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Law Times • march 30, 2009 J., File No. FS-005943-01) Order No. 009/007/013 (20 pp.). Injunctions Plaintiff brought action for breach of agreement of purchase and sale of property and assets used in busi- ness. Transaction closed. Plaintiff brought action three months after purchase claiming misrepresen- tations. Plaintiff did not make mortgage payments. Defendants brought counterclaim seeking funds under security agreement. Defendants brought motion for appointment of interim receiver and injunctive relief. Motion was allowed. There was serious issue to be tried. Defendants would suffer irreparable harm. Business would deteriorate if interim receiver were not in place to manage operation. Balance of convenience favoured defendants. Interim INTERLOCUTORY RELIEF Defendants entitled to injunctive relief in action for breach of business purchase agreement issued restraining plaintiff from entering property or interfering with operation of business. Interim receiver was to be appointed. Plain- tiff was not to destroy financial re- cords. injunction ity. Underwriters and banks were separate individually governed and autono- mous. Banks had no reasonable expectation that their subsidiaries would be treated as clients. No compelling reason was shown to preclude plaintiff's counsel from acting in this matter. McKenna v. Gammon Gold Inc. (Jan. 6, 2009, Ont. S.C.J., Lax J., File No. 08-CV-361436CP) Or- der No. 009/008/065 (8 pp.). legal entities that were Real Property 1754765 Ontario Inc. v. 2069380 Ontario Inc. (Dec. 17, 2008, Ont. S.C.J., Himel J., File No. CV-08-003555335) Order No. 008/358/091 (7 pp.). Partnership Motion by husband for declara- tion that effective date of dissolu- tion of partnership was September 2006. Husband and wife oper- ated horse breeding and boarding business on farm as partnership. Husband and wife separated and wife was permitted to run business until farm was sold. Farm was sold in September 2006. Order was made dissolving partnership as of April 2008 with horses to be sold at auction in May 2008. Motion dismissed. Partnership was consid- ered to have been dissolved in May 2008 when horses were sold. Farm was only one of business' assets. Horses were major asset of busi- ness so it would not have been just and equitable to wind up business until they were sold. Husband was consequently liable for some of expenses in caring for horses until they were sold. Boers v. Boers (Jan. 13, 2009, Ont. S.C.J., Arrell J., File No. D11336/05) Order No. 009/015/082 (9 pp.). DISSOLUTION Partnership was dissolved on date when major asset of business was sold Professions Motion by defendants for order removing plaintiff's counsel from record. Plaintiff brought proposed class proceeding against various defendants in connection with public share offering. Two defen- dants were underwriters that were subsidiaries of banks. Plaintiff's counsel were currently acting on behalf of those banks in unrelated matters. Motion dismissed. Plain- tiff's counsel did not have disquali- fying conflict of interest. Solicitors had not breached any contractual retainer or duty of confidential- BARRISTERS AND SOLICITORS No compelling reason to preclude plaintiff's counsel from acting Motion by plaintiff for certificate of pending litigation. Plaintiff sup- plied building materials and alleg- edly supplied labour to defendants for construction of home. Plaintiff was still owed about $61,763.80 after home was completed. Plain- tiff brought action against de- fendants for payment of amount owing and also included claim for unjust enrichment. Plaintiff never registered lien against property. Motion dismissed. Plaintiff failed to establish interest in property. Plaintiff's claim arose from simple contract for supply of materials and possibly labour. Claim based on unjust enrichment was not likely to succeed as contract could provide juristic reason for denying recovery. Remedy of constructive trust would therefore not be avail- able. In addition, damages would be appropriate remedy. Brouilette Building Supplies v. 1662877 Ontario Inc. (Jan. 13, 2009, Ont. S.C.J., Kane J., File No. CERTIFICATE OF PENDING LITIGATION Certificate of pending litigation refused where no interest in property established C10592/07) Order No. 009/014/126 (7 pp.). Application by property own- ers for order partitioning small island in accordance with prior agreement as to boundary lines. Property owners were three sib- lings who owned island as tenants in common. Property owners agreed to have island severed into three parts. Property owner E.K. proceeded with municipal sever- ance application. Parties' agree- ment proved to be based on er- roneous assumptions about shape of island and desirable shoreline. Parties eventually agreed upon different set of boundaries. E.K. completed municipal severance application to avoid throwing away costs but resulting bound- aries reflected initial agreement. Application granted. Severance was to be completed using bound- aries from initial agreement but second severance application was to be brought to give effect to sub- sequent agreement. While amend- ment was expected to be approved, boundaries from initial agreement were to remain in place if amend- ment was ultimately not approved. Severed parcels were to be ap- praised and parties were to engage in financial equalization process. Parties were to share all costs relat- ing to severance applications. Koch v. Koch (Dec. 4, 2008, Ont. S.C.J., van Rensberg J., File No. CV-08-1702-00) Order No. 008/345/077 (24 pp.). CO-OWNERSHIP Severance of island was to be completed using boundaries from initial agreement Sale Of Land CASELAW Application by vendor