Law Times

Law Times • June 1, 2009 tion, hoping it would go away. Defendant gave no details of the criminal proceedings or his financial situation. Defendant claimed "inadvertence, con- fusion and frustration" led to delay, but failed to explain any of these claims. Defendant also offered no evidence of a triable defence, instead, simply assert- ing that he intended to defend action if judgment set aside. Justice would not be served by setting judgment aside. Embro v. Stojadinovich (Feb. 20, 2009, Ont. S.C.J., Gordon J., File No. 06-4474-SR) Order No. 009/061/012 (13 pp.). Contempt Of Court PUNISHMENT Defendant sentenced to five days' incarceration for contempt of order requiring him to deliver up vehicle Defendant found in contempt of order requiring him to deliver up to Mercedes-Benz Financial, 2007 Mercedes-Benz E63 he bought under conditional sales contract. Defendant afforded five days to purge contempt prior to sentencing and did so by returning car in good con- dition. Sentence of five days' incarceration ordered. Conduct that undermines fundamental principle of rule of law should not be treated with leniency. Any differences in range of sentences for civil and crimi- nal contempt should flow from application of principle of pro- portionality. Defendant made only 7 of 84 required monthly payments and responded to ef- forts to continue by purport- ing to extinguish unilaterally his debt. He played game with Mercedes-Benz and police and displayed arrogant disrespect for court and court process. He disregarded court order for return of car for six months. Mitigating factors were that de- fendant apologized and this was first time he had been found in contempt. Defendant's defi- ance of Canadian law palpable, unrepentant, and unremitting, and his apology not accepted as sincere. Incarceration appro- priate despite fact this was first offence. Mercedes-Benz Financial v. Ko- vacevic (Mar. 3, 2009, Ont. S.C.J., Brown J., File No. CV- 08-00360497-0000) Order No. 009/068/039 (11 pp.). Damages MISREPRESENTATION Plaintiff entitled to enforcement of tracing order Application by successful plain- tiff for enforcement of tracing order made in judgment against defendant. Defendant had been found to have masterminded fraud against plaintiff and all assets purchased with money obtained through fraud were found to be held in trust for plaintiff. Plaintiff sought to en- force this tracing order against a property jointly owned by defendant and his wife. Plain- tiff relied on forensic account- ing that showed $160,000 de- posited into wife's account and used for purchase, and evidence that defendant could not have purchased property without using proceeds of fraud. Wife claimed home was purchased with money received as wed- ding gift. Application allowed. Plaintiff's claim was not strong but it was sufficient to put onus on defendant to explain how property was acquired. Wife's wedding gift explanation un- corroborated and defendant failed to offer any explana- tion. Plaintiff established claim to trace $160,000. Property subject to equitable charge of $160,000 in favour of plaintiff. Certificate of pending litigation issued against property and sale ordered. i Trade Finance Holdings Inc. v. Ramsackal (Feb. 25, 2009, Ont. S.C.J., Strathy J., File No. 03-CV-246248CM4; CV-08-368558) Order No. 009/061/018 (5 pp.). Family Law COSTS Mother awarded costs of $10,000 in successful custody and support action Application by mother for $16,736 in costs from family law litigation in which she was completely successful in obtain- ing custody and support. Father argued that he had attempted to settle the issues in 2007 but the mother did not co-operate. Application allowed in part. Mother entitled to costs by vir- tue of her success and evidence demonstrated it was the father who had been aggressive, con- trolling and uncompromising, making demands and threaten- ing the mother with litigation. The mother's lawyer had written numerous letters to the father's lawyer, with no response and had suggested mediation or ne- gotiation. Mother's lawyer's rate of $150 per hour reasonable, but $110 per hour for law clerk too high and reduced to $90 per hour. Additionally mother would have incurred some legal costs even if father had co-oper- ated. Mother awarded costs of $10,000. MacDonald v. Tizard (Feb. 25, 2009, Ont. S.C.J., Aitken J., File No. 128/05) Order No. 009/061/023 (4 pp.). Insurance AUTOMOBILE INSURANCE Motion judge properly found that insurer waived breach of statutory condition Motion judge properly de- clared that appellant insurer W. had waived breach of statutory condition 4(1) in automobile insurance policy of its client L.. L. was killed in single car accident and her passenger G. was seriously injured. G. sued estate of L.. L.'s blood alcohol level at time of accident was 143 mg/100 ml, contravening term of her G2 driver's licence which required her blood alco- hol level be zero when she was operating motor vehicle. W.'s position on motion was that L.'s breach of statutory condi- tion of her policy meant that its contractual liability for third CASELAW party liability policy limits of $100,000 was voided, poten- tially limiting G. to maximum recovery