Law Times

Law Times • January 16, 2017 Page 15 www.lawtimesnews.com issue requiring trial where judge is able to reach fair and just de- termination on merits and where material filed on motion allows judge to make necessary findings of fact; allows judge to apply law to facts; and is proportionate, more expeditious and less expensive means to achieve just result. Rule 20.04(2.1) of Rules of Civil Pro- cedure provides summary judg- ment motion judge with number of powers enabling weighing of evidence, evaluation of credibil- ity, and drawing of reasonable in- ferences. Motion judge properly followed that approach. There was ample evidence to support motion judge's finding that plain- tiff was not B Inc. employee and had no contractual relationship with it. Motion judge properly applied law on piercing corporate veil. Motion judge's findings were entitled to deference. Reasons as whole made it clear why conspir- acy claim could not stand on evi- dence and was dismissed. Breach of confidence and invasion of privacy claims were related to conspiracy claim and were prop- erly dismissed on R. 20 principles. There was no basis to interfere with motion judge's conclusion that claim against university con- stituted abuse of process. Fernandes v. Carleton Uni- versity (2016), 2016 CarswellOnt 16074, 2016 ONCA 719, K.M. Weiler J.A., Robert A. Blair J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 8757, 2015 ONSC 3373, Patrick Smith J. (Ont. S.C.J.). Estates and Trusts ESTATES Testamentary instruments Estate's appeal regarding validity of secondary will was allowed Testatrix executed primary and secondary will for which she pro- vided instructions to her long- time solicitor who had prepared several previous wills for her. As result of clerical errors, secondary will contained mistakes and in- cluded revocation clause revoking all other wills, which included pri- mary will. Order was made recti- fying secondary will nunc pro tunc such that revocation clause was amended to exclude primary will from its operation, duplicated specific bequests were deleted and intended residue clause was included. On application to re- move objection to appointment of estate trustee to primary will, application judge found that sec- ondary will was not valid. Estate appealed. Appeal allowed. It was implicit in order for rectifica- tion of secondary will, which was made nunc pro tunc, that judge determined that secondary will was valid. Application judge's rea- soning was circular because deci- sion to rectify secondary will was based on finding that secondary will had not been read and find- ing could not then be used to find secondary will as rectified invalid. McLaughlin Estate v. McLaughlin (2016), 2016 Car- swellOnt 18502, 2016 ONCA 899, Janet Simmons J.A., S.E. Pepall J.A., and Grant Huscroft J.A. (Ont. C.A.); reversed (2015), 2015 CarswellOnt 9800, 2015 ONSC 4230, David Price J. (Ont. S.C.J.). Health Law CONSENT AND CAPACITY Capacity Consent and Capacity Board applied proper test for capacity Psychiatrist proposed to treat patient's bipolar schizoaffective disorder with anti-psychotic and mood stabilizing medications. Patient objected to treatment due to side effects. Patient claimed any manifested symptoms displayed were result of fibromyalgia and sleep apnea rather than mental health condition. Appellate judge upheld Consent and Capac- ity Board's (Board) decision that patient was unable to appreciate consequences of her decision to reject proposed treatment. Patient appealed. Appeal dismissed. Ap- pellate judge did not err in find- ing board applied proper test for capacity. Decision was based on review of board's reasons as whole rather than isolated passages relied upon by patient. Board's finding that patient suffered from delusional and mood disorders caused at least in part by mental condition was available on record and was not unreasonable. There was no evidence patient failed to receive necessary information due to breakdown in physician and patient relationship. Coburn v. Wilkie (2016), 2016 CarswellOnt 18623, 2016 ONCA 876, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.). MALPRACTICE Negligence Doctor's appeal from liability finding was dismissed MB died on February 17, 2006 at hospital in Toronto from pneumococcal bacterial men- ingitis. He was 46 years of age. Respondents, his surviving wife and two daughters, sued two emergency room ("ER") physi- cians, appellant Dr. VJ and Dr. DS, in negligence, alleging that MB's death resulted from failure to properly investigate, diagnose and treat meningitis. Dr. VJ ap- pealed from liability finding against him, arguing that trial judge erred in both standard of care and causation analyses. Appeal dismissed. Trial judge's causation analysis was thought- ful and thorough. Faced with conf licting expert evidence on determination of MB's probable outcome had he received stan- dard treatment for meningitis, she declined to adopt actual outcome theory of causation, instead relying on medical stud- ies and statistical outcomes evi- dence. Assessment of conf lict- ing evidence was at core of trial judge's function. Trial judge's causation analysis and causa- tion finding in respect of Dr. VJ, which also attracted deference from court, were unassailable. Barber v. Humber River Regional Hospital (2016), 2016 CarswellOnt 18504, 2016 ONCA 897, E.A. Cronk J.A., R.G. Juri- ansz J.A., and L.B. Roberts J.A. (Ont. C.A.). Insurance EXTENT OF RISK (EXCLUSIONS) Casualty insurance Water damage to property was not covered by insurance policy Plaintiff insureds suffered water damage to their home, allegedly as result of heavy rain or leak in their plumbing. Defendant insur- er denied insureds' claim under homeowner's insurance policy. Insureds commenced action and brought motion for summary