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Page 14 May 2, 2016 • Law TiMes www.lawtimesnews.com ing granted 60-day indulgence. There was no reason to believe plaintiff ever expected to meet deadline. No explanation was offered for why present motion was not brought sooner. Preju - dice was inferred from passage of time. Defendant's right to fair hearing had been impaired by passage of time through inaction of plaintiff. To extent that delay was entirely fault of plaintiff 's lawyer, plaintiff might have rem - edy against him. Anything less that stay of proceedings would bring administration of justice into disrepute. Jadid v. Toronto Transit Commission (Feb. 17, 2016, Ont. S.C.J., S.F. Dunphy J., 08-CV- 350370) 263 A.C.W.S. (3d) 915. Constitutional Law CHARTER OF RIGHTS Applicant was granted constitu- tional exemption from prohibition against physician-assisted death Applicant, 81 years old with ad- vanced-stage aggressive lympho- ma, granted declaration that he satisfied criteria for constitution- al exemption from prohibition against physician-assisted death. He was also granted declaration that circumstances of his death would not require notification to coroner under Coroners Act (Ont.). Applicant established he was competent adult person, had grievous and irremediable medi - cal condition that was causing him to endure intolerable suffer- ing which could not be alleviated by any treatment and he clearly consented to termination of life. Coroner need not be notified of applicant's death because death would not be from a cause other than by disease nor would his death be circumstance that re - quired investigation under Act. B. (A.) v. Canada (Attorney General) (Mar. 17, 2016, Ont. S.C.J., Perell J., CV-16-00AD001- 00ES) 263 A.C.W.S. (3d) 919. Contracts INTERPRETATION Golf day at particular golf course was fundamental term of event package contract Defendant was company that ar- ranged events for clients. Plaintiff was company that hired defen- dant to arrange two events as part of same package. Main event was trip to 2014 Masters golf tourna- ment for 10 people. Other event was golf day for three people in November 2013 at particular pri- vate golf course where Masters tournament was being held. Total contract price was US$140,420 and plaintiff paid deposits total - ling US$70,210. Defendant failed to arrange golf day in November 2013. Parties agreed to defer same package until following year, and no further payments were due until after golf day. Defendant did not make progress schedul - ing golf day and proposed three alternatives. Plaintiff demanded return of deposits if golf day could not proceed by Feb. 8, 2015. Defendant persisted with its three alternatives and refused to return deposits. Plaintiff com- menced action against defendant for return of deposits. Plaintiff brought motion for summary judgment. Motion granted; action allowed. Plaintiff was awarded Canadian equivalent of US$70,210. There were no genu - ine issues requiring trial. Golf day at particular golf course rath- er than any golf course in same city was term of original contract from outset. Golf day at particu- lar golf course was fundamental term of original contract and amended contract. Defendant had guaranteed it could provide golf day at this particular golf course. Plaintiff could have gone to other event arrangers for golf day at other courses. Defendant breached original contract by failing to schedule golf day in No - vember 2013. Defendant's obliga- tion to schedule golf day was not conditional on plaintiff provid- ing particulars of proposed golf- ers as alleged. Amended contract was valid since defendant's repre- sentative had apparent authority to agree to amendment. Defen- dant's failure to make progress with golf day amounted to an- ticipatory breach of amended contract. PCL Constructors Canada Inc. v. Global Events Manage - ment Group Inc. (Feb. 8, 2016, Ont. S.C.J., Glustein J., CV-15- 527463) 263 A.C.W.S. (3d) 922. Damages PERSONAL INJURIES Plaintiff who suffered brain injury in motor vehicle acci- dent was awarded general damages of $275,000 Motorcycle operated by JF was struck by van operated by JB. At time of accident APM was work- ing in intersection making pave- ment markings. JF sustained serious traumatic brain injury that left him in semi-conscious state for five months. JF would have permanent cognitive, in - tellectual and behavioural im- pairments. JF was 44 years old at time of accident and worked full-time as welder. JF reacquired his driver's license. Surveillance evidence showed JF on daily ba - sis drove independently to many destinations. JF was able to inde- pendently attend YMCA and to use many pieces of gym equip- ment. JF could use computerized exercise tracking program that was available to YMCA mem- bers. JF was able to do some food preparation. JF brought action for damages. Jury determined that liability for accident was to be apportioned 60 per cent to JB and 40 per cent to APM. Action allowed. JF was awarded general damages of $275,000. JF's func - tional gains did not mean that he recovered from his brain injury. JF still suffered from permanent damage to frontal lobe and tem - poral lobe. If JF's routines were changed, he did not have capac- ity to process change or react in intelligent manner. Neuropsy- chological testing indicated that JF had global moderate level of impairment with some areas of severe impairment. JF could not participate in normal give-and- take conversation, but could engage in structured social in - teraction. JF was capable of per- forming many activities of daily living through use of established routines. JF continued to have difficulty processing informa - tion and difficulty thinking and reasoning. JF had problems with planning, organizing and mak- ing appropriate decisions. JF had memory problems. JF's behav- ioural problems diminished but continued at lower level. JF was moderately functional on day- to-day basis, but his functional independence was only possible within structures that his care - givers created for him. Foniciello v. Bendall (Feb. 17, 2016, Ont. S.C.J., J.R. Hender- son J., 50466/08) 263 A.C.W.S. (3d) 937. Family Law CHILD WELFARE Dismissal of parents' appeal for delay was upheld on appeal Trial judge determined child was in need of protection un- der Child and Family Services Act (Ont.) and was to be made Crown ward. Parents were given no right of access to child. Par - ents appealed order on timely basis but had great difficulty perfecting appeal. Motion judge granted Children's Aid Society's motion to dismiss for delay, and issued order dismissing