Law Times

Law Times • JuLy 25, 2016 Page 15 www.lawtimesnews.com CASELAW and was consistent with purpose underlying settlement. Parties to settlement, read to include num- bered company, gave up claims to proceeds generated by company, including proceeds from sale of property. It was not open to G, through numbered company, to circumvent his obligations. Trial judge erred in not considering entire contract when interpreting its proper meaning and scope and claims of numbered company were disallowed. Montor Business Corp. (Trustee of) v. Goldfinger (May. 30, 2016, Ont. C.A., E.A. Cronk J.A., S.E. Pepall J.A., and P. Lauw - ers J.A., CA C57898) Decision at 237 A.C.W.S. (3d) 296 was varied. 266 A.C.W.S. (3d) 21. Civil Procedure COSTS Respondent's actions in proceedings were not proportionate or reasonable Respondent claimed adverse possession over entirety of part two of appellant's property. Re- spondent's claim took up majori- ty of evidence and occupied most of trial time. Majority of respon- dent's offers to settle were pre- mised on respondent granting to appellant easement over his own land. Respondent's right to ease- ment was markedly reduced by judgment from unrestricted ac- cess by any means over entirety of part two of appellant's property to pedestrian access over particu- lar track. First trial lasted 19 days and second trial took 13 days. Ap- pellant claimed overall success in proceedings and sought partial indemnity costs of first and sec- ond trials, related proceedings, and of this appeal in all-inclusive amount of $410,000. Respondent argued she was entirely success - ful before second trial judge and appellant was only partially suc- cessful on appeal. Appellant was entitled to costs of $282,000 pay- able within 30 days. Outcome of proceedings was important to parties. Respondent's actions in proceedings were not propor - tionate or reasonable. Outcome of appeal for respondent was not significantly better than appel- lant's 1995 offer of yearly license fee and had respondent accepted that offer, proceedings could have been avoided. Respondent never questioned but stubbornly maintained erroneous position that she owned entirety of part two. Even after Director of Titles confirmed appellant's boundar - ies, which exposed respondent's erroneous views, respondent pressed on with adverse posses- sion claim that proved on appeal to be without merit. Barbour Estate v. Bailey (May. 4, 2016, Ont. C.A., J. MacFarland J.A., Paul Rouleau J.A., and L.B. Roberts J.A., CA C58076) 266 A.C.W.S. (3d) 36. SETTLEMENT Offer was not withdrawn prior to acceptance Plaintiff made settlement offer to respondent defendants offering to withdraw claim without costs without specifying deadline for acceptance. Six days later plaintiff emailed respondents telling them to schedule discoveries. Respon - dents accepted offer the same day. Plaintiff claimed that ac- ceptance not valid as no apology given. Motion judge held settle- ment was binding and email not effective to terminate offer. Plain- tiff appealed. Plaintiff claimed settlement was not accepted ac- cording to its terms, because it was only accepted by settlement respondents and not all respon- dents. Appeal dismissed. Appeal was attack on findings of mo- tion judge that settlement offer was for the dismissal of action as against settlement respondents; offer was not withdrawn prior to acceptance; and settlement bind - ing on plaintiff. Findings entitled to deference. Settlement offer did not specify that it was conditional on acceptance by all parties. Hussain v. Sarafian (May. 2, 2016, Ont. C.A., Doherty J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C61339) Decision at 259 A.C.W.S. (3d) 264 was af - firmed. 266 A.C.W.S. (3d) 67. Court held that there was no binding settlement Applicant commenced proceed- ing against respondent brothers pursuant to oppression remedy provisions of Business Corpora- tions Act (Ont.). Parties settled on terms of share purchase and sale agreement and share pledge agreement, under which appli - cant agreed to sell respondents his shares. Respondents de- faulted on monthly payments. Applicant demanded payment of outstanding balance and par- ties entered subsequent negotia- tions. Respondents confirmed tentative resolution and set out payment terms. Applicant's law- yer responded that applicant was prepared to settle default on terms essentially same, noting costs were at issue and terms of settlement offer