Law Times

PAGE 14 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. ONTARIO CIVIL CASES Contracts MISTAKE Ability of defendant to fulfil Action by homeowners for spe- cific performance, non-pecuniary damages and punitive/aggravated damages. In 2004, parties entered agreement under which defendant developer agreed to provide sani- tary sewer, storm sewer and gas connection five feet within bound- ary line of plaintiff ' contract terms dependent on plaintiff taking action plaintiff agreed to allow defendant access to property for that purpose. Defendant professed honest belief it could fulfill contract but learned Enbridge gas would not install such a dead-end tail from the live main gas line. Plaintiff would have to install furnace and apply for gas hook-up with Enbridge. Plaintiff did not provide any reasonable explanation for why she refused to apply to Enbridge for gas service. Agreement did not require defen- dant to install furnace, apply for gas hook-up on plaintiff ' s property and a line out to the main from the home. Defendant fulfilled other contract terms. Action dismissed. Ability of defendant to fulfill contract terms was dependent on plaintiff taking action. Plaintiff ' for gas hook-up was impediment to defendant being able to fulfill contract terms. Defendant could do no more than provide five foot length of pipe. Gas line was offered under mistake of fact. It would be futile to order specific performance. Plaintiff ' s failure to apply for gas service was implied contract term she was capable of fulfilling. Plaintiff contributed to breach of contract and was not entitled to damages. Gas line term of contract set aside. Ahmadi v. Fernbrook Homes (Block 18 Gulf ) Ltd. s co-operation in applying 2011, Ont. S.C.J., McCarthy J., File No. CV-08-089930-00) 210 A.C.W.S. (3d) 906 (6 pp.). (Dec. 14, s behalf or run Damages PERSONAL INJURIES Jury' Plaintiff was injured in motor vehicle accident. Jury awarded zero dollars for loss of future income. Uncontradicted evidence of defendant' devoid of evidentiary support s award of zero damages plaintiff 's loss of future income s experts related to resulting from injuries suffered in motor vehicle accident. Plaintiff brought motion asking judge to refrain from entering judgment of zero dollars as determined by jury for loss of future income and for judge to assess damages. Jury' award of zero damages for loss of future income was devoid of any evidentiary support even if jury discounted plaintiff ' s completely as uncontradicted evidence of defendant confirmed plaintiff would suffer some loss of future income. There was no proper foundation in law for jury' s evidence s award. By ignoring uncon- tradicted defence evidence, jury's decision failed to follow direc- tive set out in case law. Plaintiff was awarded damages for loss of future income as result of injuries suffered in accident of $117,200. McLean v. Knox (Dec. 8, 2011, Ont. 07-CV-037111) 210 A.C.W.S. (3d) 919 (19 pp.). S.C.J., Smith J., File No. Debtor and Creditor EXECUTION Unregistered declaration Applicant held lands in trust and was prevented from conveying lands to arm' of trust ranked in priority over writ of execution chaser because of writ of execu- tion registered against applicant' name by respondent. Declaration of trust was not registered. Writ was ordered temporarily lifted and transaction be permitted to close on basis of hold-back in amount of writ until issue could be decided on merits. Funds remained in trust account. Applicant sought declara- tion that writ of execution against s length bona fide pur- s These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. applicant's name did not attach to lands that were held by applicant in trust and that funds in trust account be disbursed as directed by vendors. Applicant sought to strike out affidavit of individual on grounds respondent refused to produce individual for cross- examination in accordance with order. Affidavit was not struck out. Little weight was attached to affi- davit. Individual had no personal knowledge of declaration of trust. Unregistered declaration of trust ranked in priority over writ of exe- cution. Applicant executed valid declaration of trust. Land was held in trust. Holding of trust prop- erties was not made with intent to defeat, hinder, delay or defraud respondent but rather was for sev- erance and Planning Act (Ont.), purposes. Declaration of trust was not manufactured document. Moneys held in trust belonged to two numbered companies and respective shareholders and not applicant. Applicant was not share- holder of either company. Section 