parents' appeal. Motion judge noted there was no prospect that ap - peal then scheduled could pro- ceed because there was no ap- peal record, no certified copies of transcripts and no factum. Parents appealed motion judge's order. Appeal dismissed. In this instance, parents were represent - ing themselves, were hampered by financial difficulties, lan- guage barrier, and inability to respond fully to requirements of rules of court. It would have pref- erable for motion judge to have explicitly addressed elements of test for dismissing appeal for de- lay and especially merits of case before making her ruling. How- ever, parents' challenges were all fact-based and appeal was not re- trial. Appeal had no merit. Mo- tion judge's refusal for adjourn- ment had no effect on inevitable outcome. Children's Aid Society of Toronto v. T. (L.) (Feb. 24, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., P. Lauwers J.A., and C.W. Hourigan J.A., CA C61082) 263 A.C.W.S. (3d) 954. Real Property CONDOMINIUMS Condominium corpora- tion was granted judgment against property manager who issued inaccurate and incomplete status certificate Defendant was property manager for defendant condominium cor- poration. One of its responsibili- ties was issuing status certificates to purchasers of units. Under Condominium Management Agreement, property manager agreed that if status certificate contained an error, then it would be liable for any costs incurred as result of error, and property manager also agreed to hold con - dominium corporation harmless from any claim or action. Con- dominium corporation alleged that property manager issued incorrect status certificate to unit purchaser with consequent dam - ages and loss to condominium corporation. Status certificate misrepresented condominium corporation's finances and failed to reveal that condominium cor - poration was engaged in project to replace roofs of condominium buildings. Unit purchaser ob- tained court order that it did not have to pay special assessment for roof replacement. Condominium corporation brought action for professional negligence, breach of contract, and to enforce indem - nity clause in Agreement. Condo- minium corporation moved for summary judgment for amount of $97,182.68. Motion granted. Prop- erty manager was responsible for accuracy and completeness of all information contained in status certificate. Status certificate was not accurate and it was not com - plete. Costs incurred by condo- minium corporation as result of non-compliant status certificate totaled $97,182.68. Indemnifica- tion clause in Agreement applied. Metropolitan Toronto Con- dominium Corp. No. 673 v. St. George Property Management Inc. (Feb. 16, 2016, Ont. S.C.J., Perell J., CV-14-516468) 263 A.C.W.S. (3d) 1072. Torts NEGLIGENCE Action arising from motor vehicle accident was summarily dis- missed against three defendants Action and companion action arose from single vehicle accident in which vehicle driven by defen- dant M left road and collided with tree. Accident killed passenger P and injured passenger T. Driver and passengers had come from wedding reception of defendant B at hall owned by defendant town and used by defendant club. B held special occasion liquor license permit for reception. T and others commenced action against defen - dants for damages for injuries sus- tained in accident. B cross-claimed against town, club and manager of hall for contribution or indemnity on basis of negligence, Occupiers' Liability Act (Ont.) (OLA) and Li - quor License Act (Ont.). B claimed they allowed driver and passen- gers to be overserved and failed to ensure there were adequately trained staff on hand. Town, club and manager moved for summary judgment dismissing actions and cross-claims against them. All parties consented to motion with exception of B. Motion granted. Moving defendants were not in possession of, nor did they have physical presence in hall at time of the reception, so they could not be occupiers. OLA did not apply be - cause accident occurred off prem- ises. In Ontario, seller of alcohol was liquor license holder, which was B. There was no evidence moving defendants sold alcohol to anyone. Moving defendants could not be liable to plaintiffs, and so could not be liable to B. Tuffnail v. Meekes (Feb. 23, 2016, Ont. S.C.J., H.A. Rady J., 3724-11) 263 A.C.W.S. (3d) 1096. Trusts and Trustees TRUSTS Plaintiff could not overcome appli- cation of Statute of Frauds (Ont.) Defendants were children of de- ceased, AR. Prior to her death, AR had been in long term rela- tionship with plaintiff. Plain- tiff and AR had entered into cohabitation agreement which stated that they were both fi- nancially self-sufficient. Agree- ment provided that C property, in which plaintiff lived with AR, was purchased by plaintiff and was to remain his exclusive property. Agreement went on to state that ownership rights in property would govern division of property. Bank foreclosed on C property and plaintiff and AR moved to cottage owned by plaintiff. Because of ongoing liti - gation problems, plaintiff trans- ferred both properties into AR's name. After parties separated, AR changed locks on properties. Plaintiff sued AR, claiming that she held both properties in trust for him. AR died before trial. Ac - tion dismissed. Plaintiff chose to transfer both properties to AR without receiving declaration of trust from her, even though he seemed to have legal advice that he should require one. Evi - dence did not satisfy trial judge that there was any fraud on AR's part which would allow plaintiff to overcome AR's reliance on Statute of Frauds (Ont.). Plaintiff failed to prove his claim. Both properties were owned by defen - dants. Hartstein v. Ricottone Es- tate (Feb. 17, 2016, Ont. S.C.J., P.J. Flynn J., 15-030-0000) 263 A.C.W.S. (3d) 1098. Ontario Criminal Cases Arrest LEGALITY Subjective and objective components of test for reason- able and probable grounds for arrest were established Accused was convicted of pos- session of cocaine for purpose of trafficking, possession of mari- juana for purpose of trafficking, and two counts of possession of proceeds of crime. Accused's arrest was part of police inves - tigation undertaken as result of information received from confidential informants that P, whose employee W lived in con - dominium building, was high- level drug dealer. Police entered building three times without search warrant. Information obtained during three entries was excluded under Canadian Charter of Rights and Freedoms. When P exited building on third CASELAW

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