Law Times

Law times • OctOber 20, 2008 ing suggested unequal bargain- ing positions. Strong v. Strong Estate (June 27, 2008, Ont.S.C.J., Fragomeni J., File No. 93/06) Order No. 008/189/044 (14 pp.). Contracts PERFORMANCE AND BREACH Judgment in favour of bank in action for unpaid loan was upheld on appeal and comprehensible disclosure. Whether husband's misdescrip- tions were advertent, inadvertent, or combination of both, they were material, and compromised wife's ability to accurately assess her rights and options. Marriage contract set aside. Butty v. Butty (May 22, 2008, Ont. S.C.J. (Fam. Ct.), Pazaratz J., File No. D/1886/06) Order No. 008/149/041 (112 pp.). Injunctions Appeal from judgment in favour of bank in action for unpaid loan. Parties entered into loan agree- ment for $30,000. Defendants B. co-signed for defendants P.. All signatories were jointly and severally liable for loan. Loan went into default. P. filed assign- ment in bankruptcy. Default judgment was obtained against P.. At trial, bank was awarded $12,637 against defendants B.. Appeal dismissed. Per Stayshyn J.: B was entitled to contribu- tion or indemnification by P. in same amount as in judgment. Trial judge did not forget, ignore or misconceive evidence. Having found that B. was liable to bank, judge ought to have found that P. was liable on cross-claim. Per Cunningham A.C.J.S.C.: Trial judge properly assessed compet- ing evidence when making find- ings of credibility. Trial judge did not commit palpable and over- riding error. Toronto Dominion Bank v. Bukin (July 2, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Stay- shyn J. and dissenting - Kiteley J., File No. DC-07-391) Order No. 008/192/022 (27 pp.). Employment PUBLIC SERVICE Arbitrator's decision that school board required to pay six-week top up to union employees on pregnancy leaving following birth was unreasonable INTERLOCUTORY RELIEF Application for mandatory injunction enjoining respondent from Applicant was tenant in shopping mall. Lease agreement did not contain renewal rights. At time of expiration parties entered second lease for five years. Respondent argued applicant was month-to- month tenant after expiration of lease until second lease was signed. Second lease expired. No new written lease was entered into. Respondent terminated ten- ancy and entered new lease with third party. Applicant obtained ex parte order staying termina- tion and enjoining respondent from taking possession. Appli- cation for mandatory injunc- tion enjoining respondent from terminating lease was dismissed. Applicant's chance of success was not great. Applicant did not es- tablish irreparable harm. Balance of convenience weighed in favour of respondent. Ciprietti v. OPB Realty Inc. (July 4, 2008, Ont.S.C.J., Walters J., File No. 50338/08) Order No. 008/189/095 (11 pp.). terminating lease was dismissed Insurance Application for judicial review of decision by arbitrator deter- mining that collective agreement obliged board to pay six week top up to union employees on preg- nancy leaving following birth. Union represented educational support staff who were employed for ten months of year and paid hourly rate. Arbitrator found that employee did not have to be working at time of child in order to qualify for top up pay. Applica- tion granted. Award of arbitrator was quashed. Decision of arbitra- tor was not within range of rea- sonable outcomes on language of collective agreement, and was therefore unreasonable. Greater Essex (County) District School Board v. O.S.S.T.F. District 9 (July 4, 2008, Ont. Div. Ct., Jennings, Kiteley JJ. and dissent- ing - Swinton J., File No. 311/07) Order No. 008/192/053 (9 pp.). Family Law DOMESTIC CONTRACTS Marriage contract set aside Husband sought to uphold mar- riage contract to significantly limit any equalization obligation. Wife failed to establish that she signed contract under duress. Wife knew, in very general terms, that document was intended entirely to protect husband, but signed it anyway. However, there was failure to make full, accurate Accident occurred in New York State involving bus and tractor/ trailer combination. Bus was reg- istered in Ontario. Tractor was registered in Pennsylvania. Trail- er was registered in Maine. Pas- sengers on bus claimed no-fault statutory accident benefits from applicant. Applicant sought ap- pointment of arbitrator to re- solve claim for reimbursement from insurer of tractor/trail- er. Application was dismissed. Section 275 of Insurance Act (Ont.), did not apply. Gore Mutual Insurance Co. v. John Deere Insurance Co. (July 3, 2008, Ont.S.C.J., Hoy J., File No. 08-CV-351851PD3) Order No. 008/189/086 (5 pp.). AUTOMOBILE INSURANCE Application for appointment of arbitrator to resolve claim was dismissed Action by insured for relief as- sociated with rejection of his ap- plication for disability benefits. Plaintiff entered into policy of accident and sickness insurance with insurer. Plaintiff was dis- abled as result of acute case of meningitis and was disabled from working. Plaintiff 's application for long-term disability benefits was rejected on basis that insured had misrepresented medical con- dition when he completed initial questionnaire. Action dismissed. Policy was declared void. Plain- tiff did not disclose all material facts in his application. Elements DISABILITY INSURANCE Policy declared void where plaintiff did not disclose all material facts in application CASELAW of misrepresentation were within