Law Times

Law Times • February 27, 2012 Cohabitation in house was brief. Respondent claimed one-half share based on unjust enrichment. Costs were ordered against respondent for litigation misconduct. Respon- dent's counsel proposed settlement. Applicant's counsel counter-offered and respondent's counsel conveyed draſt agreement and statutory dec- laration in terms proposed by ap- plicant. Respondent argued counsel did not have authority to accept offer. Applicant brought motion to dismiss all claims for failure to pay costs. Applicant sought summary judgment. Judgment was granted in terms of agreement that appli- cant pay respondent $6,000 in full satisfaction of any interest in home. Motion date plea of poverty lacked credibility by lateness and lack of support by evidence of real inabil- ity to work or reasonable effort to prioritize costs payment. Analysis of deprivation experienced showed little connection to purchase of home. Respondent showed no un- just enrichment to applicant against which to assert corresponding deprivation. Summary judgment was proper approach to claim for unjust enrichment and that ground for claim against home proceeds was dismissed. Summary judg- ment was granted on claim of giſt. Presumption of resulting trust was not set aside and operated to hold that respondent held title in trust for applicant. There was binding settlement resulting arising from correspondence between counsel. Contract was formed. Exchange of correspondence sufficed to indicate intention to be bound. Payout pro- visions were about implementation and were not essential terms. Sub- ject to payment according to terms of agreement applicant was entitled to proceeds of sale free and clear of any interest of respondent. Oliver v. Racette (Oct. 5, 2011, Ont. S.C.J., Eberhard J., File No. FC 10- 92) 208 A.C.W.S. (3d) 698 (12 pp.). Insurance LIABILITY INSURANCE Insurer not required to indemnify settlement because of lack of coverage Company operated scrap business. Employee put himself in blind spot for crane operator at workplace. Crane ran over employee sever- ing right leg and cutting leſt heel profoundly. Owners opted out of WSIB insurance for owners and employee. Alternative disability in- surance was cheaper and went be- yond workplace. Employee brought action against company and crane operator. Insurer argued claim was not covered and insurer refused to defend action. Company brought action against insurer, brokerage group and individual broker. Com- pany, brokerage group and broker settled employee's action with com- pany paying $200,000 and broker/ brokerage paying $750,000. Com- pany, broker and brokerage sought indemnification for payout. Claims were dismissed. There was lacuna with respect to coverage for per- sonal injury beyond disability in- surance that was neither requested nor contemplated by owners. Gap was not contemplated by broker who did not request employer's lia- bility endorsement. Insurer was not required to second guess insured and broker. There was no coverage for personal injury to employee as employee or executive officer. Settlement achieved was reason- able. Insurer was not required to indemnify settlement because of lack of coverage. Because of clear lack of coverage there was no duty to defend. There was no bad faith shown on insurer's part in denying coverage. Sam's Auto Wrecking Co. v. Lombard General Insurance Co. of Canada (Oct. 28, 2011, Ont. S.C.J., Whitten J., File No. 00-2060) 208 A.C.W.S. (3d) 845 (13 pp.). Labour Relations COLLECTIVE AGREEMENT Plaintiff made three complaints to defendant but did not file grievances Motion by defendant to strike out plaintiff's claim on basis court lacked jurisdiction or claim disclosed no reasonable cause of action. Plaintiff was federal government employee who sought $700,000 pain and suf- fering damages, punitive damages and loss of opportunity damages on basis defendant retaliated to her sexual harassment complaints. Plaintiff claimed her job was threat- ened by senior employee and work files were removed from her care until she was leſt with no work at all. Defendant argued plaintiff's claim was based on its handling of her ha- rassment complaints so was within jurisdiction of tribunals. Motion allowed. Plaintiff made three com- plaints to defendant but did not file any grievances. Plaintiff's employ- ment was governed by collective agreements that clearly set out her right to file grievances about these types of matters, so court lacked jurisdiction and there was no basis to exercise its residual jurisdiction. Defendant was awarded $6,495 costs. Clout v. Canada (Oct. 14, 2011, Ont. S.C.J., Power J., File No. 11-51003) 208 A.C.W.S. (3d) 850 (8 pp.). Landlord