were not sever - able from each other. Discus- sions continued and respon- dents took position they had not reached resolution since issue of costs remained outstanding and they would be prejudiced if first agreement was enforced. Appli - cant brought successful motion for summary judgment based on first settlement negotiations. Respondents appealed and ap - plicant cross-appealed. Appeal allowed and cross-appeal dis- missed. Acceleration clause re- quires debtor to pay off balance sooner than due date if some specified event occurs, such as failure to pay installment. For unexplained reasons, parties did not include acceleration clause in share purchase and sale agreement and did not do so in share pledge agreement, which was means by which security was required for payments. Agreements contemplated what would happen in event of de - fault. Terms of agreements were clear. Motion judge erred in col- lapsing outstanding payments into amount owing in absence of acceleration clause and in face of terms agreed to by parties set- ting out responsibilities in case of default. Respondent did not treat default as accelerating bal- ance owing under share pur- chase and sale agreement or en- titling him to realize on security of shares held in escrow. Fresh evidence sought to be adduced by respondent did not meet relevant test. Issue of costs was outstanding and terms were not severable. There was no binding settlement. Scamurra v. Sandy Scamur - ra & Sons Ltd. (Apr. 28, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Ben- otto J.A., CA C60913) Decision at 257 A.C.W.S. (3d) 319 was re- versed. 266 A.C.W.S. (3d) 66. SUMMARY JUDGMENT Motion judge did not violate principle of res judicata Appeal from decision granting summary dismissal of counter- claim. Respondent brought ac- tion against appellants. In 2012 respondent's motion for sum- mary judgment was dismissed on basis that trial was required. Appellants made counterclaim. In 2015, respondent brought mo - tion for summary judgment on counterclaim. Motion judge con- ducted mini-trial on issue of why respondent did not make certain advances after mortgage went into default, and granted sum - mary judgment dismissing coun- terclaim. As result of dismissal of counterclaim, motion judge granted judgment to respondent on two mortgages. Appellants appealed, alleging judgment on counterclaim was inconsistent with 2012 judgment. Appeal dis - missed. In mini-trial, parties of- fered competing explanations. Motion judge heard evidence and resolved issue in respondent's fa- vour. Motion judge was entitled to do this on record before him, and did not violate principle of res judicata. Pleadings changed be - tween two motions and so did law relating to summary judgment. Combination of changes meant motion judge's approach was not inconsistent with 2012 order. In effect, motion/mini-trial in 2015 gave effect to 2012 order. Slade v. Tanfi Ltd. (May. 2, 2016, Ont. C.A., Doherty J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C60028) Decision at 249 A.C.W.S. (3d) 796 was af - firmed. 266 A.C.W.S. (3d) 69. Damages PERSONAL INJURIES No inconsistency in amount jury awarded for future income loss Appellant was involved in motor vehicle accident. Appellant was stopped at red light and was hit from behind by transport truck. At time of accident plaintiff was enrolled as dentistry gen - eral practice residency. Plaintiff sustained injuries, which she claimed prevented her from maintaining full-time clinical dentistry practice. Respondents admitted liability. Appellant sought future loss of income of $6 million. After trial jury awarded $112,496 for future in- come loss. Respondents asserted discussions between counsel and expert witness before expert prepared report were improper. Appellant asserted trial judge erred in failing to instruct jury that such communications were not proper basis on which to re - ject expert's testimony. Appel- lant appealed seeking to set aside jury's verdict and judgment in relation to her future loss of in- come. Appeal dismissed. There was no inconsistency in amount jury awarded for future in- come loss when compared with amounts it awarded on other heads of damage. There was evi- dence that supported jury's ver- dict and it was not to be set aside even though other conclusions were also available on evidence. There was conf licting evidence in relation to appellant's as - sumptions that jury accepted all plaintiff 's economic evidence