Law Times

PAGE 18 holes and plaintiff sought inter- locutory injunction restraining play of golf on portion of de- fendant's golf course. Applica- tion was dismissed. Balance of convenience favoured defen- dant. Plaintiff would not suffer irreparable harm. There was se- rious issue to be tried as to ex- istence of nuisance and whether defendant breached agreement. Loss plaintiff would suffer was fundamentally monetary loss and compensable in damages. Plaintiff was in position to take reasonable measures to mitigate loss on interim basis. Tanglewood (Sierra Homes) Inc. v. Munro Golf Ltd. (Apr. 28, 2009, Ont. S.C.J., Strathy J., File No. CV-09-370145) Order No. 009/120/061 (7 pp.). Interim Mareva injunction ordered dissolved Motion to continue interim Mareva injunction freezing two bank accounts. Sub-lease provid- ed for commencement of date of franchise and plaintiff provided cheque for first month's rent. Possession of location delayed. Plaintiff contacted property managers of Burlington loca- tion and advised that defendant not tenant of location. Plaintiff's materials on ex parte motion had not included agreement of purchase and sale which stated that lease start date subject to delay beyond vendor's control. Defendant produced documents to show it had entered into of- fer to lease Burlington location and had continued to pursue location for franchise. Motion dismissed and interim injunc- tion dissolved. No evidence on issue of dissipation of assets for purpose of defeating possible judgment in favour of plaintiff. Defendant still a franchisor with eleven locations. No evidence defendant even in financial dif- ficulty. Plaintiff did not establish strong prima facie case of fraud. Speculation and assumption not prima facie proof of fraud. Plain- tiff failed to make full and frank disclosure. Deliberate omission to produce franchise agreement which would have shown defen- dant could delay possession of premises for reasons beyond its control. Patel v. Shikar Properties Inc. (Apr. 29, 2009, Ont. S.C.J., Ric- chetti J., File No. CV-09-1492- 00) Order No. 009/124/068 (16 pp.). Insurance AUTOMOBILE INSURANCE Plaintiff failed to prove case fell within exception to threshold Plaintiff was injured in motor vehicle accident. Plaintiff's ve- hicle was struck from behind by vehicle owned and operated by uninsured. Plaintiff was wearing seat-belt. Plaintiff suffered neck and shoulder pain. Condition did not improve with physio- therapy, massage therapy and home exercises. Plaintiff was homemaker when injured. Plain- tiff did not seek treatment for in- juries since May 2007. Claim for non-pecuniary damages was dis- missed. There were serious prob- lems with plaintiff's credibility. Plaintiff failed to prove case fell CASELAW within exception to threshold. Plaintiff did not prove pain sub- stantially interfered with most of activities of daily living. Claim for future loss of housekeeping and home maintenance services was not subject to threshold. Plaintiff proved injuries suffered in accident prevented plaintiff from performing housekeeping and home maintenance duties at pre-accident level and claim was allowed at $70,250. Sabourin v. Dominion of Cana- da General Insurance Co. (Apr. 9, 2009, Ont. S.C.J., Valin J., File No. 3690-06) Order No. 009/103/063 (22 pp.). Landlord And Tenant RESIDENTIAL TENANCIES Board erred in concluding that tenants had obligation to vacate unit in mitigation Tenant's appeal of Landlord and Tenant Board decision. At first instance, board ruled that landlord had substantially interfered with enjoyment of unit by breaching maintenance obligations and not providing adequate supply of heat. Board awarded 25% rent abatement for 12 months preceding order and until deficiencies remedies. Board rejected harassment alle- gations. Appeal allowed in part. Board erred in concluding that tenants had obligation to vacate unit in mitigation of damages. Board erred by not considering claim for reasonable out of pock- et expenses, awarded on appeal for air cleaner and asbestos test- ing. Board misapplied limitation period under s. 32(2) of Tenant Protection Act, 1997 (Ont.), and erred in limiting retroactive abatement to one year prior to granting of order. Proper period of abatement reflects period when landlord in breach of Act, here from February 2005. Def- erence granted to board's finding of 25% abatement. Goodman v. Menyhart (Apr. 4, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Reilly and Karakatsanis JJ., File No. DC-07-00000321- 0000) Order No. 009/113/059 (10 pp.). Limitations INSURANCE Action barred by policy limitation period Application to strike action as barred by policy limitation pe- riod. Action brought against insurer for unidentified, unin- sured and underinsured cover- age arising from accident May 2001. Plaintiff commenced ac- tion against at fault driver in 2002 seeking $1,250,000. At- fault driver's insurer made statu- tory third party 2005 with only statutory minimum coverage of $200,000. Before settling that action, plaintiff sued own in- surer in 2008. Motion allowed. Pursuant to s. 17 of OPCF 44-R Family Protection Endorsement, 12-month limitation period as against own insurer ran from date plaintiff knew quantum of claim exceeded minimum limits of accident jurisdiction. Plain- tiff aware of those facts as early as when original claim filed in 2002, or when at fault driver's JuLy 13/20, 2009 • Law Times insurer added as third party in 2005, either event outside 12-month limitation period. In any event, plaintiff prohibited from action having settled with at fault driver for amount less than available limit without con- sent of own insurer. Sadhu v. Driver (Apr. 23, 2009, Ont. S.C.J., Arrell J., File No. 08- 3117) Order No. 009/118/061 (8 pp.). TORT Doctrine of special circumstances no longer applied to claims originating after coming into effect of Limitations Act, 2002 (Ont.) Plaintiff claimed injuries suf- fered while plaintiff was pas- senger on bus operated by defendant. Plaintiff did not respond to correspondence in- dicating defendant would add third party if plaintiff did not intend on adding third party to action. Third party brought motion to dismiss third party claim as statute-barred. Defen- dant argued delay in issuing third party claim was because of oversight by court. Motion was allowed. Third party claim was dismissed. Doctrine of special circumstances no longer applied to claims originating after com- ing into effect of Limitations Act, 2002 (Ont.). Third party claim was issued after expiry of limitation period. Claim was statute-barred. Sandrabalan v. Toronto Tran- sit Commission (Apr. 22, 2009, Ont. S.C.J., Brown J., File No. CV-06-314639 00A1) Order No. 009/113/005 (4 pp.). Summer Subscription Special! Get 2 years (80 issues) of information packed issues for only $175.50 Save 35% This offer expires: September 15, 2009 SubAd_LT_July13/20_09.indd 1 Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Now, you can save 35 percent off the regular price when you take advantage of our special two-year-rate! Subscribe today and get: • A 2-year subscription to Law Times (That's 80 "must-read" issues, delivering news, features and analysis by some of the province's most trusted legal writers and columnists)... $175.50 — That's a 35% savings! • Unlimited access to the Law Times digital edition and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer delivered to your inbox every week...FREE ❑ YES! 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