And Tenant TERMINATION OF LEASE None of principal's testimony confirmed or corroborated by other evidence Action by tenant and its principal against landlord and competitor for damages for breach of contract, conspiracy, and related causes of ac- tion. Tenant entered into five-year lease with landlord. Lease provided for termination and re-entry by landlord if monthly rent was more than seven days late. Principal alleg- edly spent about $50,000 or $60,000 on renovations. Tenant's business started well but was subsequently affected by principal's marital prob- lems. Competitor expressed interest in taking over premises but tenant refused. Tenant needed extra time to pay rent one month and landlord agreed to extend deadline on at least two occasions. Tenant did not bring cheque by final deadline so landlord locked tenant out. Landlord then leased premises to competitor for higher rent. Landlord claimed he spoke to principal and invited him to take tenant's belongings. Princi- pal claimed landlord threatened to CASELAW call police if principal returned to premises. Landlord claimed he sub- sequently told principal he would have to pick up tenant's belongings within six months. No one picked up tenant's belonging within six months so competitor gave some items to charity and threw remain- der in garbage. Tenant and principal did not commence legal proceed- ings until just before expiration of six-year limitation period. Action dismissed. Principal was not cred- ible and reliable witness and his evidence could not be accepted on critical issues. Principal had been inconsistent about source of funds for late rent payment. If principal had actually had money to pay rent as he alleged, he would have paid on time. None of principal's testimony was confirmed or corroborated by other evidence. Seven-day grace period had not started anew when tenant failed to pay rent by extend- ed deadline. Extended deadline was extension of grace period itself rather than new deadline with ad- ditional grace period. Landlord had not exercised distraint so tenant could not complain of excessive dis- traint. Landlord had clearly treated lease as at end and re-took pos- session. Landlord and competitor were not liable for disposing of ten- ant's belonging since tenant had not collected them within reasonable time. If tenant's belonging were as valuable as principal claimed then principal would have taken steps to recover them. Tenant could not claim for loss of value of improve- ments since lease provided they be- came property of landlord. Malka v. Vasiliadis (Oct. 5, 2011, Ont. S.C.J., Campbell J., File No. 05-CV-284126PD1) 208 A.C.W.S. (3d) 851 (64 pp.). Professions PHYSICIANS AND SURGEONS Defendant did not meet standard of care of ophthalmic specialist Plaintiff attended defendant doc- tor's office. Plaintiff had detached retina. Defendant diagnosed of ar- terial occlusion. Plaintiff claimed care provided by defendant in terms of examination and assess- ment and follow-up instructions provided did not meet standard of care expected of ophthalmologist. Plaintiff claimed plaintiff was blind in leſt eye as result of not having timely treatment of retinal detach- ment. Plaintiff brought claim for damages arising from alleged medi- cal malpractice of defendant doctor. Defendant did not meet standard of care of reasonable and prudent ophthalmic specialist with respect to follow-up on differential diagno- sis. It was equally possible on date of examination to conclude plaintiff suffered from retinal detachment as from arterial occlusion. Defen- dant fell below standard of care by not insisting on follow-up related to both diagnoses. Defendant fell below standard of care by not in- sisting plaintiff's family doctor re- fer plaintiff to retinal specialist for further examination and monitor- ing. Defendant fell below standard of care with respect to follow-up instructions to plaintiff. Instruc- tions should have been more care- www.lawtimesnews.com fully worded and more fulsome. Standard of care demanded that defendant inform plaintiff of what plaintiff should have watched for where detached retina was pos- sible although not immediately identifiable. Lack of follow-up and inadequate instructions given to plaintiff had direct impact on time that elapsed between initial exami- nation and vision deterioration that occurred. Plaintiff was 40% contrib- utorily negligent. Plaintiff did not do everything reasonably necessary and could not absolve himself from some responsibility in doctor/pa- tient relationship. Bennett v. Landecker (Nov. 1, 2011, Ont. S.C.J., Gilmore J., File No. CV- 07-084525-00) 208 A.C.W.S. (3d) 864 (19 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Judge's