Law Times

Law Times • augusT 22, 2016 Page 15 www.lawtimesnews.com CASELAW Corporations Act (Ont.). Op- pression claim was rejected. Tri- al judge found that there was no intent to defeat, hinder, delay or defraud creditors, and conclud- ed that transactions did not vio- late reasonable expectations of its creditors. Trustee appealed; G cross-appealed. Appeal and cross-appeal dismissed. Trial judge's decision on oppression ref lected exercise in discretion and was entitled to deference. K believed payments and transac- tions would permit companies to continue as going concerns and that they would generate profit. Cataclysmic, unforeseen global economic meltdown that occurred months after pay- ments were made could not be ignored. In that context, trial judge did not err in exercising his discretion and dismissing trustee's claim of unfair disre- gard for interests of creditors. 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. Lau- wers J.A., CA C57879) Decision at 237 A.C.W.S. (3d) 296 was af- firmed. 267 A.C.W.S. (3d) 274. Family Law CHILD WELFARE Father's status review application was dismissed Father and ex-wife had two chil- dren who were apprehended and placed in care of Children's Aid Society of Toronto in March 2010. In July 2010, trial judge found children were in need of protection and granted order making them wards of Society for four months with access by parents at discretion of society. April 2012 order ordered that children be Crown wards for purpose of adoption and that there be no access granted to parents. Father and his former wife appealed ordered, but ap- peal was dismissed. Father's motion seeking leave to extend time to appeal was dismissed. Father's status review applica- tion was dismissed as conse- quence of his failure to attend court. Father's further motion seeking leave was dismissed. Appeal judge dismissed father's appeal of order denying him leave to bring status review ap- plication. Father appealed. Ap- peal dismissed. Appeal judge's reference to children as "girls" was mere factual slip and had no bearing on her decision. Even if letter from Jamaican Canadian Association would have been considered, it would not have changed outcome of motion. Letter simply described parent- ing program that father had at- tended. Letter did not impact analysis of whether father put forward prima facie case. There was no breach of father's Char- ter rights. Children's Aid Society of To- ronto v. S. (M.) (May. 25, 2016, Ont. C.A., J.C. McPherson J.A., P. Lauwers J.A., and C.W. Hou- rigan J.A., CA C61739) Decision at 261 A.C.W.S. (3d) 356 was af- firmed. 267 A.C.W.S. (3d) 361. COSTS No reason to interfere with decision refusing to award costs Husband brought successful motion for variation of child sup- port, and proportionate sharing of extraordinary expenses for post-secondary education based on imputed income to wife. Wife's cross-motion for increase in retroactive and ongoing spousal support was dismissed. Motion judge refused to award costs to husband. Wife appealed; husband cross-appealed refusal to award him costs. Wife's ap- peal dismissed; husband's cross- appeal dismissed. Motion judge properly instructed herself on law in relation to costs in fam- ily law matters, and was aware of history of parties' litigation. Judge concluded that husband made derogatory comments about wife that increased con- f lict, and this was factor she was entitled to consider in her deci- sion regarding costs. No reason existed to interfere with decision to order no costs. Hersey v. Hersey (June 20, 2016, Ont. C.A., E.A. Cronk J.A., R.A. Blair J.A., and J. Mac- Farland J.A., CA C61631) Deci- sions at 262 A.C.W.S. (3d) 167 and 263 A.C.W.S. (3d) 421 were affirmed. 267 A.C.W.S. (3d) 413. Pensions ADMINISTRATION Application judge did not err in interpretation of supplementary executive retirement plan Issue in controversy arose from interaction of registered pension plan and supplementary pension plan. Whether applicants were entitled to supplementary pen- sion benefits turned on interpre- tation and application of s. 2.24 of Supplementary Plan, which set out what supplementary pen- sion benefit meant. Applicants unsuccessfully brought applica- tion for order declaring that ap- plicants were entitled to receive supplementary pension benefits under supplementary pension benefit plan and for order requir- ing respondent to pay those