Law Times

January 11, 2016

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Law Times • January 11, 2016 Page 15 CASELAW rial facts in sufficient detail that set out what overt act each indi- vidual defendant committed that constituted conspiracy. Damage was necessary element to con- spiracy. It was not plain and obvi- ous damage claim for conspiracy was in substance same damage suffered by virtue of another tort could not succeed. While two awards could not be made, it was not clear only damage properly associated with conspiracy claim must be damage that was com- pletely unrelated to any concur- rent tort. Basis of tort and con- spiracy claims were not identical so question of merger was best le to be decided on full record at trial. It was not plain and obvi- ous that conspiracy claim must necessarily be merged. State Farm Mutual Auto- mobile Insurance Co. v. As- sessment Direct Inc. (Jan. 29, 2014, Ont. S.C.J., Penny J., File No. Toronto CV-13-474005) 259 A.C.W.S. (3d) 450. Trial PLACE OF TRIAL Factors favoured transfer of action from Brampton to com- mercial list in Toronto Plaintiff had been president and CEO of defendant U. U had been placed in receivership. Action al- leged oppressive conduct, defa- mation and copyright infringe- ment by defendant C against plaintiff and U while U still car- ried on business and during re- ceivership proceedings. Plaintiffs claimed that C's conduct toward U resulted in reduction in his compensation and reputation. Defendant brought motion for order transferring action from Brampton to commercial list of Superior Court of Toronto. Motion granted. Plaintiff and U carried on business out of To- ronto premises and receivership proceedings took place before Toronto court. ere was no evidence damages flowing from alleged conduct were sustained in Brampton. Subject matter of proceedings related to relation- ship between defendants and re- ceivership proceedings and they all took place in Toronto. Crimi- nal charges had been brought against plaintiff in Toronto in relation to operation of U and receivership proceedings. ere was no evidence of any interest specifically connected with local Brampton community that made it more suitable venue. Receiver was located in Toronto. Litiga- tion would require application of statutes that made action suit- able for commercial list. Judges in commercial list had extensive experience in considering issues. Toronto judge was available. Plaintiff 's access to justice would not be impaired by transfer. Fac- tors favoured transfer of action to commercial list in Toronto. Kalair v. Central 1 Credit Union (Oct. 28, 2015, Ont. S.C.J., Daley R.S.J., File No. CV-14-5129- 00) 259 A.C.W.S. (3d) 457. Corporations SALE OF ASSETS Formula and price assigned to inventory by plaintiff were fair and reasonable Plaintiff and defendants entered into agreement in which plaintiff would sell its chattels and inven- tory to defendants. Parties also entered into non-competition agreement whereby plaintiff was not to open retail store in area of Scarborough for period of two years. Plaintiff was paid agreed amount of $60,000 for chattels but was not paid for inventory. Plaintiff commenced action for total cost of inventory in amount of $132,827.88. Defendants took issue with plaintiff 's assess- ment and submitted total cost of inventory was $71,527. ey argued any amounts owed to plaintiff should be set-off against their loss of business and income caused by plaintiff 's breach of non-competition agreement. Ac- tion allowed. Section 21 of On- tario Business Corporations Act did not apply. It was intention of parties that personal defendant would only be bound by contract until new corporation came into existence. Corporation adopted contract and personal defendant was not liable for any breach. Contract clearly stated purchase was for chattels and inventory. Contract stated cost of inventory shall be at invoice price. Formula and price assigned to inventory by plaintiff were fair and reason- able. Court fully accepted inven- tory count conducted by plain- tiff. Non-competition agreement was not variance of original contract but was separate agree- ment. ere was no fresh consid- eration for entering into it and thus it was not valid. Plaintiff was granted judgment against cor- porate defendant in amount of $132,827.88. Jonathan's - Aluminum & Steel Supply Inc. v. Retail Al- loy Metal & Plastic Plus Ltd. (Oct. 20, 2015, Ont. S.C.J., K.P. Wright J., File No. CV-12- 462259) 259 A.C.W.S. (3d) 471. Family Law CUSTODY Mother in contraven- tion of final order by mov- ing children too far away Married in 2008 and separated in early 2011, they had two chil- dren, born in 2009 and 2010. Final order granted on consent awarded sole custody of children to mother with specified access to father. Mother brought mo- tion to change final order with respect to access. She wanted father to have bi-weekly super- vised access. Father brought motion for order mother enroll children in school in Barrie and she comply with order for access. He said mother had moved with children from Barrie to Fenelon Falls in contravention of final or- der. She had enrolled children in school in Fenelon Falls. Mother said father was in breach of fi- nal order because he attended at children's school and threatened not to return children to school. Motion by mother adjourned. Motion by father granted in part. Mother was in contravention of final order because she had moved children more than 80 km from Barrie. Court rejected measurement taken by mother that distance be measured in straight line over lake. It was in- tended measurement was 80 km by vehicle. Actions of mother could not be condoned, notwith- standing that children would have to move again. Applicant was to comply with final order and return residence of children to less 80 km from Barrie. Case conference was to be held imme- diately on issues of mother's mo- tion to change. Degan v. Degan (Oct. 19, 2015, Ont. S.C.J., P. Sutherland J., File No. FC-11-377-00) 259 A.C.W.S. (3d) 516. GENERAL Father not permitted to question mother's father and boyfriend Motion by father in high-conflict family litigation to require two non-parties, the mother's father and mother's boyfriend, to ap- pear for questioning. Non-parties were served and did not respond, but