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Page 14 July 27, 2015 • Law Times www.lawtimesnews.com ian and compassionate grounds to overcome his inadmissibil- ity. Officer refused application and foreign national applied for judicial review. Application dismissed. Determination of inadmissibility in 2010 stood and could not be re-litigated by parties or re-determined by of- ficer. Three preconditions to operation of doctrine of issue estoppel are that same question has previously been decided, prior judicial decision was final, and parties to both proceed- ings are same. As all three pre- conditions to operation of issue estoppel were present in this case, officer erred by not consid- ering doctrine of issue estoppel with respect to 2010 decision of Federal Court. Federal Court denied leave to foreign national in respect of 2010 refusal of his permanent residency applica- tion pursuant to s. 34(1)(f ) of Act and that decision was final one. It would not be appropri- ate to send this matter back for re-determination in circum- stances of this case because of- ficer could not have come to dif- ferent conclusion. While court has discretion to relieve against harsh effects of issue estoppel where usual operation of doc- trine would work injustice, it is not clear that administrative tribunal has same discretion to override normal operation of issue estoppel in respect of prior court decision. Assuming that administrative tribunals have discretion to override is- sue estoppel in respect of prior court decisions, this discretion would be even more restricted than court's discretion to do so, which itself is very limited in ap- plication and only occurs in the rarest of cases. Balasingham v. Canada (Min- ister of Citizenship and Immi- gration) (Apr. 14, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-2616-14) 253 A.C.W.S. (3d) 909. ONTARIO CIVIL CASES Associations MEETINGS Applicants' motives in req- uisitioning meeting were not "clearly" of personal nature Applicants were members of respondent non-profit corpo- ration. They requisitioned di- rectors of respondent to call meeting of members to vote on reinstatement of suspended provincial section members and removal of named directors. Di- rectors refused, saying that pri- mary purpose of motions sub- mitted in requisition was to en- force personal claim or address personal grievance. Applicants decided to call their own meet- ing and requested list of mem- bers from directors, who did not comply with request. Respon- dent applied under Canada Not- for-Profit Corporations Act for exemption from requirement to provide requested shareholder list. Director was currently re- viewing application but had not issued requested exemption. Applicants applied for order that respondent call meeting of members. Application allowed. Right to call special meeting was substantive one and was not lightly to be interfered with. Ap- plicants' motives in requisition- ing meeting were not "clearly" of personal nature. To contrary, it appeared there were profound policy and direction disagree- ments of sort that membership was best suited to assess and de- cide. Respondent had not right under Act to stay of proceeding pending determination of their exemption application. Respon- dent was ordered to call meeting of members. Saskatchewan WTF Taekwondo Assn. Inc. v. Taekwondo Canada (May. 5, 2015, Ont. S.C.J., Sean F. Dunphy J., File No. CV-15- 526240) 253 A.C.W.S. (3d) 762. Civil Procedure DEFAULT There was plausible excuse for fail- ure of defendants to defend claim CM Inc. hired corporate defen- dant to install paving stones at plaza at price of $140,000. Work was completed by defendant's subcontractors in November 2009. All rights and interests in plaza were transferred from CM Inc. to plaintiff pursuant to court order. Plaintiff com- menced action against defen- dants for breach of contract and negligence. Plaintiff claimed $200,000 for cost of removing and re-installing paving stones as it alleged that many areas began heaving during winter of 2010-2011 as result of improper installation. Defendants were served with claim on August 29, 2011. Plaintiff agreed to waive filing of statement of defence pending investigation by defen- dants' insurer. Defendants were noted in default on November 1, 2011. Order dismissing ac- tion as abandoned dated June 18, 2012 was received by defen- dants on or near June 18, 2012. Default judgment was issued on October 25, 2013 in amount of $119,030.41. Notice of garnish- ment was issued on October 2, 2014. Defendants brought mo- tion to set aside noting in de- fault, default judgment and stay notice of garnishment. Motion granted. Defendants brought motion without delay upon learning of default judgment. There was plausible excuse for failure of defendants to defend claim. They believed that action was being defended by their in- surer. Defendants had arguable defence that damages occurred outside one year warranty pro- vided for work performed. Prej- udice of defendants being held liable for damages and costs in excess of $120,000 based on alleged breach of contract for which there was arguable de- fence greatly outweighed preju- dice, if any, to plaintiff. Noting in default and default judgment were set aside. Defendant was to deliver statement of defence within two weeks. Funds seized pursuant to notice of garnish- ment were to be returned to de- fendants. Foremost Cranberry Mews Lim- ited Partnership v. Ferreri (Apr. 30, 2015, Ont. S.C.J., M. Faieta J., File No. CV-11-433182) 253 A.C.W.S. (3d) 790. SUMMARY JUDGMENT This was not appropriate case in which to grant summary judgment Plaintiff was passenger in ve- hicle driven by defendant E and owned by defendant C when it veered from roadway and struck tree. Plaintiff and mother com- menced action against defen- dants. E did not file statement of defence so Minister of Finance exercised powers pursuant to s. 8(2) of Motor Vehicle Accident Claims Act (Ont.) (MVAC Act) to file statement of defence on E's behalf, pleading E had C's consent to drive vehicle. At ex- aminations for discovery, E gave evidence that she did not have C's consent to drive vehicle. C brought motion for summary judgment on basis that E did not have consent to possess or operate her vehicle on date of accident and C was not liable pursuant to s. 192 of Highway Traffic Act (Ont.) for any dam- ages sustained by plaintiffs as result of accident. C died dur- ing proceedings but prior to death she was examined for discovery. Motion dismissed. This was not appropriate case in which to grant summary