Law Times

Page 14 September 8, 2015 • Law timeS www.lawtimesnews.com ONTARIO CIVIL CASES Aboriginal Peoples CROWN RELATIONSHIP Indian Residential Schools Settlement Agreement did not require active search for and identification of witnesses who could support claims Representatives of victims who suffered abuse at Indian Resi- dential Schools (IRS's) com- menced various legal proceed- ings against federal govern- ment and others responsible for operation of IRS's. Parties entered into IRS's Settlement Agreement (IRSSA) to resolve these legal proceedings. Part of IRSSA dealt with government document disclosure. Federal government was supposed to compile and release informa- tion about IRS's to facilitate claims made by victims under IRSSA. Information released by federal government about particular IRS failed to men- tion known incident. Certain victims brought request for directions under IRSSA re- garding federal government's compliance with its disclosure obligations. Request granted in part. Federal government was required to conduct additional searches with police for docu- ments relevant to particular incident, but other requested relief was denied. Court's re- sponsibility was to hold parties to their negotiated bargain, no more, no less. Federal govern- ment was entitled to resist be- ing asked to do more that it bargained for, though it did less than it bargained for in this instance. Federal govern- ment was subject to two dis- crete document collection and disclosure obligations under IRSSA. First, federal govern- ment was to "search for, col- lect and provide a report set- ting out the dates a Claimant attended a residential school". Second, federal government was to "search for, collect and provide a report about the per- sons named in the Application Form as having abused the Claimant". When approximate time and place of particular incident of abuse was known with sufficient particularity to allow document searches to be made, federal government was obliged to respond to request for documents that might pro- vide information about that in- cident. In present case, federal government admitted it had not directly collected docu- ments from police. IRSSA did not require active search for and identification of witness- es who could support claims. Such proposed witness-match- ing program fell outside terms of IRSSA. Fontaine v. Canada (Attorney General) (Jun. 4, 2015, Ont. S.C.J., Perell J., File No. 00- CV-192059) 255 A.C.W.S. (3d) 251. Contracts MISTAKE Defence of non est factum was sufficient to void transfer of property Mother and father expanded property by purchasing ad- jacent property. Son lived in basement of home. Father and son enlarged workshop on expanded home property. Parents intended to give work- shop to son someday. Father died and son took advantage of mother's poor English and had her transfer expanded home property to him. Son subse- quently transferred expanded home property to himself and mother as joint tenants. Moth- er brought action against son for order setting aside transfers and restoring her sole owner- ship of expanded home prop- erty. Action was allowed. Son brought counterclaim for ben- eficial interest in workshop or restitution. Counterclaim was dismissed because son did not come to court with clean hands and it was premature. Son ap- pealed. Appeal dismissed. Trial judge correctly concluded that defence of non est factum was made out, which was suf- ficient to void transfer. Trial judge also found that transfer was obtained as result of un- due inf luence, which was sup- ported by evidence. Son lived in mother's home, mother was recently widowed, English was not her first language, she had limited comprehension and reading ability in English and she did not receive indepen- dent legal advice. Trial judge did not err in analysis of coun- terclaim. There was no evi- dence that property increased in value as result of workshop addition. Servello v. Servello (Jun. 16, 2015, Ont. C.A., R.G. Juriansz J.A., P. Lauwers J.A., and Grant Huscroft J.A., File No. CA C59361, M45103, M44845) De- cision at 245 A.C.W.S. (3d) 330 was affirmed. 255 A.C.W.S. (3d) 337 Courts JURISDICTION Forum non conveniens deci- sion was entitled to deference Plaintiff region claimed that defendants fraudulently con- spired with each other to de- ceive and cause it to enter into contract based on false repre- sentations made to induce it to enter into contract. Plain- tiff sought damages for breach of contract, fraud, deceit, negligent misrepresentation and conspiracy. Defendants brought motion to dismiss ac- tion for want of jurisdiction or to stay action on basis that Ontario was not most conve- nient forum. Motion was dis- missed. Defendants appealed. Appeal dismissed. There was no basis to interfere with mo- tion judge's decision that court had jurisdiction over action. It was only necessary for mo- tion judge to conclude that there was good arguable case for assuming jurisdiction on consideration of pleadings and evidence filed. Motion judge's decision dismissing motion that Ontario was not appropri- ate forum was entitled to defer- ence. There was no basis upon which to interfere with motion judge's conclusion that, in cir- cumstances, it would be rea- sonable to expect defendants to be called upon to defend action in Ontario. York (Regional Municipality) v. LeBlanc (Jun. 15, 2015, Ont. C.A., R.G. Juriansz J.A., P. Lau- wers J.A., and Grant Huscroft J.A., File No. CA C59828) 255 A.C.W.S. (3d) 347. Damages CONVERSION Trial judge did not err in com- pensating plaintif f $7,500 for lost time and productivity as