mother defended motion. Motion dismissed. Most of the questions father wanted to ask non-parties were not relevant, or information could be obtained from other sources. Questions of the mother's father about is- sues such as about his business were not relevant, and questions such as about mother's relation- ship should be put to her. Father wanted to question mother's father about incident when he picked up vehicle. Mother had given undertaking to check with her father about whether he was there, but this did not necessitate oral questioning. Mother's father to provide affidavit confirming whether he was present when the vehicle was picked up by the father and, if so, his recollec- tion of the event. Father wanted to question the boyfriend, who was a police officer, about a po- lice investigation of an accident the father was involved in and the father's arrest. It was clear the father wanted to use this as dis- covery for his planned law suit against police. Possession of the matrimonial home was no longer at issue so where boyfriend lived was of questionable relevance and already asked of the mother, plus the father had surveillance infor- mation, and questions about the boyfriend's smoking and drinking habits were a fishing expedition. Campbell v. Wentzell (Oct. 2, 2015, Ont. S.C.J., Victor Mi- trow J., File No. FD1787/13) 259 A.C.W.S. (3d) 441. Limitations TORT Action arising from environ- mental damage to property dismissed as statute barred Plaintiff 's action alleged defen- dants were responsible for envi- ronmental contamination of soil and groundwater of its property with petroleum hydrocarbons and related chemicals. Plaintiff alleged source of those chemicals was from property of defendant DDP, which abutted plaintiff 's property. Other defendants were former owners of DDP's prop- erty, which had been used as gas station for many years. When gas station was decommissioned property was remediated in 2004, during which substantial amount of contaminated soil was removed. Additional test- ing in 2005 confirmed that any remaining contaminants met applicable Ministry of the En- vironment standards at time. Plaintiff purchased property in 2012. In closing purchase, plain- tiff waived condition concerning environmental risks. Plaintiff commenced its action in April 2014. Defendants moved for summary judgment dismissing plaintiff 's action due to expira- tion of limitation period prior to commencement of action. Mo- tion granted. Plaintiff 's claims were readily available and dis- coverable well before April 2012. Reports obtained by plaintiff indicated that contamination is- sues attached to its property were concern even at time of initial of- fer to purchase. By March 2012, when plaintiff waived environ- mental clause, they had become aware of sufficient material facts to form basis of action. ere was no evidence of ongoing damages sufficient to support separate cause of action. Limitation pe- riod had expired and plaintiff 's action was dismissed. Crombie Property Hold- ings Ltd. v. McColl-Frontenac Inc. (Oct. 22, 2015, Ont. S.C.J., K.P. Wright J., File No. CV-14- 503035) 259 A.C.W.S. (3d) 561. Professions PHYSICIANS AND SURGEONS Any delay in mobilization of injured hand did not cause or contribute in any material way to plaintiff 's current impairment While exercising friend's dog, plaintiff was yanked forward and fell on her le hand. Plaintiff sus- tained three badly broken fingers and was treated at hospital. Plain- tiff attended fracture clinic and defendant doctor applied new cast. Plaintiff obtained referral to hand specialist. Hand specialist claimed appointment was set up for plaintiff and doctor asserted his office told plaintiff about ap- pointment. Plaintiff asserted no one told her of appointment and it was not until later that plain- tiff saw hand specialist. Plaintiff asserted because of delay she was le in cast longer than she should have been, which resulted in poorer outcome for her hand. Action dismissed. Plaintiff was properly advised of her appoint- ment but failed to attend. Plain- tiff alone was responsible for missed appointment and ensu- ing delay of treatment. Plaintiff was solely responsible for any damage that resulted from that delay. Phone records reflected se- quence of communications that accorded with referral procedure described by witnesses. ere was no basis in law or reason to have expected office of hand specialist to follow up with no show. Defendants met standard of care. Outcome was largely determined at time of accident and outcome was reinforced by plaintiff 's inability to fully and continually participate in reha- bilitation. Any delay in mobiliza- tion did not cause or contribute in any material way to plaintiff 's current impairment. Plaintiff did not suffer any income loss as re- sult of injury. Parasiliti v. Beatty (Oct. 8, 2015, Ont. S.C.J., Baltman J., File No. CV-10-3223-00) 259 A.C.W.S. (3d) 579. ONTARIO CRIMNAL CASES Defences INSANITY Accused suffered from major mental disorder but knew act of killing was morally wrong Accused stabbed two de- ceased women and attempted suicide as part of ritualistic sui- cide pact formed between three parties. Deceased and accused had formed and executed plan to obtain supplies and hotel lodging to carry out pact. Accused made statement to police following deaths describing pact and his role in killings of deceased. Ac- cused claimed he was not crimi- nally responsible on account of mental disorder for unlawful killings. Accused found crimi- nally responsible and convic- tions registered for two counts of first degree murder. Accused had established he suffered from ma- jor mental disorder likely to be schizophrenia at time of killings. Cogent evidence of careful plan specifically designed to cause death belied assertion accused unable to appreciate nature and quality of act of killing deceased. Accused knew act was morally wrong in eyes of community as steps taken to conceal pact and accused admitted act was legally wrong. Appropriate to enter con- victions for first degree murder given evidence of careful plan- ning and deliberation to inten- tionally kill deceased. R. v. Dobson (Jan. 15, 2015, Ont. S.C.J., D. Watt J., File No. Barrie 13-165) 125 W.C.B. (2d) 283.

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