judg- ment. Evidentiary record filed by C was deficient. Paragraph in E's statement of defence was unambiguous and deliberate statement that amounted to judicial admission. Although it was Minister and not E who prepared statement of defence, s. 8(2) of MVAC Act made it clear that admission bound E for all purposes in proceeding. Leave to withdraw admission was not sought. Without affidavit evi- dence from E, court could not reconcile her discovery evidence with formal admission. C had legal and evidentiary burden to establish that there was no genu- ine issue requiring trial. Formal admission and deficient eviden- tiary record were obstacles that C could not overcome. Forestall v. Carroll (Apr. 28, 2015, Ont. S.C.J., Diamond J., File No. 07-CV-338083PD2) 253 A.C.W.S. (3d) 808. Contracts RECTIFICATION Decision granting applica- tion to rectify plan docu- ments upheld on appeal Business entered into recipro- cal loan transaction with real estate investment trust, and money was routed through corporation related to business. Potential foreign exchange tax issue was made neutral by es- tablishing two subsidiaries to business. Business was sold and shares were no longer publicly traded. Because of sale, possibil- ity existed that foreign exchange gain or loss would be realized in connection with reciprocal loan arrangements. Reciprocal loan agreements were unwound with regards to certain hotels to fa- cilitate their sale, and subsidiar- ies cashed preferential shares, by mistake, which triggered unin- tended taxable foreign exchange gains. Application judge granted business's application to rectify plan documents. Application judge found that there was con- tinuing intention that arrange- ments would be tax neutral and that shares of subsidiaries would not be redeemed. Application judge held that tax planning had not been done on retroactive basis after audit by Canada Rev- enue Agency. Attorney General of Canada appealed. Appeal dis- missed. There was no basis for intervention with application judge's discretionary decision. Business had specific and un- wavering intention that transac- tions would be tax neutral and that no redemptions of relevant preferential shares should occur. Redemptions were authorized by mistake. Fairmont Hotels Inc. v. Canada (Attorney General) (Jun. 17, 2015, Ont. C.A., Janet Simmons J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C59942) De- cision at 248 A.C.W.S. (3d) 233 was affirmed. 253 A.C.W.S. (3d) 977. Landlord and Tenant CONSTRUCTION OF LEASE Proper conceptual approach to rent re-set provision was "notional sale principle" 100-year ground leases pro- vided for rent to be re-set after successive 20-year terms, by reference to fair market value (FMV) of lands, determined by agreement or arbitration based on appraised values. Parties un- able to agree on rent for first re- set period, resulting in arbitra- tion award and further appeal to Divisional Court. Parties unable to agree on rent for second re- set period, resulting in arbitra- tion award. Arbitration panel approached determination of FMV on basis that valuation should ref lect potential for free- hold residential condominium project on lands. Valuation fa- vourable to landlord. Tenants' appeal allowed. Proper concep- tual approach was "notional sale principle". Rent re-set provision called for determination of value of land, not value of use of land for particular purpose. Fact that condominium legislation cre- ated development opportunity disproportionately benefitted owner of freehold as compared to owner of leasehold. Legisla- tion and practical limitations constrained tenant's ability to develop condominium. Panel did not err in concluding that interest in lands to be valued was landlord's freehold inter- est, valued as vacant and unen- cumbered by lease, not tenant's leasehold interest. Panel erred to extent that it based conclusion regarding valuation on determi- nation that, under current leg- islation, tenants able to develop freehold residential condomin- ium to same extent as landlord. Condominium Act, 1998 (Ont.), continued to constitute restric- tion on tenants' use of land, as amendments only permitted tenant to use leasehold lands for leasehold condominium, not freehold condominium. Panel's award inconsistent with earlier decision of Divisional Court. Award failed to take into ac- count court's determination that landlord's freehold interest was to be valued excluding any development potential under land use legislation of which tenants unable to take advan- tage. Issue estoppel applied. Victoria University v. GE Cana- da Real Estate Equity (Dec. 23, 2014, Ont. S.C.J., H. Wilton- Siegel J., File No. CV-13-485218, CV-14-00010587-00 CL, CV- 13-485219, CV-14-00010588- 00CL) 253 A.C.W.S. (3d) 938. Municipal Law ACTIONS AGAINST MUNICIPALITY Plaintiff had reasonable excuse for delay in giving notice to city Plaintiff sued defendant city for damages arising from trip and fall on city sidewalk in Au- gust 2011. Plaintiff fractured wrist but she believed her injury would heal. After medical ap- pointment in November 2011, plaintiff learned she would have to live with pain and limita- tions for rest of her life. Plaintiff then decided to sue city and she retained lawyer. In December 2011 lawyer sent letter to city notifying it of plaintiff 's claim. City applied for summary judg- ment dismissing claim. Motion judge granted summary judg- ment and dismissed claim on basis that plaintiff did not have reasonable excuse for failing to give city notice within ten days of injury. Plaintiff appealed. Ap- peal allowed. Interpreting rea- sonable excuse broadly and lib- erally, plaintiff had reasonable excuse for her delay in giving notice to city. Plaintiff did not intend to sue city at first because she did not think her injury was serious. Plaintiff only decided to bring legal action when she learned she would suffer pain and limitations for rest of her life. Plaintiff then promptly re- tained counsel who immediate- ly gave notice to city. Whether city would be prejudiced in its defence as result of delay was genuine issue that required trial. There were material facts in dis- pute and record was incomplete. City had not met its burden of establishing that there was no genuine issue requiring trial on issue of prejudice. Seif v. Toronto (City) (May. 8, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., K. van Rensburg J.A., and D.M. Brown J.A., File No. CA C58919) Decision at 240 A.C.W.S. (3d) 484 was reversed. 253 A.C.W.S. (3d) 952. Police CASELAW

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