Law Times

Law Times • June 27, 2016 Page 15 www.lawtimesnews.com appeal was otherwise resolved and dismissed by Court. Tax- payer's motion dismissed; min- ister's motion granted. Initial appeal was dismissed in 2013, and supplementary appeal was dismissed on basis that substan- tive issues under appeal were resolved pursuant to s. 169(3) of Income Tax Act (Can.) and all rights of appeal from con- sequent reassessment were irrevocably waived under s. 169(2.2). Facts did not support allegations of fraud on Court at time of filing of discontinu- ance, recklessness in respect of truth or knowledgeable mis- representation. Legal logic and common sense were followed by minister's counsel; his analysis did not ignore or misrepresent attempted post-reassessment re- scission by taxpayer or litigation counsel. Even if Court were to find such logic faulty, error did not constitute fraud. Post-facto and untimely disavowal by sin- gle taxpayer, entirely caused by omission of litigation counsel, and subsequent advice of same to minister's counsel, could not revoke, rescind or avoid pre- existing settlement ref lected in minutes of settlement and discontinuance and fully per- formed by notices of reassess- ment. No one was aware of lack of authority granted by taxpayer to litigation counsel to settle appeal until after execution of minutes and, most importantly, consequential issuance of no- tices of reassessment to 25 tax- payers. There was no evidence that minister's counsel had any knowledge whatsoever of lack of authority until after all docu- ments, actions and conditions subsequent were effected and concluded, otherwise entirely in accordance with terms of min- utes and related documents. Davies v. R. (April 27, 2016, T.C.C. [General Procedure], Randall S. Bocock J., 2010- 3571(IT)G, 2014-2450(IT)G) 265 A.C.W.S. (3d) 811. Ontario Civil Cases Expropriation ABANDONMENT Offer-back obligation pursu- ant to Expropriations Act (Ont.) not triggered School board expropriated property from numbered com- pany for purposes of construc- tion and operation of school and related amenities. Board autho- rized its staff to implement land swap with city by which much of property would be exchanged for city lands. Company's appli- cation alleging that board's au- thorization triggered s. 41(1) of Expropriations Act (Ont.), oblig- ing board to offer to re-convey property to it, was dismissed. Company appealed. Appeal dis- missed. School board's action did not trigger offer-back obliga- tion in s. 41(1) of Act. Board did not abandon property when it authorized land swap with city and did not change its purpos- es for expropriating property. Board did not act as agent for city in expropriating property. Court undertook purposive ap- proach to interpretation of Act. It was not court's function to mi- cromanage board's actual use of property, so long as it was used as part of school site or related amenities owned by board. Ap- plication judge erred to extent of awarding full indemnity costs of board. Company's appeal was allowed in terms of costs and award was set aside and substi- tuted for amount of $14,000 all- inclusive. 1739061 Ontario Inc. v. Hamilton-Wentworth District School Board (March 15, 2016, Ont. C.A., K. Feldman J.A., P. Lauwers J.A., and M.L. Benotto J.A., CA C60267) Decision at 251 A.C.W.S. (3d) 262 was af- firmed. 265 A.C.W.S. (3d) 673. Insurance CANCELLATION Insurance policy cancelled prior to motor vehicle accident Defendant driver had been in- sured by insurance company S Co. prior to motor vehicle ac- cident with plaintiff injured person C who was insured by insurance company E Group. There was coverage dispute be- tween insurance companies on ground that defendant had cancelled her insurance policy prior to accident. Motion judge granted S Co.'s motion for sum- mary judgment and dismissed E Group's cross-motion for summary judgment. Judge was not convinced that s. 22(2) of Insurance Act (Ont.) imposed elevated onus on E Group to prove that cancellation was "clear and unequivocal", but if there were such elevated onus, S Co. had satisfied it. Judge held that plaintiff was entitled to un- insured motorist coverage under plaintiff 's policy with E Group. E Group appealed. Appeal dis- missed. Judge relied on evi- dence of records, which showed that before accident occurred, defendant requested that her policy be cancelled and received Acknowledgment of Cancella- tion Request. To extent that this evidence amounted to hearsay, it was admissible via business re- cords exception. Judge's conclu- sion was supported by record. Candito v. Nmezi (April 19, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and L.B. Roberts J.A., CA C61046) 265 A.C.W.S. (3d) 757. Mental Health INCOMPETENT PERSONS Decision that patient lacked capacity was not unreasonable Consent and Capacity Board determined appellant was inca- pable of consenting to treatment with antipsychotic medications. Appeal was dismissed. Patient appealed. Appeal dismissed. Appeal judge properly assessed issue of capacity to consent to treatment on basis of record be- fore Board when it made that determination and assessment was not materially inf luenced by what transpired at subsequent hearing. Decision that patient lacked capacity was not unrea- sonable. There was clear evi- dence that patient suffered from mental disorder and refused to acknowledge he was affected by that mental disorder. There was ample evidence to support determination that patient was not able to appreciate reasonably foreseeable consequence of deci- sion or lack of decision. Patient was not denied fair hearing. Any curtailment on cross-examina- tion of doctor was on matters tangential to issues before Board. Othen v. Robertson (Apr. 13, 2016, Ont. C.A., Robert J. Sharpe J.A., G.R. Juriansz J.A., and L.B. Roberts J.A., CA C60868) 265 A.C.W.S. (3d) 776. Municipal Law CONTRACTS Applications judge erred in setting aside determination of arbitrator City and business entered into agreement for use of stadium. Dispute arose regarding agree- ment which was settled. Min- utes allowed for city to terminate lease in event of bona fide de- velopment plans, with option to lease certain park or other prop- erty if park not available. Devel- opment occurred, and business claimed city did not honour ob- ligations. At arbitration, city was found to have breached minutes of settlement. City's application for leave to appeal and appeal was allowed. Application judge found that arbitrator erred