and that appellant would have continuing future losses. There was no disagreement among experts that appellant's injuries were soft tissue in nature and her symptoms improved over time. It was not inconsistent for jury to have awarded full past income loss amount that appel - lant claimed but only relatively smaller sum for future income loss. Jury was clearly satisfied that while appellant suffered compensable income loss to date of trial, based on evidence they accepted, she could either resume full-time clinical prac - tice or earn equivalent income in very near future. Fonseca v. Hansen (Apr. 26, 2016, Ont. C.A., G.G. Gil - lese J.A., J. MacFarland J.A., and K.M. van Rensburg J.A., CA C58894) 266 A.C.W.S. (3d) 104. Employment WRONGFUL DISMISSAL Trial judge was not required to resolve every conf lict in evidence Appellant worked as electrician for respondent for 21 years. Ap- pellant suggested that old soft- ware be installed on Smart Car before encoders were added and full functional permitting Smart Car to operating auto - matic mode without encoders that were required for safety. Re- spondent's safety rules prohib- ited tampering with or defeating any safety device. Respondent dismissed appellant from em- ployment. Appellant brought action asserting respondent wrongfully dismissed him. Ac- tion was dismissed. Appellant appealed. Appeal dismissed. Tri- al judge did not rely on ground of dismissal not pleaded. Trial judge did not rely on failure of appellant to clearly report his ac - tions as ground of dismissal. In light of evidence and appellant's concessions, trial judge's finding that Smart Car was only run in manual mode before specified date not palpable factual error, and even if it were factual error, it was not overriding error. Trial judge was not required to resolve every conf lict in evidence. Con- f lict specified was not material to final determination. Wasinski v. Norampac Inc. (Apr. 28, 2016, Ont. C.A., Alex - andra Hoy A.C.J.O., M.L. Benot- to J.A., and L.B. Roberts J.A., CA C60058) 266 A.C.W.S. (3d) 110. Family Law CUSTODY Trial judge's decision to award joint custody was entitled to deference Parties, who were not married but lived together for approxi- mately one year, had one child. Parties broke up and mother did not allow father to see child until temporary custody agreement was in place. Mother alleged that father had anger management problems, alcohol problems and acted out against her in pres - ence of child. Father brought ex parte motion, and was to be allowed supervised access as re- sult. Father successfully brought application for unsupervised access and for joint custody of child. Mother appealed. Appeal dismissed. Trial judge's decision to award joint custody was en - titled to deference. Trial judge's reasons that mother overstated her fear of father and refused to communicate supported order for joint custody. Trial judge's order was reasonably necessary to ensure father had real rela - tionship with son and therefore, it was in child's best interest. Plugers v. Krasnay (Apr. 12, 2016, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and David Brown J.A., CA C59854) Decision at 248 A.C.W.S. (3d) 116 was affirmed. 266 A.C.W.S. (3d) 136. PROPERTY Motion judge did not err in failing to apply mathematical formula for equalization Wife brought motion for sum- mary judgment for equalization of net family property in amount of $268,000 or $214,000. Wife was granted equalization pay - ment of $60,000. Wife appealed. Appeal dismissed. Parties cohab- ited for less than five years so s. 5(6) of Family Law Act (Ont.) ap- plied. Motion judge was entitled to consider all evidence and ap- ply s. 5(6) of Act and determine whether unequal division was appropriate and if so, quantum of unequal division. Motion judge was not limited to choosing one of two amounts wife suggested or refer question of quantum to trial if he rejected those amounts. Mo - tion judge did not err in failing to apply mathematical formula. Motion judge looked at back- grounds of both parties, deter- mined that equal division would be unconscionable and fixed rea- sonable amount, and there was no error in his approach. Factors respecting parties' contributions supported equalization payment of $60,000. Gomez v. McHale (May. 2, 2016, Ont. C.A., Doherty J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C61434) 266 A.C.W.S. (3d) 158.

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