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Law Times • JuLy 13/20, 2009 DISCOVERY Interview of doctors who were former defendants was to be restricted to factual inquiries Plaintiffs brought action for medical negligence. Two doctors were no longer defendants. Ac- tion included four other physi- cians. Both doctors were exam- ined for discovery. Defendants sought order to be permitted to speak to two doctors to see if doc- tors would discuss case. Plaintiffs consented on condition counsel for plaintiffs be present at inter- view. Condition was reasonable. Neither doctor was required to talk to counsel for defendants. Interview was restricted to fac- tual inquiries. Counsel was not to seek to elicit answers that would constitute expert opinion evidence. Each doctor was to be interviewed separately. Milne v. Lackman (Apr. 9, 2009, Ont. S.C.J., McDermid J., File No. 2944098) Order No. 009/112/010 (4 pp.). SET-OFF Respondent not entitled to claim set-off based on right of indemnification Applicant acquired manufac- turing plant from respondent. Applicant agreed to manufac- ture product for respondent and respondent agreed to purchase product. Applicant became buyer of record for all material. Respon- dent claimed it was liable to sup- pliers as guarantor and sought to set-off amount of liabilities. Ap- plicant sought determination of validity of set-off claims asserted by respondent. Respondent was not entitled to claim set-off based on right of indemnification. Re- spondent did not establish inten- tion of parties was respondent would guarantee applicant's obli- gations to suppliers. Respondent was not entitled to indemnifica- tion. Respondent's claim for set- off of amount of 2009 realty taxes failed. Respondent did not show there was amount owing under lease as additional rent in respect of realty taxes. Respondent did not establish claim against ap- plicant in respect of delivery of product represented by two in- voices and did not establish basis for set-off. Applicant failed to pursue claim in timely fashion. There was no amount to be taken into consideration in determina- tion of net balance between ap- plicant and respondent. Korex Don Valley ULC (Re) (Apr. 27, 2009, Ont. S.C.J., Wilton- Siegel J., File No. 08-Cl-7925) Order No. 009/119/024 (16 pp.). SETTLEMENT No evidence that executed, typed version of minutes was condition precedent to enforceability Application by wife for final or- der in accordance with signed minutes of settlement. Following two-day October 2008 settle- ment conference before judge and counsel, minutes signed. Following settlement, husband's counsel advised court and family responsibility office that matter settled. Draft order sent by wife's counsel to husband's November 2008. Husband's counsel object- ed to draft, particularly related to house-purchase element of settlement. Husband refused to sign consent. Motion considered from perspective of summary judgment motion. Enforcement motion properly heard by judge other than he who conducted settlement conference. Detailed minutes included 56 paragraphs, mutual releases and undertaking to consent to order and themselves supported prima facie conclusion that intended to be full and final resolution. No evidence that ex- ecuted, typed version a condition precedent to enforceability. Fact that document untidy, scribbled and contains handwritten addi- tions not creating genuine issue for trial. Husband raising objec- tions to minutes that related to enforcement or compliance with terms, not the certainty of the terms themselves. Parties con- ducted themselves in accordance with terms of minutes, includ- ing regarding child care, child support, property payments and equalization payments. Judgment granted. West v. Oreskovich (Mar. 26, 2009, Ont. S.C.J., Gauthier J., File No. 15639/08(00)) Order No. 009/106/009 (24 pp.). THIRD PARTY PROCEEDINGS Third party was entitled to rely on release Plaintiff operated restaurant in- sured by third party. Insurance was arranged by defendant in- surance brokers. Restaurant suf- fered flood. Plaintiff's claim was settled. Plaintiff executed final release in favour of third party. Plaintiff brought action against insurance brokers claiming de- fendants failed to secure adequate business interruption loss insur- ance. Defendants issued third party claim. Third party sought order staying main action and third party action. Third party ac- tion was stayed. Third party was entitled to rely on release. Issues between plaintiff and third party and plaintiff and defendants were interwoven. Main action was stayed. Having proceeded with settlement without excepting defendants and having obtained benefits of settlement, plaintiff had to assume burden of release imposed in terms of precluding claims over. 1562860 Ontario