in law by conf lating portions of settle- ment agreement, so that en- forcement of agreement to agree was undertaken. Application judge found that arbitrator erred interpreting contract so that city was required to offer alternate site similar to particular park and suitable to business's pur- pose. Application judge found that city met requirements of minutes of settlement and nego- tiated in good faith. Application judge found that when arbitra- tor found that site offered was similar to certain park, require- ments were met and fact that extra development costs would be necessary for its use was not breach of settlement minutes. Application judge found that arbitrator improperly speculat- ed about intention of business. Application judge found that city was not required to ascer- tain specific needs of business and determine how they could be met. Business appealed. Ap- peal allowed. Application judge erred by concluding that arbitra- tor's interpretation of minutes of settlement was unreasonable. Arbitrator found minutes of set- tlement explained and modified overarching requirement that parties would enter into good faith negotiations in effort to find alternative site(s). As deter- mination of arbitrator was rea- sonable, applications judge erred in setting it aside. Arbitrator's determination regarding dam- ages were reasonable and were upheld. Ottawa (City) v. Coliseum Inc. (May 13, 2016, Ont. C.A., J.C. MacPherson J.A., K. van Rensburg J.A., and B.W. Miller J.A., CA C60016) Decision at 245 A.C.W.S. (3d) 268 was re- versed. 265 A.C.W.S. (3d) 606. Police DISCIPLINE Misconduct under Police Services Act (Ont.) needs clear and convincing evidence Appellant police officer was originally found guilty of mis- conduct, by police services board. Appeal board confirmed finding of guilt. Officer applied to Divisional Court for judicial review, which was dismissed. Officer appealed from dismissal of judicial review. Appeal al- lowed; matter remitted to appeal board. Divisional Court found that standard of proof for mis- conduct was balance of proba- bilities. Supreme Court jurispru- dence that was distinguished by Divisional Court should in fact have been followed. Supreme Court established need for clear and convincing evidence, which was higher standard of proof. Clear and convincing evidence was not established in subject case. It was necessary to send matter back to Commission, to determine matter based on proper standard of proof. Jacobs v. Ottawa Police Ser- vice (May 10, 2016, Ont. C.A., John Laskin J.A., C.W. Hou- rigan J.A., and David Brown J.A., CA C61012) Decision at 254 A.C.W.S. (3d) 713 was reversed. 265 A.C.W.S. (3d) 790. Real Property CONDOMINIUMS Condominium corporation granted order permitting entry to unit Flooding was discovered in basement of condominium unit and emergency cleanup and re- pair was carried out. Owner was provided with notice of entry to allow contractor to inspect unit to determine cause of f looding. Contractor inspected unit and provided quote and explanation for cause of f looding. Further notice of entry was provided to owner so that contractor could enter unit and effect repairs. Owner refused entry to unit for over six months before allowing repairs to be made. Contrac- tor discovered mould in walls. Owner refused to permit con- tractor to assess mould remedia- tion costs. Condominium cor- poration brought application for declaration owner had breached ss. 117 and 119 of Condomini- um Act, 1998 (Ont.) and order permitting entry to unit to effect repairs. Application granted. Owner's failure to permit entry to unit resulted in breach of ss. 117 and 119 of Act. Owner failed to comply with Act, declaration, bylaws and condominium rules, and allowed mould situation to carry on such that it was likely to damage property or cause injury to individual. York Region Condominium Corp. No. 922 v. Lu (April 15, 2016, Ont. S.C.J., C.A. Gilm- ore J., CV-15-012249-00) 265 A.C.W.S. (3d) 802. EASEMENTS Defect in title cured by application of s. 50(22) of Planning Act (Ont.) In 2012, applicants bought lake- front property (parcel A) con- taining buried pipe that carried water from lake to respondents' neighbouring non-lakefront property (parcel B). When pipe began leaking in 2014, respon- dents entered applicants' prop- erty to effect repair without obtaining permission. When repair impossible, respondents ran above-ground pipe across applicants' property, again with- out permission. Applicants' claimed trespass and demanded pipe be removed. Respondents claimed they had easement. In 1966, parties' predecessors in title had agreed owner of parcel B could install pipe under parcel A in order to draw water from lake. Agreement was never reg- istered and could no longer be located. In 1968, same parties had agreed pipe could remain, owner of parcel B could enter parcel A to effect any neces- sary repairs and owner of par- cel B would pay $10 per year. Agreement did not purport to be binding on successors or as- signs and was not formally reg- istered. In 1979, new predeces- sors in title executed document entitled "Water Pipe Easement" which did refer to successors and assigns and was registered against title. Applicants brought application for declaration easement, if any, was invalid. Respondents brought counter- application for declaration there valid and subsisting easement. Application dismissed; cross- application allowed. While 1968 and 1979 documents satisfied all requirements for creation of easement, applicants correct that grant contained in 1979 document invalid for failure to comply with provisions of Plan- ning Act (Ont.) (PA). Defect had been cured, however, when ap- plicants and predecessor trig- gered application of s. 50(22) of PA by confirming investigation and expressing satisfaction with state of title in transfer docu- ments. Since both properties converted to land titles system before dispute arose, Registry Act (Ont.), which required ease- ment to include proper descrip- tion of property, did not apply. Respondents had valid easement over applicants' property with respect to water pipe that in- cluded right to enter property in order to effect repairs, without obtaining agreement, subject to obligation to repair any damage. Respondents should pay annual fee as required. Mihaylov v. 1165996 On- tario Inc. (Feb. 25, 2016, Ont. S.C.J., Stinson J., Toronto CV-15- 530371) 265 A.C.W.S. (3d) 806. CASELAW

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