plaintiff's knowledge. Insurer conducted fair and balanced in- vestigation and assessment of risk. Insurer relied on answers to questions on application. Fernandes v. RBC Life Insurance Co. (July 8, 2008, Ont.S.C.J., Chapnik J., File No. 04-CV- 275519CM3) Order No. 008/192/069 (13 pp.). Landlord And Tenant COVENANTS No obligation on tenant to share costs of roof replacement or repairs Application by landlord for or- der determining rights in rela- tion to tenant. Tenant entered into lease agreement with then landlord. Landlord purchased building and tenant exercised its right for renewal. Alleged cost of roof work done to building was $58,331.80. Tenant refused to share in proportionate cost of roof replacement. Application dismissed. There was no obliga- tion on part of tenant to share in costs of roof replacement or repairs. Lease was interpreted as commercial agreement in one piece. Although lease on its face appeared to be carefree net lease, provision of lease was exception to overall intent. 1645111 Ontario Ltd. v. 1169136 Ontario Inc. (July 7, 2008, Ont.S.C.J., DiTomaso J., File No. 07-1411) Order No. 008/192/034 (7 pp.). RESIDENTIAL TENANCIES Landlord's application was not application for arrears of rent Building Official (July 3, 2008, Ont.S.C.J., Harris J., File No. 07- 31501) Order No. 008/189/106 (22 pp.). Road Transport Appeal from tribunal decision ordering director to carry out his proposal to revoke motor ve- hicle inspection station licence of corporate applicant and mo- tor vehicle inspection license of mechanic. Appeal dismissed. Tribunal did not commit error by improperly placing burden of proof on licensee. Tribunal's deci- sion and remedy was reasonable. There was evidence that signifi- cant number of certificates were dated when licensee was on vaca- tion and that licensee admitted were signed by mechanic without authority to do so. Best Deal Motor Collision Centre Inc. v. Ontario (Director of Ve- hicle Inspection Standards) (June 25, 2008, Ont. Div. Ct., Jen- nings, Molloy and Swinton JJ., File No. 256/07) Order No. 008/189/089 (5 pp.). LICENCES Tribunal did not improperly place burden of proof on licensee FEDERAL COURT Admiralty Tenant had subsidized rental unit. Tribunal stayed landlord's application to evict tenant. Tri- bunal found tenant's breach of settlement was stayed by Bankruptcy and Insolvency Act (Can.). Tribunal found landlord's request to re-open original appli- cation based on tenant's material misrepresentation of income was stayed by Act. Landlord's appeal was allowed. Landlord's applica- tion did not seek payment of ar- rears and order for termination and eviction in same proceeding. Tribunal erred in law in finding landlord's application was appli- cation for arrears of rent. Tribu- nal erred in finding landlord's re- quest to re-open was application for arrears of rent. Peel Housing Corp. v. Siewnarine (June 27, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Car- nwath and MacDougall JJ., File No. DC-06-009800) Order No. 008/189/042 (8 pp.). Planning BUILDING PERMIT Decision that garage was addition permitted under Building Code Act, 1992 (Ont.) was reasonable Plaintiff brought action for loss overboard of most of shipment of logs from barge. Plaintiff was indemnified by plaintiff's marine underwriter. Logs were carried CARRIAGE OF GOODS Cargo not "goods" as defined in Hague-Visby Rules PAGE 15 on deck. No bill of lading was is- sued. Contract of carriage was not governed by Hague-Visby Rules. Cargo was not "goods" as defined in Hague-Visby Rules. Entire car- go was carried on deck and was covered by on deck bill of lading. Waiver of subrogation in favour of defendant in plaintiff's insur- ance policy was not rendered null and void by Hague-Visby Rules. Defendants were entitled to rely on waiver of insurance clause. Timberwest Forest Corp. v. Pacific Link Ocean Services Corp. (June 25, 2008, F.C., Harrington J., File No. T-1999-04) Order No. 008/191/020 (34 pp.). Social Welfare Applicant obtained Old Age Security ("OAS") pension. After residency review HRSDC de- termined applicant was entitled to partial rather than full OAS pension. Applicant was required to repay benefits overpayment. Appeal was rejected. Tribunal concluded applicant was not resi- dent in Canada during applicable years. Application for judicial review was allowed. Decision was unreasonable. Reasons of Tribu- nal lacked justification, transpar- ency and intelligibility. Tribunal failed to carry out proper analy- sis. Tribunal relied on concept of "intention" regarding Florida. Tribunal failed to refer to evidence central to issue. Kiefer v. Canada (Attorney Gener- al) (June 23, 2008, F.C., Layden- Stevenson J., File No. T-1734- 07) Order No. 008/191/025 (28 pp.). OLD AGE SECURITY Tribunal's reasons lacked justification, transparency and intelligibility LT Obtain Copies of Judgments to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Application for order overturn- ing issuance of building permit. Applicant and respondent were next door neighbours. Respon- dents wanted to build three-car garage plus living space on their property. Applicant opposed con- struction because it would case shadow over his pool and back- yard. City issued building permit. Application dismissed. Decision that structure was addition per- mitted under s. 9(1) of Building Code Act, 1992 (Ont.), was rea- sonable and fell within range of acceptable outcomes. Walsh v. 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