- tifi cate with respect to account was ordered confi rmed subject to variation that clients were jointly and severally liable for all amounts assessed. Assessment of- fi cer exceeded jurisdiction by de- termining threshold retainer is- sue. Rather than reducing award assessment offi cer unilaterally absolved company from any li- ability with respect to account. Jurisdictional error did not taint entire award. Other portions of offi cer's reasons were suffi cient and were amply supported by evidence. Reasons did not show reversible error with respect to amounts awarded to solicitors for account. Nicholas C. Tibollo Professional Corp., Solicitors v. Wasserman As- sociates Inc. (Aug. 10, 2011, Ont. S.C.J., Goodman J., File No. CV-06-0747-00) 205 A.C.W.S. (3d) 1093 (21 pp.). Real Property CONDOMINIUMS Applicant's reasonable expectations had not been breached Application by owner of com- mercial units in respondent's mixed use condominium com- plex for order compelling respon- dent to purchase applicant's com- mercial units at fair value on basis www.lawtimesnews.com respondent had acted oppressive- ly towards applicant. Applicant had made numerous requests to respondents since its purchase for repairs to address continuing problems with water penetration of commercial units. Application dismissed. Respondent applicant's while somewhat dilatory in past had now taken steps that seriously addressed concerns. Building dated and presented number of challenges requir- ing sensitive balancing of vari- ous competing interests. Funds were expended to address various problems related to residential units but it could not be said that residential interests unfairly pre- ferred to commercial. Applicant's reasonable expectations had not been breached. Applicant had not been oppressed in sense of having been unfairly prejudiced, unfairly disregarded, unjustly and without cause. Respondent had responded to complaints of water leaks in reasonably prompt and professional way. Courthouse Block Inc. v. Middle- sex Condominium Corp. No. 173 (July 5, 2011, Ont. S.C.J., Rady J., File No. 2280/2010) 205 A.C.W.S. (3d) 1101 (16 pp.). Torts LIBEL AND SLANDER Internet postings and information conveyed to media not capable of constituting defamation Motion by defendants for order striking out portions of amended statement of claim as disclosing no reasonable cause of action. Competition Bureau com- menced inquiry into bid-rigged PAGE 15 allegations in 2006 against sev- eral companies and individuals including plaintiff s. Plaintiff s and others suspected of co-or- dinating bids for IT service con- tracts with federal government. Attorney General fi led charges in February 2009. Competition Bureau announced charges on its website in press release which provided further details regard- ing type of conduct Competition Bureau seeks to deter. Plaintiff s alleged in amended statement of claim that Competition Bureau defamed them on two occasions by using language which sug- gested plaintiff s engaged in price fi xing and fraud, off ences for which they were never charged. Internet postings alleged to be defamatory. Oral and written communication which took place between Bureau represen- tatives and various media outlets defamatory. Motion granted. Defendants did not go beyond simply stating that plaintiff s had been charged with bid-rigging and did not imply that plain- tiff s engaged in conduct more serious and blameworthy than bid-rigging. Bid-rigging charges incorporate notion of fraud. In- ternet postings and information conveyed to media not capable of constituting defamation. In- ternet postings made plain that plaintiff s merely stood accused of bid-rigging and had not yet been convicted of any off ence. Canada (Minister of Industry) v. TPG Technology Consult- ing Ltd. (July 28, 2011, Ont. S.C.J., Kershman J., File No. 10-49259) 205 A.C.W.S. (3d) 1111 (9 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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