Law Times

Law Times • November 21, 2016 Page 19 www.lawtimesnews.com Family Law CUSTODY There was no basis to change custody arrangements Parties had two children and were engaged in custody dis- pute. At time of trial children had been residing with father and his partner for approxi- mately one year, with access to mother pursuant to ex parte order that was confirmed on full hearing. Trial judge con- cluded that father had created unlawful status quo by failing to make full disclosure on ex parte motion and decided that mother should be awarded cus- tody of children. On appeal, ap- peal judge held that it was open to trial judge to have found that father obtained unlawful sta- tus quo and that confirmation of ex parte order did not cure problem. Father appealed. Ap- peal allowed in part; judgment varied. There was no basis on record for trial judge to find material non-disclosure by fa- ther at ex parte hearing and appeal judge erred in holding otherwise. It was error of law for appeal judge to discount full comeback hearing held by judge and to find, contrary to reasons, that judge felt bound to confirm ex parte order. Conclusion reached by appeal judge that there was no reason- able apprehension of bias was not interfered with. There was no basis to change custody ar- rangements of children. It was not in children's best interests to put parties to stress and un- certainty of new trial. Appeal was allowed to extent that fa- ther's child support obligation should commence January 1, 2016 as children remained with father until December 2015. M. (A.) v. M. (J.) (Aug. 26, 2016, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and David Brown J.A., CA C61560) Deci- sion at 261 A.C.W.S. (3d) 916 was varied. 270 A.C.W.S. (3d) 813. Labour Relations CERTIFICATION Union's application for judicial review was dismissed Labourers' union sought bar- gaining rights under s. 128.1 of Labour Relations Act (Ont.). Carpenters' union intervened on basis its bargaining rights barred union's application. La- bourers' union objected that voluntary recognition agree- ment (VRA) between employ- er and carpenters' union was tainted by employer support contrary to s. 53. Labourers' al- legations under s. 53 dismissed. Application dismissed. Labour Relations Board concluded that Carpenters' union had obtained bargaining rights for all employees of employer with certain limited exceptions. Labourers' union applied for judicial review of decision. Ap- plication dismissed. Board had concluded that VRA was, in es- sence, collective agreement en- tered into to resolve outstand- ing application by Carpenters' union to gain bargaining rights for employer's employees. Board had concluded that in- tent was to settle outstanding application and achieve result of giving bargaining rights to Carpenters' union. Board's analysis and conclusion was entirely reasonable one and given prior history regarding application, would appear to be most logical one. Board made express finding that there was no basis to conclude that VRA constituted any sort of employ- er support. Labourers' union failed in effort to establish that Board's decision was unreason- able one. Universal Workers Union (LIUNA, Local 183) v. May- star General Contractors Inc. (Sep. 12, 2016, Ont. Div. Ct., Nordheimer J., Thorburn J., and L.A. Pattillo J., Toronto 368/15) 270 A.C.W.S. (3d) 850. Limitations REAL PROPERTY Elements required for adverse possession were not established Parties were neighbours who owned abutting land. Appli- cants alleged that respondent interfered with their property rights by harassing them, in- stalling various structures on their property and cutting down trees on their property. Respondent asserted adverse possession and right-of-way or prescriptive easement to ben- efit of his property. Applicants sought injunction restrain- ing respondent from trespass- ing upon their land and from harassing them. Application granted. There were no docu- ments that showed registered easements or referred to un- registered easements or to any property acquired by way of adverse possession. This was not case of mutual mistake of boundary lines. Adverse possession could only be es- tablished if, at date of being converted into Land Titles, all elements of adverse possession were existing, and respondent had to prove that exclusive use period of 10 continuous years existed at minimum from Au- gust 1994 to August 2004. Per- sons who owned applicants' property in 2003 signed dec- laration of possession when they sold land clearly stating that they had no knowledge of any claim adverse to their title, and that occupation of land had been undisturbed by adverse possession. At critical time when rights applicants' crystallized in August 2004, date of conversion to Land Titles, elements of adverse pos- session were not met. Sever- ance of land occurred that in November 1994 also defeated 10 year requirement. There was no intention on part of prior owners of respondent's property to dispossess prior owners of applicants' property from portion of land in issue. Respondent failed to establish elements required for adverse possession. MacDonald v. Tunney (Aug. 23, 2016, Ont. S.C.J., DiTomaso J., CV-14-1501) 270 A.C.W.S. (3d) 859. Partnership ACTIONS BETWEEN PARTNERS Action for wrong ful dismissal by former law firm partner was dismissed LLP was law firm that carried on business in partnership with PLC, which was international law firm. PLC acquired con- trolling interest in LLP. Plain- tiff joined LLP as associate and after merger with PLC became salaried international principal. PLC withdrew from its partner- ship with LLP. Dissolution of LLP followed. Plaintiff was not offered comparable position or remuneration at SHR firm or any position at reconstituted LLP firm. Plaintiff was not of- fered severance package by LLP before its dissolution. Plaintiff asserted she was employee at LLP and termination of her em- ployment at LLP amounted to constructive dismissal without notice. Plaintiff sought dam- ages for wrongful dismissal. Action dismissed. From time plaintiff was admitted to PLC as salaried principal, she became partner in LLP and conducted herself after that point as part- ner in LLP until