Law Times

Page 14 January 9, 2017 • Law Times www.lawtimesnews.com Debtors and Creditors RECEIVERS Actions involving receiver Action against court appointed receiver was stayed Order was made staying action as against court appointed receiver and refusing leave to sue receiver. Plaintiff appealed. Appeal dis- missed. Submission that motion judge erred in failing to find that receiver had already consented to action being commenced against it was rejected. No basis was seen to interfere with mo- tion judge's refusal to grant leave to sue receiver. This was discre- tionary decision. Motion judge found that there was no evidence tendered that plaintiff suffered damages and, having assessed record before her, she declined to draw such inference. No error was seen in her conclusion. It was reasonably based on evidence or lack of evidence placed before her on motion. 2027707 Ontario Ltd. v. Richard Burnside & Associ- ates Ltd. (2016), 2016 Carswel- lOnt 17141, 2016 ONCA 819, Paul Rouleau J.A., K. van Rens- burg J.A., and B.W. Miller J.A. (Ont. C.A.). Family Law DIVISION OF FAMILY PROPERTY Practice and procedure Party not required to plead all material facts at start of case Pleadings. Wife's application for divorce included claim for equalization of net family prop- erty. Wife sought to amend ap- plication to claim unequal di- vision of net family properties in her favour, alleging reckless depletion of net family property by husband. Wife claimed hus- band was involved in affair, used escort services and belonged to adult fetish website. Husband's motion to strike out amend- ment was granted. Wife ap- pealed. Appeal allowed in part. Motion judge erred in applying rules of civil procedure to im- pose requirement to plead mate- rial facts. Family Law Rules did not require all material facts re- lied on to be set out at time case was started. Requiring party to plead "material facts" prior to financial disclosure would run contrary to Rules and contrary to basic fairness. Motion judge erred in moving on ow initiative to summary judgment without providing notice to wife. Claim for unequal division could only be made after usual equalization payment was calculated, and calculation must result in un- conscionability. Determination could not be made on pleadings motion. Wife's allegations about husband's conduct were inf lam- matory. Claim for unequal divi- sion of net family property did not offend rule, nor did refer- ence to husband's affair. Frick v. Frick (2016), 2016 CarswellOnt 16670, 2016 ONCA 799, Alexandra Hoy A.C.J.O., P. Lauwers J.A., and M.L. Benotto J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 2503, 2016 ONSC 359, Ellies J. (Ont. S.C.J.). Insurance AUTOMOBILE INSURANCE Catastrophic impairment Claim for non-pecuniary loss was barred Plaintiff commenced action for damages sustained in mo- tor vehicle accident. Following accident, plaintiff underwent right knee replacement and right shoulder rotator cuff re- pair. However, there was evi- dence that plaintiff experienced osteoarthritis and degenerative changes in her right shoulder and right knee prior to accident. Jury awarded zero damages and judge ruled that claim for non- pecuniary loss was barred on basis that injuries did not fall with exceptions to statutory immunity provided for by In- surance Act. Plaintiff appealed. Appeal dismissed. It was open to jury to conclude injuries were not caused by accident and that plaintiff was not entitled to damages. Jury was entitled to accept expert evidence that plaintiff 's post-accident diffi- culties were inevitable given her prior conditions. Correction in charge to jury did not leave jury with misapprehension as to duties or principles to apply in reaching verdict. Argument that trial judge failed to consider ma- terial evidence was not accepted. There was ample evidence on which trial judge could rely on to find threshold was not met, par- ticularly in light of jury award. Jugmohan v. Royle (2016), 2016 CarswellOnt 17318, 2016 ONCA 827, R.A. Blair J.A., Glo- ria Epstein J.A., and Grant Hu- scroft J.A. (Ont. C.A.). CLAIMS Payment of insurance proceeds Insured's application for interest on arrears was granted Statutory accident benefits. In- sured was injured in motor ve- hicle accident in January 2004. In 2006, insurer ceased paying attendant care and housekeep- ing benefits on basis that insured did not sustain "catastrophic impairment" within meaning of Statutory Accident Benefits Schedule (SABS). In 2013, in- surer conceded that insured had sustained catastrophic impair- ment but refused to pay inter- est on arrears of attendant care benefits from August 2005, and housekeeping benefits from January 2006. Application judge granted insured's application for interest. Judge held it would be inequitable to deny insured interest on costs she incurred as result of her delayed catastroph- ic injury determination. Judge found that insured had been catastrophically impaired since accident. Insurer appealed. Ap- peal dismissed. Insurer's argu- ment that additional payments were not due until insured made application for determination was rejected as judge accepted that insured had been cata- strophically impaired since ac- cident. Insurer argued for first time on appeal that insured was not catastrophically impaired at time of accident, and that her injuries did not deterioriate to that level until 2013, without adducing any fresh evidence on point. It would be exceedingly unfair to permit insurer to chal- lenge on appeal factual issue that it could and should have con- tested before application judge. Payment of interest was part of SABS compensatory regime, was not dependent on good or bad faith of any party, and was not meant to be punitive to in- surer. There was no evidence that insured acted in manner to prevent insurer from assessing her entitlement to catastrophic impairment benefits. Insurer had options to manage its risk and could not now argue preju- dice because of passage of time. Van Galder v. Economical Mutual Insurance Co. (2016), 2016 CarswellOnt 16686, 2016 ONCA 804, John Laskin J.A., J. MacFarland J.A., and L.B. Rob- erts J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 7626, 2015 ONSC 3261, Stanley Ker- shman J. (Ont. S.C.J.). Law Enforcement