Law Times

Page 14 September 19, 2016 • Law timeS www.lawtimesnews.com CASELAW Contracts FORMATION Promotion and increased salary constituted fresh consideration to make contract valid Defendant employed plaintiff for two years. Defendant asked if plaintiff would be interested in promotion with salary increase. Plaintiff said yes. Plaintiff later signed employment contract that contained termination clause. Plaintiff was given notice of im- mediate termination as result of corporate restructuring. Plaintiff was paid for two weeks in lieu of notice. Defendant asserted plaintiff 's employment was ter- minated with appropriate notice and package in accordance with employment contract. Plaintiff claimed damages for wrong- ful dismissal. Claim dismissed. Plaintiff was not entitled to any further notice or payment in lieu of notice. Contract and termi- nation clause were enforceable and plaintiff was given notice in accordance with termina- tion clause in employment con- tract. Verbal conversation was merely inquiry by manager as to whether plaintiff would be inter- ested in new position created by defendant and not acceptance of employment contract. Plaintiff was informed at time of oral con- versation that employment con- tract would be forthcoming with full details. By signing contract plaintiff accepted terms includ- ing promotion, salary increase, start date and termination clause. Plaintiff was sufficiently educated and had adequate time to review, consider and under- stand contract including termi- nation clause. Plaintiff had am- ple time to ask defendant for any clarification needed and to seek appropriate professional advice. Promotion and increased salary constituted fresh consideration to make contract valid. Gibbons v. BB Blanc Inc. (May. 24, 2016, Ont. S.C.J., J. Prattas D.J., Toronto SC-14- 2070-00) 268 A.C.W.S. (3d) 549. Damages LIBEL AND SLANDER Summary judgment for damages for defamation was granted Plaintiff and defendant were both municipal councillors. De- fendant sent email replying to concerned citizen with respect to proposed hydroelectric project. Email was copied to mayor, and to municipal and district coun- cillors. Email stated that plaintiff had disclosed confidential infor- mation from closed session of council with its solicitor with re- spect to project, and had stormed out of that council meeting while having declared conf lict of inter- est in proposed project. Plaintiff immediately notified defendant that she was factually mistaken. Defendant refused to retract statements or apologize. Plaintiff commenced action for damages for defamation against defen- dant. Plaintiff brought motion for summary judgment in action. Motion granted. Defendant's words were false and untrue and email was clearly defamatory to plaintiff. Defendant's email tend- ed to lower plaintiff 's reputation in community and cast serious aspersions on his business eth- ics and trustworthiness. Defen- dant's words implied dishonesty and financial self-interest on part of plaintiff. Plaintiff awarded general damages of $30,000 against defendant. Publication of defamatory words against people in public life undermined and weakened fabric of democratic process. By imputing improper motives, lack of good faith, or acting for pecuniary interest, such libels discouraged people from entering public service and damages served as deterrent to this practice and offered mea- sure of protection to those serv- ing their communities. Brent v. Nishikawa (June 28, 2016, Ont. S.C.J., R. MacKin- non J., Bracebridge CV-14-110- 00) 268 A.C.W.S. (3d) 687. Family Law ADOPTION Child should not be deprived of love and affection of biological father Stepfather was married to child's biological mother. Mother and child consented to stepfather adopting child. Biological fa- ther objected to adoption and wanted to be part of child's life. Biological father asserted he was not aware that child was his bio- logical child. Biological father had no contact with child since birth. Mother did not indicate child's name on divorce applica- tion and did not disclose child of marriage. Mother did not put bi- ological father's name on child's birth certificate and statement of live birth. Mother made no at- tempt to introduce child to bio- logical father. Biological father was not told he had child and was denied any relationship with child for almost 10 years. Child had educational challenges. Fa- ther commenced application for access. Application dismissed. It would not be in child's best in- terests to dispense with consent of father. Mother met stepfather when she was pregnant with child. Stepfather brought mo- tion for order dispensing with consent of biological father with respect to adoption of child. Mo- tion dismissed. Child should not be deprived of love and affec- tion of biological father. Child's current home and relationships would not be disrupted if adop- tion were not granted. It was in best interests of child to be given opportunity to know child had biological father who wanted to have relationship with child. K. (S.D.) v. C. (M.G.) (July 14, 2016, Ont. S.C.J., A. Doyle J., Napanee A 2/16) 268 A.C.W.S. (3d) 575. Limitations DISCOVERABILITY Expert evidence was not needed to decide when claim was discoverable Plaintiff, G, fell at bar in 2006 and broke her arm seriously. G sued bar, which had since closed, and its insurer, became insol- vent. Five years later, when G learned of insurer's insolvency, she commenced action against owner and landlord of property, F, where bar had been located. G relied upon date of discover- ability arguing she did not learn that she could have claim against F until discovery of tenant dur- ing which she learned that F was entitled to approve ten- ant's improvements pursuant to lease, and that F did participate in design and construction of dance stage from which G fell. G's counsel described himself as an experienced solicitor in occu- pier's liability claims but said he did not always name landlords in actions, only if some evidence pointed to their liability beyond mere status as property owner. F's motion for summary judg- ment on basis limitation period expired was dismissed. F ap- pealed. Appeal dismissed. Mo- tion judge did not err by finding G's claim against F was not dis- coverable under s. 5(1)(b) of Lim- itations Act, 2002 (Ont.) until November 11, 2009 and that she had rebutted the presumption in s. 5(2) of Act. There were no steps G reasonably ought to have taken that would have enabled her to discover her claim against F before her lawyer examined bar's representative in November 2009. F's liability as owner and landlord were not obvious. Ex- pert evidence was not needed to decide when claim was discover- able under s. 5(1)(b) of Act. Galota v. Festival Hall De- velopments Ltd. (July 21, 2016, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and L.B. Rob- erts J.A., CA C61253) Decision at 259 A.C.W.S. (3d) 157 was af- firmed. 