for forfei- ture of deposit and for damages for breach of contract. Purchaser paid $150,000 deposit when he agreed to purchase vendor's property. Agreement indicated purchaser would accept title subject to any registered restrictions. Purchaser paid additional $100,000 deposit when closing date was extended. Purchaser alleged vendor was not able to provide clear title due to restriction registered by munici- pality. Application granted in part. Vendor was awarded forfeiture of deposit but issue of damages was deferred pending further submis- sions. Vendor carried out proper tender on purchaser who then failed to complete transaction in accordance with agreement. Not only did purchaser agree to accept title subject to registered restric- tions, municipality had even of- fered to amend registered restric- tion. While there was no forfeiture clause in agreement, deposits were paid as term of contract to secure performance and not simply as payment on account. River Oaks Convenience Plaza Inc. v. Al-Qauasmi (Jan. 13, 2009, Ont. S.C.J., Daley J., File No. CV-08-4246-00) Order No. 009/014/106 (8 pp.). DEPOSIT Vendor entitled to forfeiture of deposit Torts Plaintiff slipped and fell in laneway on ice concealed by snow. Incident occurred nine years ago. Defendant received notice of claim four days after period required had expired. Plaintiff sent notice by regular mail rather than by personal service or registered mail. Claim was not statute barred. Prejudice suffered by defendant were outweighed by injustice to plaintiff if claim were to be barred in light of fact plaintiff attempted to provided defendant with timely notice. Particular seg- ment of laneway became in part pedestrian walkway and should have received same attention as sidewalk designed for pedestrian use. Segment of laneway should have been foot patrolled. City in failing to employ resources already in place showed it was grossly negligent in relation to pedestrian traffic using segment of laneway and to plaintiff. Judgment went to plaintiff for $33,948. Guy v. Toronto (City) (Dec. 15, 2008, Ont. S.C.J., Stong J., File No. 52369/99) Order No. 008/352/151 (15 pp.). NEGLIGENCE City found grossly negligent in slip and fall action Wills And Estates ADMINISTRATION Court had discretion to appoint estate trustee under s. 29 of Estates Act (Ont.) based on facts of case J. had died intestate. Respondent was living in conjugal relationship with J. at time of J.'s death. Re- spondent and applicants had both applied to be estate trustees. Appli- cants appointed as estate trustees. As respondent was living in con- jugal relationship with J. she was entitled to either apply as estate trustee or advance claim as depen- dent under dependent's relief pro- visions of Succession Law Reform Act (Ont.). There was little or no jurisprudence providing direction regarding issue of priority of per- www.lawtimesnews.com ESTATE sons entitled to apply to be estate trustees under s. 29 of Estates Act (Ont.). Court determined that no priority existed between classes of individuals entitled to apply. Court maintained discretion to appoint estate trustee based upon facts of case. Here, applicants were appro- priate persons to be appointed. Mohammed v. Heera (Jan. 14, 2009, Ont. S.C.J., Warkentin J., File No. E-08-0108) Order No. 009/019/053 (6 pp.). ONTARIO CRIMINAL CASES Appeal Accused was convicted of hostage taking. Crown was granted appli- cation to have accused assessed in order to obtain evidence for trial. An extension of time for filing as- sessment was granted but it was not completed until two weeks after deadline. Application was filed to determine whether late filing of report was prejudicial to accused. There was no prejudice to accused with late report. Ac- cused was serving sentences and had many years left. It was per- missible to extend time for filing assessment report. Notwithstand- ing amendments to Criminal Code, court can still use discre- tion to extend deadlines. R. v. Acoby (Jan. 14, 2009, Ont. S.C.J., Taylor J., File No. CNJ6200) Order No. PROCEDURE Notwithstanding amendments to Criminal Code, court could still extend deadlines PAGE 15 009/020/160 (5 pp.). Motor Vehicles PROVINCIAL REGULATION Accused was refused leave to appeal convictions under Highway Traffic Act (Ont.) and Compulsory Automobile Insurance Act (Ont.) Motion for leave to appeal by ac- cused from numerous convic- tions under the Highway Traffic Act, R.S.O. 1990, c. H.8, and the Compulsory Automobile Insur- ance Act, R.S.O. 1990, c. C.25. Charges arose out of collision be- tween vehicle of accused and train. Appeal court judge indicated he did not have jurisdiction to deal with Charter matters. Appeal court judge concluded that accused failed to demonstrate any error in law or principle. Leave to appeal dismissed. Appeal court judge erred in stating that he did not have jurisdiction to deal with Charter arguments. Ac- cused did not make s. 11(b) Charter argument at trial. Thorough reasons of justice of the peace listed numer- ous adjournments made at request of accused and that ground of ap- peal had no arguable chance of suc- cess. Self-represented accused was afforded wide degree of latitude and assistance with conduct of trial and his fair trial rights were respected. Protraction of trial due to inexperi- ence and lack of legal training by accused. Accused not legally com- pelled to testify and he did not tes- tify. Accused not tried or convicted for same offences within meaning of s. 11(h) of Charter. Not essential to public interest or for due adminis- tration of justice that leave to appeal be granted. R. v. Peric (Dec. 5, 2008, Ont. C.A., Weiler J.A. in Chambers, File No. M36841) Order No. 008/344/122 (3 pp.). LT