firm dissolved. Plaintiff might not have been vocal or inf luential participant in LLP's proceedings, but that was matter of choice or person- ality and did not denature her status as partner at its meet- ing. Plaintiff had full access to business and financial affairs of PLC and LLP, including billings and billable hours of its law- yers, which was not case with associates. Plaintiff acted as partner by attending meetings, signing cheques on general and trust accounts, holding herself out as partner to clients, and describing herself to Canada Revenue and Law Society as partner. Plaintiff 's salary was regular draw but her bonus was dependant on profitability of combined PLC and LLP firms. Plaintiff enjoyed medical ben- efits package above that of as- sociates, and firms contributed to her RRSP. Daniel v. Miller, Canfield, Paddock and Stone LLP (Sep. 16, 2016, Ont. S.C.J., P.B. Hock- in J., Windsor 14-20383) 270 A.C.W.S. (3d) 878. Substitute Decisions PROPERTY Father was appointed guardian of child's property Parties were married for 13 years and had two children. Or- der was made that provided that parties had joint custody with children primarily residing with father, mother having chil- dren 9 days out of 28 days, and she was to pay child support. Younger child was diagnosed with moderately severe autism. Father brought motion for re- lief, including order appoint- ing him guardian of property of younger child pursuant to Substitute Decisions Act, 1992 (Ont.). Motion granted. Young- er child was adult who was not capable of offering informed consent or preparing power of attorney, and he lacked capac- ity to manage his own finan- cial affairs and property. There was nothing in place respecting management of younger child's property. Younger child needed someone to handle his financial affairs, and father was in good position to take over financial responsibility for his day-to-day needs and expenses and was ap- propriate choice as guardian. Father's management plan was appropriate and acceptable. Brown v. Rowe (Aug. 16, 2016, Ont. S.C.J., A. Doyle J., FC-08-405, FC15-574-00) 270 A.C.W.S. (3d) 815. Taxation SALES TAX Judge granted production order in favour of taxpayer Taxpayer brought appeal un- der Retail Sales Tax Act (Ont.). Minister of National Revenue brought motion to dismiss taxpayer's appeal on basis that scope of appeal allowed under Act did not extend to taxpayer's challenges. Motion judge dis- missed Minister's motion and granted production order in favour of taxpayer. Minister ap- pealed. Appeal dismissed. First part of order dismissing Minis- ter's motion was interlocutory. Judge's order dismissed motion and did not purport to decide anything about scope of appeal. Judge's order did not preclude Minister from raising argu- ments on appeal as to scope of appeal itself. As order was inter- locutory, court had no jurisdic- tion to address merits of appeal and appeal must be quashed. Second part of judge's order dealing with production order was interlocutory and appeal lies to Divisional Court with leave of that court. Enerzone Inc. v. Ontario (Minister of Revenue) (Sep. 23, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and S.E. Pepall J.A., CA C61596) 270 A.C.W.S. (3d) 895. Torts INTERFERENCE WITH ECONOMIC RELATIONS Counterclaim for interference with economic relations was successful Plaintiff company G brought action against defendant cor- poration S and its principal U, for breach of factoring agree- ment. S and U counterclaimed against G, for interference with economic relations. Both action and counterclaim were success- ful at trial, with S and U appeal- ing and G cross-appealing from judgment. Appeal was success- ful, while cross-appeal was dis- missed. S and U sought substan- tial indemnity costs of action. G claimed that there should be no costs, or alternatively costs of no more than $15,000 on partial indemnity basis. Costs submissions made by both par- ties. Costs awarded on partial indemnity basis, in amount of $25,956 plus $3,637.58 in dis- bursements. Any offer to settle made by S was not in writing, as required by rule to obtain in- creased costs. While there was troubling conduct on part of G, relationship between parties was fractured by S and U's con- duct. Evaluated as whole, con- duct of parties could not lead to increased costs award. Partial indemnity costs were appropri- ate. There were discrepancies in hours worked and disburse- ments claimed, in bill of costs presented by S and U's counsel. Counsel for S and U was likely not charging same amount as he was claiming on their be- half. G's bill of costs presented reasonable estimate as to S and U's costs and disbursements. Figures presented by G were within principle of reasonable- ness. Grand Financial Manage- ment Inc. v. Solemio Transpor- tation Inc. (Sep. 22, 2016, Ont. S.C.J., M. McKelvey J., CV-08- 089749-00) Additional reasons to decision at 236 A.C.W.S. (3d) 927. 270 A.C.W.S. (3d) 707. Ontario Criminal Cases Appeal SUMMARY CONVICTION APPEALS Appeal had no apparent merit Accused was found in driver's seat of vehicle from which steam or smoke was emanating, with her head down. Responding police officer detected strong odour of alcohol coming from accused as she walked away, as well as slurred speech and red and bloodshot eyes. Accused was convicted of impaired driv- ing. Her appeal from conviction was dismissed. Accused applied for leave to appeal. Applica- tion dismissed. Leave should be granted sparingly in such circumstances. Appeal had no apparent merit. Trial judge's factual finding that accused's conduct created realistic risk of danger to persons or property was amply supported by evi- dence. Accused admitted that she entered her vehicle with in- tention of driving it. She drank alcohol while in driver's seat, with keys in ignition and car turned on. Passer-by found her at wheel and unresponsive. Ac- cused had not identified any er- ror of law by summary convic- tion appeal judge. R. v. Stacey (Jul. 6, 2016, Ont. C.A., Paul Rouleau J.A., C.W. Hourigan J.A., and G. Par- du J.A., C61653) Leave to appeal decision at 127 W.C.B. (2d) 536 was refused. 132 W.C.B. (2d) 580. CASELAW

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