268 A.C.W.S. (3d) 659. Mortgages POWER OF SALE Mortgagor's motion to restrain sale of property was granted Creditor obtained judgment finding mortgagor and others liable to creditor for over $1 mil- lion for fraud. Among other re- lief, it was ordered that mortgage granted by mortgagor against his property stand as partial se- curity for bulk of amount due under judgment. Mortgagor was one of three principals be- hind numbered company. After obtaining judgment, creditor discovered that numbered com- pany had fraudulently conveyed piece of property to third par- ties. Creditor brought fraudu- lent conveyance action against numbered company and its purchaser, which was settled for amount of $250,000. Credi- tor subsequently gave notice of sale to mortgagor to enforce mortgage on property pursu- ant to judgment. Notice of sale calculated amount due under mortgage without making any disclosure or providing any credit for $250,000 recovered from fraudulent conveyance action. Creditor characterized settlement funds as punitive damages. Property was sold. Mortgagor brought motion to stay sale of property so that he could have more time to obtain financing to pay out mortgage. Motion for stay was dismissed on basis that, absent extreme circumstances tantamount to fraud, mortgagor was not enti- tled to enjoin sale under proper power of sale proceeding except by actually paying mortgage debt in full. On day before sale was to close, mortgagor brought second motion to restrain sale of property. Motion granted. Settlement of fraudulent con- veyance action was compromise of claim premised on third par- ties having assisted numbered company to move asset out from under creditor's ability to realize on it, and could not be characterized as punitive dam- ages. By failing to reveal settle- ment, amount outstanding on mortgage debt was misstated in notice of sale, and notice of sale could not stand. Creditor was enjoined from completing sale. Nadi Inc. v. Yahyavi (July 7, 2016, Ont. S.C.J., F.L. My- ers J., CV-16-55095400A1) 268 A.C.W.S. (3d) 667. Professions BARRISTERS AND SOLICITORS Defendants' conduct was deserving of judicial disapproval Plaintiff brought action against defendants for breach of various agreements, deceit, fraudulent and negligent misrepresenta- tion, unjust enrichment and oppression. Trial consisted of three weeks of evidence followed by written and oral argument. During evidence, trial judge conducted midtrial conferences which did not include settlement discussions. Midtrial conferenc- es were conducted with agree- ment of parties and pursuant to undertakings given by counsel. Following completion of oral argument defendants moved for mistrial, alleging that reasonable apprehension of bias arose from comments of trial judge and questions during oral argument. In dismissing mistrial motion, trial judge referred to agreements of parties and to undertakings of counsel pursuant to which trial judge had conducted midtrial conferences, and disapproved of defendants' reliance on what had transpired therein, based on de- fendants' agreement and under- taking of counsel. Defendants and their counsel requested that trial judge modify reasons for dismissing defendants' mistrial motion by deleting disapprov- ing statements. Request denied. Defendants' counsel agreed to terms which trial judge required if he was to discuss his prelimi- nary views of evidence. Defen- dants' counsel gave his under- taking that trial judge's prelimi- nary views of evidence would not subsequently be basis for arguing that trial judge was demonstrat- ing prejudgment or bias. At mo- tion for mistrial defendants sub- mitted that trial judge's prelimi- nary views of evidence were not in themselves grounds for mis- trial but they provided "context" to contention that bias was rea- sonably perceived in trial judge's comments and questions dur- ing final argument. Defendants breached their agreement and defendants' counsel breached his undertaking to court when he used trial judge's statements in midtrial conferences as part of basis for his argument that rea- sonable apprehension of bias ex- isted. Defendants' conduct was deserving of judicial disapproval. Couper v. Nu-Life Corp. (July 7, 2016, Ont. S.C.J., John Macdonald J., CV-06- CV305132-0000) 268 A.C.W.S. (3d) 560. Ontario Criminal Cases Arson PROOF OF OFFENCE Discreditable conduct evidence was relevant to motive Either residence's owner or ac- cused started fire in hole in basement stairway wall of own- er's 150-year old farmhouse. Accused and complainant, in romantic relationship at time, were only people at house that day. Crown alleged accused started fire at issue to avoid hav- ing to disclose to complainant that she did not have closing funds she claimed she had for property parties were supposed to buy together. That, in turn, would have risked exposing ac- cused's lies about her marriage, money she claimed to be receiv- ing from her husband's death and sale of their matrimonial home. Accused appealed her conviction for arson, arguing that trial judge reversed burden of proof, improperly allowed discreditable conduct evidence, and misapprehended evidence. Appeal dismissed. Discredit- able conduct evidence was rel- evant to motive and properly admitted. Trial judge did not reverse burden of proof and impugned statements ref lected he was responsive to defence arguments. While complainant had opportunity to set garage fire, trial judge rejected only apparent motive he would have had to start that fire: namely, to collect home insurance. That finding was based on accepting complainant's evidence that he would not have benefitted from insurance claim, and was en- titled to deference. Accused had motive to set house fire as trial judge found and even on her ev- idence, accused had about two to three minutes of opportunity to start garage fire. Trial judge found that accused was not credible witness on central is- sues of case such that misappre- hension of impugned evidence would not have played central role in trial judge's reasoning process resulting in conviction. R. v. Bos (June 7, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C56169) Decision at 103 W.C.B. (2d) 242 was affirmed. 131 W.C.B. (2d) 223.

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