of $200,000 under W. policy. Appellant filed its State- ment of Defence in July 2002. In following three years, action proceeded through discover- ies, production and settlement discussions, including dismissal of action against two parties. Motion judge was entitled to find that W.'s conduct consti- tuted continuing election that amounted to waiver by conduct of L.'s breach. Logel Estate v. Wawanesea Mu- tual Insurance Co. (Mar. 19, 2009, Ont. C.A., Doherty, MacPherson and MacFarland JJ.A., File No. C49500) Ap- peal from 171 A.C.W.S. (3d) 931, [2008] I.L.R. ¶1-4744, 67 C.C.L.I. (4th) 61 dismissed. Order No. 009/089/040 (3 pp.). Personal Property CO-OWNERSHIP Taxi plate was ordered sold and proceeds divided Parties purchased first half of taxi plate in first transaction and second half of plate in second transaction. Plate was transferred to father. Plate was registered in father's name un- til father transferred plate to daughter. Mother and father separated. Father continued to drive cab and had physical possession of plate. Father ar- gued mother and father each owned 50% of first half of plate and father owned 100% of second half of plate. Daugh- ter counterclaimed against fa- ther for declaration daughter owned 100% of plate, return of plate and accounting. Mother brought action against father and daughter claiming moth- er and daughter each owned 50%. Mother sought payment of lease money by father. First half of plate was purchased for $55,000. $40,000 of purchase price of first half of plate came from daughter and balance came from savings from father and mother. Father owned 13.6% of first half of plate, mother owned 13.6% and daughter owned 72.8%. Sec- ond half of plate was purchased for $60,000. Father, mother and daughter each contributed one third of purchase price for second half of plate. Father, mother and daughter each owned 33.3% of second half of plate. Amount of plate rental was $1,000 per month. Father was to pay mother 23.45% of rental payments from specified date and daughter 53.40% from specified date. Taxi plate was ordered sold and proceeds were to be divided with 23.45% to father, 23.45% to mother and 53.40% to daughter. Al-Ebadi v. Zahran (Mar. 13, 2009, Ont. S.C.J., Kershman J., File No. 03-CV-024987; 05-CV-032176) Order No. 009/079/276 (53 pp.). Real Property CERTIFICATE OF PENDING LITIGATION Applicant for certificate did www.lawtimesnews.com not establish reasonable claim to property Application by daughter of de- ceased for Certificate of Pend- ing Litigation against prop- erty registered to respondent. Respondent married deceased and they purchased property in joint tenancy 15 days before his death. Deceased sold the matri- monial home that had belonged to him and applicant's late mother to purchase new home with respondent. Applicant produced draft will of deceased from 2007 that left deceased's entire estate to her. Applicant argued that, given proximity to his death, deceased lacked ca- pacity to marry respondent and purchase home in joint tenan- cy. Respondent argued that she was the registered owner so the home was not part of the de- ceased's estate and the applicant had no claim to it. Application dismissed. Applicant had not satisfied the court that she had a reasonable claim to the prop- erty. Questions of deceased's will, capacity to marry and ac- quire property in joint tenancy with respondent were all sepa- rate and applicant's claim was speculative. Applicant had not even established herself as bene- ficiary as she had produced only draft of will and had been un- able to locate an original copy. Facts supported respondent's position; respondent was reg- istered owner of property and deceased had retained his long- time lawyer for home purchase. Furthermore, property was not unique and respondent had no intention of selling property. Desjardins v. Rossi (Feb. 26, Page 15 2009, Ont. S.C.J., DiTomaso J., File No. 08-0700-ES) Order No. 009/061/011 (7 pp.). Torts NEGLIGENCE It was not defendant's responsibility to clear sidewalk of snow and ice Case Image filler 12/20/06 11:23 AM Page 1 Motion by defendant store for summary dismissal of plaintiff's claim against it. Plaintiff com- menced claim against store, landlord of building store oper- ated in and municipality after he fell on icy sidewalk. Sidewalk was in front of defendant store, but was owned by municipality. Plaintiff argued that defendant had shovelled snow, creating a hazard when ice melted onto sidewalk. Plaintiff further ar- gued that water dripped from roof of building, creating ice on sidewalk. Motion allowed and action against defendant store dismissed. City was occupier of sidewalk and responsible for snow and ice clearance. Defen- dant did not relieve municipal- ity of its duty simply by clearing sidewalk to allow customer ac- cess to store. Defendant never assumed control of sidewalk. No evidence that snow piled by defendant created hazard and, if snow melted on sidewalk, it was still municipality's responsibility to clear sidewalk. Even if water dripped from building, land- lord was responsible for roof, not defendant. Baker v. Perth East (Township) (Feb. 24, 2009, Ont. 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