Ltd. v. In- surance Portfolio Inc. (Apr. 1, 2009, Ont. S.C.J., Bielby J., File No. 4022A/07) Order No. 009/110/060 (15 pp.). Contracts FRANCHISE AGREEMENTS Franchisor entitled to injunction restraining disturbance of status quo pending trial Franchisor purported to terminate three franchises because of alleged breaches. Franchisor brought ac- tion for breach of franchise con- tract. Defendants were co-owners of three franchises. Franchisor sought interlocutory injunction. Franchisor sought to close down three fast-food restaurants and to restrain three franchisees from operating similar restaurant busi- ness within eight-kilometre radius of current locations. Franchisees sought order restraining plaintiff from disturbing status quo pend- ing trial. Franchisees denied de- fault and refused to comply with post-termination provisions of franchise agreements. Franchi- sor's motion was allowed. Fran- chisor had strong prima facie case. Franchisor showed serious issue that franchisees breached CASELAW agreement. Franchisor would suffer irreparable harm. Franchi- sees would not be able to satisfy damages award. Irreparable harm went to goodwill and reputation. Franchisees would suffer irrepa- rable harm. Franchisees' motion was dismissed. Balance of conve- nience favoured franchisor. Quizno's Canada Restaurant Corp. v. 1450987 Ontario Corp. (Apr. 28, 2009, Ont. S.C.J., Perell J., File No. CV-09-7997-00CL) Or- der No. 009/120/066 (23 pp.). Evidence SIMILAR FACTS Pleading fell far below requirements for pleading similar fact evidence Appeal from order of master re- quiring defendants to answer questions refused at examination for discovery of defendant fam- ily physician. Plaintiffs unrelated patients of defendant and alleged sexual abuse and other abuse per- petrated upon them while they were patients. Plaintiffs alleged in statement of claim that defendant was charged by police with mul- tiple counts of sexual assault and indecent assault against dozens of current and former patients. Appeal allowed. Pleading fell far below what would be required to plead similar fact evidence. In absence of pleading which set out framework for similar fact evidence, questions regarding prior complaints against defen- dant including complaints made to the College of Physicians and Surgeons and questions regarding criminal charges for sexual and indecent assaults against patients did not meet semblance of rele- vance test. Test not whether there was any other way apart from discovery process for plaintiffs to obtain evidence. Not pleaded that defendant engaged in similar behaviour with other patients on prior occasions. Tanner v. McIlveen (Trustees of) (Apr. 22, 2009, Ont. S.C.J., Wil- son J., File No. 06-CV-307223 PD3) Order No. 009/118/021 (8 pp.). Family Law CUSTODY Insufficient evidence to establish father's mild sleep apnea would impair his ability to be care giver Parties had one child. Mother was ordered to return child to matrimonial home. Order speci- fied equal access to child on week about basis. Father was granted exclusive possession of matrimo- nial home. Mother brought mo- tion to set aside or amend order to eliminate overnight access to father and to prohibit father from driving while child was in vehicle. Father denied having been diagnosed with narcolepsy or sleep apnea. Mother sought to set aside order on basis of fraud. Father's medical conditions were before judge when judge dealt with motion and made order. Mother argued father's medical records established father provid- ed fraudulent evidence to court. Mother was dismissed. Mother did not discharge onus of estab- lishing fraud on balance of prob- abilities with respect to falling asleep while driving. There was insufficient evidence to establish father's mild sleep apnea would impair father's ability to be care giver to child. www.lawtimesnews.com Marciello v. Marciello (Apr. 14, 2009, Ont. S.C.J., Ricchetti J., File No. FS-09-1221-00) Order No. 009/111/112 (32 pp.). DOMESTIC CONTRACTS Husband did not take advantage of wife's vulnerability Parties separated. Parties decided to reconcile. Parties signed post marital agreement. Reconcilia- tion was not successful. Parties participated in drafting of separa- tion agreement that was signed in 2004. There was provision for no spousal support. In 2007 wife told husband separation agreement was not legal. Husband brought application requesting enforce- ment of separation agreement. Wife sought spousal support, child support and arrears. There were no grounds based on duress or undue influence to set agree- ment aside. Husband did not take advantage of wife's vulnerability. Wife was aware of rights and that wife could have lawyer assist her. There was financial disclosure be- tween parties. There was no evi- dentiary basis to challenge