sup- plementary pension benefits to applicants. Applicants appealed and respondent cross-appealed. Appeal dismissed; cross-ap- peal dismissed. Main issue was whether application judge erred in his interpretation of s. 2.24, in particular whether he erred in concluding that proviso in s. 2.24 required exclusion of grow-in benefits from benefit amount cal- culated under s. 2.24(a) but their inclusion in deduction amount calculated under s. 2.24(c). Ap- plication judge applied governing principles of contractual inter- pretation correctly. There was no error as application judge's inter- pretation was supported by state purpose of SERP, words of s. 2.24 and actuarial opinion evidence. Application judge's interpreta- tion achieved intended purpose of overall formula established by that section, and gave full effect to proviso. Groskopf v. Shoppers Drug Mart Inc. (June 16, 2016, Ont. C.A., E.A. Cronk J.A., R.A. Blair J.A., and J. MacFarland J.A., CA C61258) Decision at 259 A.C.W.S. (3d) 568 was affirmed. 267 A.C.W.S. (3d) 452. Real Property CONDOMINIUMS Special assessments levied by condominium corporation were appropriate and valid As owners of majority of units in commercial condominium building, defendants voted themselves directors, passed various bylaws, and retained E Inc.. E Inc., which was related to defendants, billed plaintiff condominium corporation for services. Minority unit owners refused to pay certain expenses levied against them and eventu- ally brought oppression action against defendants. Administra- tor was appointed to take over running plaintiff. Plaintiff levied special assessments that defen- dants refused to pay. Plaintiff issued notices of sale against de- fendants' units. Plaintiff brought action against defendants for payment of arrears, declaration as to validity of notices of sale and vacant possession. Action allowed in part. It was held that accountants' report was reliable evidence as to condominium fees assessed against and unpaid by defendants. Trial judge found that defendants were not relieved of their obligation to pay fees and contribute to common expenses by view that plaintiff breached provisions of Condominium Act, 1998 (Ont.). It was held that special assessments levied by plaintiff through administra- tor were appropriate and valid. Total liability of principal and interest, up to Aug. 31, 2012 was $289,070.37. Defendants ap- pealed. Appeal dismissed. It can- not have been intention behind Act that if condominium owner failed to pay common expenses and for some reason corporation did not register lien, corporation was powerless to recover arrears and other owners must bear con- sequences of defaulting owner's non-payment. Conclusions were reasonably open to trial judge on evidence before him. Defendants did not show any error in trial judge's reasons that would justify appellate interference. Carleton Condominium Corp. No. 396 v. Burdet (May. 25, 2016, Ont. C.A., Paul Rou- leau J.A., G. Pardu J.A., and M.L. Benotto J.A., CA C59930) Deci- sion at 248 A.C.W.S. (3d) 462 was affirmed. 267 A.C.W.S. (3d) 461. EASEMENTS Trial judge's conclusion that respondent had acquired possessory title was set aside According to appellant's deed, his property extended to water's edge and section known as Part 2 included beach in front of his mainland property and part of isthmus that joined T Island to beach of Part 2 when isthmus was above water. Appellant held paper title to Part 2 and respon- dent, current owner of T Island, claimed possessory title to it. Par- ties' respective properties were transferred into Land Titles re- gime on September 10, 2001, after which it was no longer possible to acquire possessory title, subject to "grandfathering" of previ- ously established claims. Trial judge found that respondent had acquired possessory title over en- tirety of Part 2 of appellant's prop- erty or, alternatively, prescriptive easement or right-of-way. Appel- lant appealed. Appeal allowed in part. Trial judge's conclusion that respondent had acquired posses- sory title over entirety of Part 2 of appellant's property by way of adverse possession was set aside. Trial judge's order was varied to restrict respondent's easement to non-vehicular passage. Although appellant objected to respon- dent's use of his property, she continued to openly and peace- fully assert what she mistakenly thought was her right to use