9(1) of Execution Act (Ont.) did not permit seizure and sale of real property held by applicant in trust. There was no juridical reason why moneys held in trust should remain in trust account. Money was to be dispersed as directed by vendors of trust lands. Michaud v. Coreslab Structures (Ont) Inc. (Jan. 13, 2012, Ont. S.C.J., DiTomaso J., File No. 11-1021) 210 A.C.W.S. (3d) 920 (13 pp.). Planning OFFICIAL PLAN Board found town' Town enacted by-law adopting amendment to its official plan ("OPA 73"). OPA 73 covered broad area in Town, including lands owned by individual. OPA 73 was approved by Council of Regional Municipality of York. Individual filed notice of appeal of OPA 73, limited to one dis- crete parcel (6.9 hectares) of his property not guided by sound planning principles s proposals for land located in northeast cor- ner of lands subject to OPA 73 ("property"). Individual was one of number of appeals filed in connection with OPA 73. Only individual appeal was allowed by board. Board found that prop- erty was separated from rest of OPA 73 lands by watershed which had been designated as environ- mentally protected area. Board concluded that property should be designated for residential, not business, uses. Provision of access and services to property from within town, as originally con- templated by OPA 73, was also rejected. Board concluded that, to avoid road crossings of envi- ronmentally protected watershed, property should take access and servicing only from north, being lands already designated for resi- dential uses but located within adjacent town. Town' for leave to appeal was refused. Town' s application to consider evidence put before it by town at hearing to effect that property need not and should not be made reliant, for access and servicing, on another municipal- ity, did not involve any identi- fiable error of law. Board made ample reference throughout deci- sion to evidence which supported ultimate disposition of individual appeal. Town failed to show that there was any denial of natural justice or, s allegation that board failed error of law whatsoever. Finally, there was no issue of law raised by Growth Plan compliance argu- ment. Board' for that matter, any reflected significant deference to town' s decision, in fact, town was almost wholly success- ful in defence of OPA 73 at this hearing. Board found, however, that property created "unique situation". There was evidence upon which board could reason- ably reach that conclusion. Board found, contrary to town' s and region's position, since that town's proposals for property to board's disposition of that issue. Aurora (Town) v. Sikura (Dec. 22, 2011, Ont. S.C.J. (Div. Ct.), Penny J., File No. 435/11) Leave to appeal from 69 O.M.B.R. 341 was refused. 210 A.C.W.S. (3d) 1038 (8 pp.). Sale of Land Father had three children. Father purchased property and regis- tered property in first child' RIGHTS OF FIRST REFUSAL Agreement created interest in property that was protected from encroachment for financial planning reasons. Second child bought property in 1987, moved into property and spent $250,000 on renovations and improvements. Agreement contained right to first refusal on mandatory 30 days' notice by second child of intent to sell property and provided for equal distribution among three siblings of net proceeds of any future sale of property. First child agreed to sale to second child only because he agreed to terms of agreement. Addendum to agreement pro- vided second child' s name 50% interest in property as joint tenant with second child. Second child and spouse applied to strike out agreement from land regis- try. Application was dismissed. Agreement s spouse with property that was protected from encroachment by virtue of agree- ment. Protection continued after death for second child and spouse and interests of anyone inherit- ing property remained subject to terms of agreement. Addendum to agreement was not void for failure of consideration. Parties intend- ed to bind second child' created interest s wishes, in OPA 73, were not guided by sound planning principles. That was for board to decide. No error of law could be found with respect to agreement and consideration was exchanged between parties to undertaking. Agreement was properly registered on title and there was no reason to interfere with it. Benzie v. Kunin (Feb. 9, 2012, Ont. S.C.J., McCombs J., File No. CV-10-398705) 210 A.C.W.S. (3d) 1053 (6 pp.). s spouse April 23, 2012 • lAw Times in Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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