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lAw Times • April 27, 2009 arose only after final adjudica- tion of claim had been made. Applicant entered into agree- ment with Law Society of Upper Canada to indemnify and save harmless Law Society member from and against any claims aris- ing under title insurance policies except for member's gross negli- gence or wilful misconduct. S.Z. and Z.Z. sued lawyer, respondent E.Z. and law firm for negligence regarding real estate purchase. Respondents called upon appli- cant to honour indemnity agree- ment and cover on-going costs of defending Z. action but applicant refused. Application dismissed. Indemnity agreement imposed two obligations on applicant, to indemnify and to save harmless. Contractual obligation to save harmless was broader than that of indemnification. Indemnity agreement required applicant to pay for Law Society member's on-going costs of defending claim that fell within coverage of agree- ment. Such interpretation was consistent with plain meaning of language, case law, business sense and reasonable expectations of parties. Applicant's obligation in- cluded not only paying any dam- ages for which member might become liable but also covering on-going costs incurred in de- fending such claims. Indemnity agreement required applicant to fund, on on-going basis, reason- able defence costs of Law Society member against whom claim was made arising under title insur- ance policy issued by applicant, except in cases of member's gross negligence or wilful misconduct. Z. claim against respondents fell within obligation to indemnify and save harmless contained in indemnity agreement and trig- gered applicant's duty to pay re- spondents their on-going costs of defending claim. Stewart Title Guarantee Co. v. Zeppieri (Jan. 27, 2009, Ont. S.C.J., Brown J., File No. 08- CV-00363826-0000) Order No. 009/029/032 (15 pp.). LIMITATION PERIODS Action arising from motor vehicle accident was statute-barred from date of accident. Had plain- tiff met the original deadline, he would have had far more time to commence his action. This was not an instance of the insurer lur- ing the plaintiff into expecting a settlement in order to allow the time to run out. Plaintiff pro- vided no evidence to support his arguments. 12955030 Ontario Inc. v. Royal SunAlliance Insurance Co. of Canada (Jan. 12, 2009, Ont. S.C.J., Kelly J., File No. 06-CV-320318PD2) Order No. 009/014/096 (7 pp.). Limitations MUNICIPALITIES Plaintiff should have benefit of broad and liberal interpretation of "reasonable excuse" in Motion by municipal defen- dant for order dismissing plain- tiff's action on basis that it was statute-barred pursuant to s. 44(10) of Municipal Act, 2001 (Ont.). Plaintiff alleged that on September 14, 2006 she had tripped over unevenness of mu- nicipal sidewalk and fractured her kneecap as result. Plaintiff attended hospital on day of fall and was diagnosed with frac- tured kneecap. Plaintiff's initial progress was good however by November 2006 plaintiff was not seeing improvement in knee and became concerned about possibility of permanent injury. Plaintiff relation to time limit in s. 44(10) of Municipal Act, 2001 (Ont.) Motion by defendant insurer for summary dismissal of plaintiff's action on basis limitation period had expired. Plaintiff was in- volved in motor vehicle accident on July 15, 2005 and, despite being sent Proof of Loss form twice by defendant, did not sub- mit form until well after the 90- day deadline under the Ontario Automobile Policy. Following an investigation, the defendant de- nied the plaintiff's claim on April 21, 2006. Plaintiff had retained lawyer even before claim was de- nied and commenced this action October 13, 2006. Insurance contract stipulated limitation period for commenc- ing action from "happening of the loss", as mandated by the Insurance Act (Ont.). Plaintiff ar- gued "happening of loss" did not occur until his claim had been denied. Motion granted and ac- tion dismissed with $4,909.19 in costs to defendant. Plaintiff did not submit proof of loss until af- ter the 90-day deadline, then sub- mitted a grossly excessive claim. Even from the time the claim was denied, the plaintiff still had two months to commence action in order to meet one-year period one-year accident and noted height dif- ferential at sidewalk. Plaintiff obtained legal advice, became aware of potential liability of municipality and immediately notified municipality of ac- cident by letter November 20, 2006. Municipality contended that as plaintiff had not given notice as required by s. 44(10) of Act plaintiff's action was stat- ute barred. Motion dismissed. Plaintiff should have benefit of broad and liberal interpretation of "reasonable excuse". Failure to comply with ten-day time- limit mandated by s. 44(10) is not bar to action where plaintiff establishes reasonable excuse for want or insufficiency of notice and municipality is not preju- diced in its defence. Plaintiff was not concerned until November that she was not responding to medical treatment as well as initially expected and it was not until she consulted legal coun- sel on November 20th that she became aware that she might have legal claim against mu- nicipality and that proceeding would be appropriate means to seek remedy. Here there was triable issue as to whether there was reasonable excuse for plain- tiff not complying with ten-day notice provision. Accordingly defendant's motion should be dismissed. Cena v. Oakville (Town) (Jan. 21, 2009, Ont. S.C.J., Murray J., File No. 2966/08) Order No. 009/028/049 (8 pp.). returned to scene of Professions retainer within meaning of s. 3 of Solicitors Act (Ont.) This was appeal of motion judge's BARRISTERS AND SOLICITORS No legitimate dispute as to CASELAW decision confirming assessment officer's report and certificate. Appellants provided legal ser- vices to respondents with re- spect to condominium project. Solicitors billed clients total of $451,045. Following assessment of solicitors' accounts pursuant to s. 3 of Solicitors Act (Ont.), assessment officer reduced to- tal bill to $179,250. Solicitors unsuccessfully opposed confir- mation of assessment officer's report and certificate. Motion judge held that retainer was not in dispute and that assessment officer properly evaluated value of services. Appeal allowed in part. Pursuant to s. 3 of Act, assessment officer had juris- diction only where solicitors' retainer was not in dispute. If dispute was solely with respect to quantum assessment officer retained jurisdiction to proceed with assessment. Dispute be- tween parties here was strictly one of quantum. There was no legitimate dispute as to retainer within meaning of s. 3 of Act. Dispute did not relate to exis- tence or terms of retainer but focused on proper allocation of hours worked between fixed fee portion and hourly rate portion of retainer, as well as appropri- ateness of work and amount charged within each category. Assessment officer properly re- lied on clients' expert's report to assist him in determining proper quantum and he did not use the report to guide him in ascertaining essential terms of retainer. However, there was no basis to suggest that solici- tors should have anticipated lien issues. Amount of assessed accounts was increased by $44,000 for lien work for total of $223,250. Paoletti v. Gibson (Jan. 27, 2009, Ont. C.A., Weiler, Simmons and Rouleau JJ.A., File No. C48615) Order No. 009/029/007 (12 pp.). Wills And Estates WILLS Handwritten will not valid Validity of handwritten will of mother in issue. Mother made will in 1994 naming sons R., W. and D. heirs and residual ben- eficiaries. Mother executed will in January 2004 changing W. with his daughter K. as benefi- ciary. Mother signed in March 2004 new will handwritten by W. and videotaped in presence of witnesses. Handwritten will left half of estate to K. and oth- er half to D. and declared void prior wills. Handwritten will not valid. Videotape evidence indicated that handwritten will met formal requisites. This raised legal presumption that mother as testator knew and approved of contents of will and had necessary testamen- tary capacity. Presumption was however rebutted by suspicious circumstances that evinced lack of testamentary capacity on part of mother and undue influence by W.. Mother made handwritten will excluding son R. completely without explana- tion. She was terminally ill and was on numerous medication at time. W. resided fulltime with mother and not in good terms with R.. Will was in W.'s hand- writing. W. was sole executor of www.lawtimesnews.com handwritten will. Under terms of will sole beneficiary was W. should D. or K. die. Tucker v. Tucker Estate (Jan. 21, 2009, Ont. S.C.J., Tucker J., File No. 4400/06) Order No. 009/028/071 (21 pp.). ONTARIO CRIMINAL CASES Sentence ASSAULT Court officer's sentence for assault against young person failed to adequately reflect denunciation and deterrence Crown appealed judgment vary- ing accused's sentence for as- sault from 90 days' intermittent imprisonment plus probation to conditional discharge with probation. Accused court officer became upset with behaviour of victim and other young per- sons while transporting them to court. Accused stopped vehicle suddenly, causing girls to fall. At court, accused pushed girls down stairs, hit victim's head into doorway and choked vic- tim. Accused colluded to falsify evidence about incident. Appeal allowed. Appeal judge erred in law in finding sentence outside appropriate range. Substituted sentence failed to adequately re- flect deterrence and denuncia- tion. Accused breached duty to public and duty to victim as pris- oner in his custody to take care for her safety. Abuse of trust and authority exacerbated by victim's age. Original sentence restored. PAGE 19 R. v. Byrne (Feb. 12, 2009, Ont. C.A., Rosenberg, Feldman and Cronk JJ.A., File No. C48762) Appeal from 78 W.C.B. (2d) 142 allowed. Order No. 009/048/041 (15 pp.). Appeal by the accused from her sentence for two counts of wel- fare fraud. Regarding count one she was convicted of collecting $69,462 in social assistance for misrepresenting herself as a single parent while she lived in a common law relationship. With respect to count two she was convicted of collecting a further $25,594 in social as- sistance without disclosing support payments she received from her common law spouse after their separation. Accused was sentenced to five months' incarceration and had to pay restitution of $90,127. She served the custodial portion of her sentence. Appeal allowed in part. Sentence was reduced because the conviction for the second count was set aside. Restitution order was reduced by $25,594. It was further re- duced for payments made dur- ing a 13-month period that the accused did not cohabit with her spouse, with the exception of support payable during a three-month period when there was an outstanding support or- der against the spouse. R. v. Toy (Feb. 12, 2009, Ont. C.A., Weiler, Moldaver and Rouleau JJ.A., File No. C48428) Order No. 009/057/152 (7 pp.). FRAUD AND FALSE PRETENCES Sentence for welfare fraud varied on appeal LT