valid- ity of separation agreement. Wife tried to find employment. Release of spousal support was not in sub- stantial compliance with Divorce Act (Can.). Wife was entitled to support of $1,400 per month for 36 months. Matrimonial home was to be listed for sale. Husband was to pay retroactive spousal sup- port of $23,800. Husband was to pay younger child's rent on ac- commodation at university and tuition until child completed first post-secondary degree. Pollard v. Pollard (Apr. 21, 2009, Ont. S.C.J., Mossip J., File No. FS-07-60994-00) Order No. 009/120/069 (29 pp.). FAMILY RELATIONSHIPS Father not entitled to retroactive support for his niece whom he had adopted Application by father for retroac- tive and ongoing child support for J., the father's niece, who was adopted by mother and father. Mother and father married in January 1995 and separated in April 2003. Application grant- ed only as to ongoing support. Mother ordered to pay monthly child support for J. in amount of $188 based on income of $22,000. Mother became parent or stood in place of parent of J. by virtue of adoption. J. came to Canada when she was 12 years of age. J. resided with mother and father and subject to their dis- cipline and to their provision of necessaries of life for six months until time of separation. Mother had stood in place of parent for J. during that period and could not unilaterally withdraw that rela- tionship. No order for retroactive child support. Adoption process part of mechanism to bring fa- ther's family to Canada. Retro- active arrears would have been strongly considered had it been a third party adoption. J. had not suffered at all or lost child sup- port. Unanswered questions as to whether father's sister or par- ents contributed to J.'s support. Father had significantly delay in bringing motion. Motion only brought when mother sought to enforce child support arrears in relation to H., child of marriage. Cheema v. Lail (Apr. 29, 2009, Ont. S.C.J., Ricchetti J., File No. FS-04-050229-00) Order No. 009/124/074 (14 pp.). PAGE 17 SUPPORT Trial judge imputed income without evidentiary foundation Trial judge awarded custody of child to respondent. Appellant was ordered to pay spousal sup- port of $250 per month and child support of $333 per month based on imputed income of $36,000 per year. Appellant was ordered to pay equalization payment of $12,000. Appeal was allowed in part. Evidence was capable of supporting conclusion it was in child's best interests to award cus- tody to respondent. Trial judge imputed income to appellant without evidentiary foundation. Appellant was ordered to pay child support of $164 per month in child support. Evidence did not support award in amount of $100 per month for extraor- dinary expenses and it was set aside. Spousal support award was set aside in entirety. No evidence supported finding respondent suffered economic disadvantage as result of marriage. Marriage was not long. Trial judge's de- termination of equalization pay- ment of $12,000 was supported by limited evidence available. Homsi v. Zaya (Apr. 20, 2009, Ont. C.A., Rosenberg, Watt and Epstein JJ.A., File No. C48638) Order No. 009/111/121 (8 pp.). Motion to vary child support based on change of employment was dismissed Parties had four children. Hus- band was ordered to pay child support of $636 per month which was based on husband's in- come of $2,200 per month. Two eldest children were full-time post-secondary students. Hus- band was found guilty on domes- tic assault charge and placed on probation. City refused to renew husband's taxi driver's licence as result. Husband became unem- ployed. Husband obtained other employment. Husband argued he made $1,000 per month. Husband brought motion to vary child support. There was material change in circumstances subse- quent to order. Motion to vary child support based on change of employment was dismissed. Husband's income was not as represented as $1,000. There was little information on husband's real income. Wife's argument that husband's income could be higher was not established on evidence. Arrears for period of unemployment were eliminated. Order went reducing temporary child support arrears. Bhangu v. Bhangu (Apr. 14, 2009, Ont. S.C.J., Ricchetti J., File No. FS-08-063153-00) Order No. 009/111/128 (9 pp.). Injunctions INTERLOCUTORY RELIEF Plaintiff not entitled to interlocutory injunction restraining play of golf Parties were aware of golf balls spraying onto property at time plaintiff purchased property. Lands affected by golf ball spray were not built upon. Colling- wood was not prepared to pro- cess application for site plan approval without measures to mitigate effects of golf ball spray. Plaintiff brought action for spe- cific performance of agreement requiring defendant to re-align