result of conversion of die blocks Plaintiff was granted judgment of $270,735 against defendant for committing tort of con- version of several very large metal die blocks. Defendant appealed damages assessment. Appeal dismissed. Die blocks were unusual, unique product. Plaintiff 's storage yard was not dumping ground for obsolete, useless die blocks and was not equivalent of automobile or old tire graveyard site. Die blocks were stored, not bur- ied, on plaintiff 's yard. They were cared for, inventoried, ar- ranged in rows and numbered. They were all useable and there was evidence that some of them were used. Trial judge did not err by awarding damages on basis of replacement cost. Trial judge did not misapprehend evidence and did not make palpable and overriding er- rors. Trial judge did not err in compensating plaintiff $7,500 for lost time and productivity as result of conversion of die blocks. Canada Forgings Inc. v. River- side Excavating (Niagara) Ltd. (Jun. 15, 2015, Ont. C.A., J.C. MacPherson J.A., Gloria Ep- stein J.A., and L.B. Roberts J.A., File No. CA C58547) De- cision at 238 A.C.W.S. (3d) 256 was affirmed. 255 A.C.W.S. (3d) 353. Mortgages DISCHARGE Order for discharge of mortgage flowed from judge's resolution of dispute In prior proceeding, judge in- terpreted disputed agreement in applicant's favour. Under in- terpretation adopted, applicant could decline to pay $800,000 mortgage, which was regis- tered against title to property. If it did then respondent had option to repurchase property for $1.2 million. Applicant de- clined to pay mortgage but re- spondent did not proceed to re- purchase property pursuant to option. Applicant then applied to have mortgage discharged. Application was granted. Re- spondent appealed. Appeal dismissed. Mortgage should be discharged. Agreement ex- pressly provided that if trans- action failed to close for any reason not directly attributable to fault of applicant then mort- gage was deemed to be satisfied in full. Order for discharge of mortgage f lowed from judge's resolution of parties' dispute and respondent's failure to re- purchase property for $1.2 mil- lion. Failure did arise from any fault of applicant. Golfnorth Properties Inc. v. 457351 Ontario Inc. (Jun. 11, 2015, Ont. C.A., K.M. Wei- ler J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C59807) 255 A.C.W.S. (3d) 479. Personal Property LIENS Appellant did not fall within class of workers and artisans that s. 7 of Repair and Storage Liens Act (Ont.) sought to protect Appellant brought motion for declaration that it had non- possessory lien under Repair and Storage Liens Act (Ont.) in respect of aircraft owned by respondent I; declaration that it was in lawful posses- sion of aircraft; and extension of ex parte injunction. Mo- tion was dismissed. Appellant appealed. Appeal dismissed. Motion judge did not err in holding that appellant was not entitled to repairer's non- pos- sessory lien in respect of air- craft. Appellant did not carry out aircraft repairs in question. Appellant's claim was based solely on fact that it loaned money to G respondents who effected repairs. Appellant did not carry out repairs or modi- fications at issue; it did not be- stow skill, labour or money on aircraft; and it not effect im- provements to aircraft. Appel- lant did not fall within class of workers and artisans that s. 7 of Act sought to protect. Fact that appellant provided funds to G respondents to finance costs of repairs to aircraft did not alter that finding. Act did not extend repairer's lien to lenders who merely loaned money to repairers or storers. Appellant was not entitled to possessory or non-possessory lien under Act. Any claim for continued injunctive relief was based solely on appellant's alleged status as unpaid creditor of I. Nothing established that plain- tiff would not be able to sue I on any alleged debt it was owed or that it would not be able to enforce judgment. Motion judge did not err in ruling that appellant must pay G respon- dents unpaid storage charges concerning aircraft. Storage charges were incurred because appellant, through its injunc- tive proceedings, prevented I, lawful owner of aircraft, from removing aircraft from On- tario and storage charges rep- resented direct expense that fell within undertaking as to damages. SG Air Leasing Ltd. v. Inchat- savane Co. (Proprietary) Ltd. (Jun. 17, 2015, Ont. C.A., Ja- net Simmons J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C60255) Decision at 252 A.C.W.S. (3d) 571 was af- firmed. 255 A.C.W.S. (3d) 483. Torts CONSPIRACY Dismissal of action by pilots arising from merger of senior- ity list upheld on appeal Canadian Airline Pilots As- sociation (CALPA), trade union that represented pilots in Canada, initiated process to merge pilot seniority lists at Air Canada and five regional airlines. Air Canada pilots and regional pilots had different perspectives on how merged seniority list should look. Ar- bitrator crafted framework for merged seniority list and then drafted actual merged seniority list. Neither frame- work nor list was binding on Air Canada and neither could be implemented without its agreement. Air Canada pilots voted to leave CALPA and join new union, Air Canada Pi- lots Association (ACPA), and merged seniority list was not implemented. In class action, plaintiffs of class comprised of Air Ontario pilots claimed that defendant Air Canada pilots committed tort of unlawful act conspiracy. Plaintiffs sued for expenses incurred in connec- CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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