Part 2. Uses of beach, path and isth- mus varied. Trial judge erred in treating nature and duration of those uses as identical. Trial judge correctly held that respondent acquired easement over path on Part 2, including isthmus when it was above water. However, trial judge erred in granting easement that included vehicular use when there was no evidentiary basis for doing so. Ambulatory boundar- ies and status as Crown land of isthmus when under water did not affect continuous use that owners of T Island made of path over Part 2. Specifically, they did not prevent creation of easement over path, extending to water's edge, even when isthmus was under water. Evidence accepted by trial judge did not, however, establish any continuous 20-year period of use of path on Part 2 by motor vehicle because of various periods that isthmus was under water and travel by motor vehicle ceased. While trial judge cor- rectly found that respondent ac- quired easement or right-of-way over path on Part 2 of appellant's property, trial judge erred in fail- ing to restrict respondent's ease- ment to non-vehicular use. Use of motor vehicles over Part 2 fell short of 20-year requisite period to establish easement. Respon- dent's use should therefore be re- stricted to non-vehicular passage over path on Part 2. Barbour v. Bailey (Feb. 4, 2016, Ont. C.A., J. MacFarland J.A., Paul Rouleau J.A., and L.B. Roberts J.A., CA C58076) Deci- sions at 237 A.C.W.S. (3d) 504, 239 A.C.W.S. (3d) 574 and 241 A.C.W.S. (3d) 282 were reversed. 267 A.C.W.S. (3d) 463. Ontario Criminal Cases Defences MISTAKE Accused relied on mistake of age defence Accused, who was 40-year-old male, picked up complainants, who were two teenaged girls who were hitchhiking. One girl was 14 and one-half years old and other girl was 15 and one-half years old. Complainants expressed interest in engaging in sexual activities and accused drove to parents' home where they had sexual in- tercourse. Complainants could not consent to sexual acts but trial judge allowed accused to rely on mistake of age defence and ac- quitted accused. Crown appealed acquittal. Appeal dismissed. There was no basis for appellate intervention with judge's holding that accused took all reasonable steps to ascertain complainants' ages. Furthermore, reasonable person would have been satisfied that complainants were over 16, just as complainants intended, without need for further inquiry. R. v. Chapman (Apr. 28, 2016, Ont. C.A., E.A. Cronk J.A., M. Tulloch J.A., and K. van Rensburg J.A., CA C60515) 130 W.C.B. (2d) 403. Motor Vehicles DANGEROUS DRIVING Accused was repeatedly informed of dangerousness of driving Accused drove vehicle with three passengers and got into race with another vehicle. Accused's vehicle spun out of control and crashed. S, who was front seat passenger in accused's car, was ejected from car and suffered serious injuries. Just prior to ac- cident S asked accused twice to slow down but accused refused to comply. Accused was charged with three counts of dangerous driving causing bodily harm. Ac- cused was convicted of danger- ous driving related to S but was acquitted regarding other two passengers. Accused appealed conviction. Appeal dismissed. There was sufficient evidence to prove that accused's driving was cause of S' injuries. Even though other driver was acquitted of dangerous driving verdicts were not inconsistent. Case against accused was stronger because only accused was being repeat- edly informed of dangerousness of driving. R. v. Siddiqui (May. 13, 2016, Ont. C.A., Gloria Epstein J.A., S.E. Pepall J.A., and K.M. van Rensburg J.A., CA C60692) 130 W.C.B. (2d) 364. Prostitution PROCURING Accused convicted of procuring 14-year-old female to become prostitute Accused convicted of procuring 14-year-old female to become prostitute. Accused appealed. Appeal dismissed. Trial judge erred in instructing jury that belief by accused that female was already prostitute was required to be reasonable belief, but this error was harmless. Verdict was reasonable. Evidence existed on which accused could be found guilty. Trial judge did not make impermissible comments re- garding failure of accused to tes- tify. Sentence was reasonable. R. v. Bloomfield (June 7, 2016, Ont. C.A., Robert J. Sharpe J.A., David Watt J.A., and David Brown J.A., CA C58534) 130 W.C.B. (2d) 433.

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