Agencies POLICE Duties, rights and liabilities of officers Independent Police Review Director acted outside of jurisdiction During investigation of alleged destruction or removal of docu- ments relating to cancellation of gas plant contract, provincial police force officer prepared ma- terial to obtain search warrant to seize hard drives of computers from premier's office, includ- ing Information to obtain (ITO) asserting there was reason to believe premier's chief of staff committed breach of trust by arranging for documents to be erased from hard drives. Offi- cer also gave sworn evidence at Standing Committee on Justice Policy (Committee). Based on allegation that LM was involved, criminal charges were laid against LM. LM complained to Independent Police Review Director (Director) that officer falsely suggested through sworn statement and sworn testimony that LM refused to assist force in investigation. Parties agree LM refused to give statement to police and that she would only give statement if guaranteed im- munity. Director ordered police commissioner to conduct mis- conduct hearing under Police Service Act as to whether officer was guilty of neglect of duty in relation to evidence given before Committee and information omitted from ITO. Commis- sioner brought application to quash order. Application grant- ed; decision ordering miscon- duct hearing quashed. Director acted outside his jurisdiction in ordering hearing on neglect of duty. Facts relating to failure to disclose in ITO reasons why LM declined to provide state- ment to police were incapable of supporting charge of neglect of duty and it could not possibly amount to police misconduct. There could be no relevance in any reason or precondition giv- en for anyone's refusal to provide statement. With respect to not disclosing to Committee condi- tion LM imposed on providing statement, there was no duty to volunteer information that was reasonably considered by officer to be extraneous and unfair. Ontario Provincial Police Commissioner v. Independent Police Review Director (2016), 2016 CarswellOnt 16380, 2016 ONSC 6402, Molloy J., Nord- heimer J., and Horkins J. (Ont. Div. Ct.). Municipal Law MUNICIPAL LIABILITY Practice and procedure Driver's action against town was dismissed by summary judgment Plaintiff driver was involved in single vehicle accident when she struck curb stone on road, adjacent to grassy boulevard. In 1974, city assumed jurisdiction of road, which was boundary between city and town. Driver brought action against both city and town. Town successfully brought motion for summary judgment, alleging that curb stone emanated from land under city's exclusive jurisdiction. City appealed. Appeal dismissed. There was no dispute that at time of accident the curbstone was in curb lane of street and that city had obligation under s. 44 of Municipal Act ("Act") to keep roadway in state of repair that was reasonable in circum- stances. To extent that motion judge might be argued to have said more than this at paragraph 23, issue was not res judicata. Motion judge was clear that he made no binding determina- tion of whether or not Toronto breached obligation under s. 44. Therefore, there was no risk of inconsistent finding at trial. Laughlin v. Esmaeili (2016), 2016 CarswellOnt 17300, 2016 ONCA 826, Alexandra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 Carswel- lOnt 14590, 2015 ONSC 5490, M.L. Edwards J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Relationship with others Action against lawyer was frivolous and abuse of process Applicant brought claim against lawyer GJ who represented ap- plicant's former spouse in family law proceedings, and her current lawyer, KJ. Statement of claim alleged GJ's conduct caused applicant delays, distress and hardship in proceedings. Appli- cant alleged GJ threaten, by tele- phone, to "make him pay" if he did not consent to adjournment, and misled court about whether applicant was present on pre- vious court date. Applicant's complaint to law society was investigated and file was closed. Applicant's claim was struck. Applicant appealed. Appeal dis- missed. "Complete case history" which applicant alleged motion judge failed to consider, and which consisted of communi- cations about applicant's griev- ances against lawyers in family law proceedings and to law so- ciety, was irrelevant to whether claim disclosed cause of action. As to whether claims were abuse of process, applicant's other pro- ceedings were relevant, and con- firmed that applicant was seek- ing to relitigate matters already decided against him in family law proceedings and disposition of law society complaint. Motion judge was correct in conclud- ing that allegations of breach of duty to court or breach of Rules of Professional Conduct would not support cause of action in favour of applicant against law- yers. Motion judge stated that it would be outrageous for lawyer to be sued because of perceived delays or delay tactics made on behalf of client in family law pro- ceeding, and there was no actual or apprehended bias. There was no error in conclusion that ac- tion against KJ, based solely on allegations of delay in family law proceedings, was frivolous and abuse of process. Reilly v. Johnson and Junger Law Firm (2016), 2016 Carswel- lOnt 17497, 2016 ONCA 768, G.R. Strathy C.J.O., H.S. LaFor- me J.A., and K. van Rensburg J.A. (Ont. C.A.). Real Property CONDOMINIUMS Termination Agreement of purchase and sale was terminated Purchasers agreed to purchase condominium unit from vendor pursuant to agreement of pur- chase and sale (APS). Amend- ment agreement was executed establishing closing date of Janu- ary 31, 2012 and giving vendor unilateral right to extend closing for up to two months. On Febru- ary 17, 2012, S wrote to purchas- ers on behalf of vendor establish- ing closing date of February 24, 2012. S's letter enclosed interim statement of adjustments that disclosed 40 per cent increase in common expenses attributable to purchasers' unit. Purchasers wrote to S taking position that in- crease in common expenses con- stituted material change to dis- closure statement. S assured pur- chasers that they did not have to be concerned about closing until they "sorted this out", but thereaf- CASELAW

• Cover