ultimate findings not compro- mised by problematic comments Appeal by accused from his con- viction on charges of sexual inter- ference and uttering death threat. Accused committed these offences against 8-year-old daughter of his partner. Complainant was 16 at time of trial. Accused was 44-years old at time of trial and he denied al- legations against him. He claimed that trial judge failed to assess reli- ability of complainant's evidence, he relied on irrelevant considerations in assessing complainant's cred- ibility and he applied different stan- dards to evidence of complainant and appellant. Appeal dismissed. Judge's reasons were thorough, de- tailed and thoughtful. They were responsive to live issues that arose from evidence. They met test for sufficiency. Judge did not fail to properly assess both credibility and reliability of complainant's evidence. He adequately addressed concerns that arose from her testimony. Re- garding reliance on irrelevant fac- tors, judge made some comments that might be regarded as unhelpful or out of place in proper assessment of credibility. However, consider- ing evidence as a whole and judge's reasons in their entirety integrity of his ultimate findings were not compromised by problematic com- ments. Judge did not hold accused's evidence to higher standard than complainant's evidence. R. v. C. (F.) (Nov. 30, 2011, Ont. S.C.J., Trotter J., File No. 218/09) 98 W.C.B. (2d) 81 (11 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused failed to provide that racial profiling influenced officers Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged aſter he was found in possession of loaded shot- gun in public park. He claimed that police did not have reasonable and probable grounds to arrest him and PAGE 15 that he was target of racial profiling. Two police officers noticed accused riding his bicycle on sidewalk. He did not appear to have destination and he was looking at officers. He was not carrying anything. Offi- cers followed him and when they saw him near tennis court they saw that he had duffle bag slung on his back. Officers believed that he stole bag and they arrested him for pos- session of stolen property. One of- ficer searched him and found two shotgun shells in his pocket. Bag was half open and officer could see shotgun that was partially wrapped in T-shirts. Application dismissed. Accused failed to prove that racial profiling influenced officers' action and that it resulted in arbitrary de- tention. Even though accused was black he was not improperly tar- geted. Accused's actions rose to the point of appropriate police curiosity that gave them reason to follow him and what they saw next gave them reason to arrest him. Officers had both subjective and objective rea- sons to arrest accused. Arrest was lawful and search was lawful as in- cident to that arrest. Even if Charter was violated evidence was admis- sible because admitting it would not bring administration of justice into disrepute. R. v. Rainford (Nov. 25, 2011, Ont. S.C.J., Lemon J., File No. CRIMNJ(P) 932/11) 98 W.C.B. (2d) 100 (14 pp.). Evidence HEARSAY Highly probative value of evidence significantly outweighed prejudicial effect Accused charged with second degree murder. Crown applied to admit witness's evidence from preliminary inquiry pursuant to s. 715(1) of Criminal Code. Accused allegedly doused victim with gaso- line and set him on fire. Witness testified at preliminary inquiry that he overheard conversation between accused and victim shortly aſter victim had been set on fire. Witness had been diagnosed with extremely aggressive form of cancer by time trial began. Application allowed. Defence suffered from limited de- gree of prejudice because of inabil- ity to cross-examine witness at trial. Prejudice resulting from witness's inability to testify was mitigated by comprehensive cross-examination of witness conducted at prelimi- nary inquiry on conversation he overheard. Accused's statement was directly relevant to issue of whether he possessed mens rea required for second degree murder. Accused's statement could possibly assist jury in assessing whether incident was caused by accident, or by accused, or by victim's attempted suicide. Statement could assist jury in decid- ing whether accused was too intoxi- cated to know what he was doing. Admission of witness's previous tes- timony at preliminary inquiry did not result in any trial unfairness nor prejudice to accused. Highly proba- tive value of evidence significantly outweighed any remaining prejudi- cial effect. R. v. Hall (Oct. 7, 2011, Ont. S.C.J., Archibald J.) 98 W.C.B. (2d) 124 (7 pp.). LT

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