judgment for payment of claims. Motions judge dismissed motion and action. Judge held that water damage to property was not cov- ered by insurance policy. None of expert reports pointed to any damage caused by "sudden and accidental escape" of water within residential plumbing as required by policy. All reports concluded that water damage was related to grading issue and that basement f lood had been caused by water levels seeping through founda- tion. Judge found that this type of water entry fit under policy defi- nitions of ground water and sur- face water, and as such, any claim would be excluded irrespective of whether it occurred suddenly or over period of time. Insureds ap- pealed. Appeal dismissed. It was open to judge to accept expert opinion evidence that cause of water damage was ongoing seep- age of ground or surface waters caused by pre-existing wear and tear and construction defects. Insureds' insurance contract ex- pressly excluded damage caused by this kind of water seepage. In- sureds did not raise before judge allegations that water damage was caused by sewer back-up or that they had extended coverage, nor did they provide support for these allegations. Hojjatian v. Intact Insur- ance Co. (2016), 2016 Carswell- Ont 19091, 2016 ONCA 904, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 Car- swellOnt 5848, 2016 ONSC 2318, S.A.Q. Akhtar J. (Ont. S.C.J.). INSURABLE INTEREST Fire insurance Insurance was not conditional upon mortgagee having possession Defendant mortgagee S Corp. put in place its own fire insur- ance policy on plaintiff mort- gagor's property, issued by defendant insurer G Co., and charged premiums to mortgag- or. Before mortgagor was able to put in place financing needed to pay for settlement and discharge mortgage, house was dam- aged by fire. Mortgagee, which was also claims administrator for insurer, declined to process claim for indemnity. Mortgagor brought action against mort- gagee and insurer for damages under insurance policy and other damages. Mortgagee and insurer brought motions for summary judgment to dismiss mortgagor's claim, and for judg- ment on mortgagee's mortgage claim. Motions granted in part. Mortgagor had provided neces- sary proofs of claim to enable mortgagee to obtain payment of insurance proceeds. Mort- gagee's good faith and fair deal- ing obligations in relation to insurance policy it elected to acquire and charged mortgagor for extended to filing claim and collecting proceeds. Two condi- tions for attachment of insur- ance were present, as there was pending power of sale proceed- ing and no other insurance in place. Insurance was not condi- tional upon mortgagee having possession. Mortgagee suffered direct loss when property sub- ject to its security was damaged. Property covered was building, not loan obligation for which property stood as security. Upon receipt of insurance proceeds it failed to ask itself to pay, mort- gagee was obliged to apply them in stipulated way that would have directly or indirectly bene- fited mortgagor. Mortgagor had standing to enforce mortgagee's obligations to him. It would not be fair to make final ruling on whether mortgagor was "addi- tional insured" so insurer's mo- tion and mortgagor's action as it related to insurer were stayed. Mortgagee's alternative counter- claim relief to enforce settlement agreement was granted. Wilson v. Scotia Mortgage Corp. (2016), 2016 CarswellOnt 17911, 2016 ONSC 7000, S.F. Dunphy J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Appeal was dismissed with respect to motion judge's award of commission Employee's compensation was composed of base salary, com- mission income, and bonus, if any. Employee was primarily re- sponsible for selling advertising space in two magazines owned by predecessor employer. When successor employer ("employer") acquired assets of predecessor employer in 2015, it retained employee. Parties signed new employment contract in January 2015 essentially providing same salary, commission, bonus and benefits that employee had been receiving from predecessor em- ployer. Employer merged its pre- existing publication with one of predecessor employer's maga- zines, S, to form new publication, and, upon merging, employer's existing advertising contracts were handed over to employee so that he could arrange with clients to switch ads into new publication. Parties agreed that new agreement on commission was never reached. Employee was terminated without notice from employment and brought action for damages for wrong- ful dismissal. Trial judge deter- mined that period of reasonable notice was 16 months. Employer appealed with respect to amount that employee was entitled to re- ceive in compensation for failure to give him reasonable notice of termination. Commission in- come and bonus were relevant issues on appeal. Appeal allowed in part. Appeal was dismissed with respect to motion judge's award of commission but al- lowed with respect to payment of bonus to employee during peri- od of reasonable notice. Motion judge erred in awarding bonus for 2015. Evidence did not sup- port conclusion that employer promised employee that he would receive bonus regardless of company's profits. Evidence of employer's representative about payment of bonuses ought to have been read in context of en- tirety of his evidence that quali- fied it. Costs on motion were re- duced to $22,000 plus HST. Gadbois v. Newcom Busi- ness Media Inc. (2016), 2016 CarswellOnt 18792, 2016 ONCA 898, K.M. Weiler J.A., Paul Rou- leau J.A., and Lois Roberts J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 6967, 2016 ONSC 2310, Lederman J. (Ont. S.C.J.). Municipal Law BYLAWS Enforcement Permanent injunction was granted restraining respondents from contravening bylaw Respondent stopped extracting aggregate. Ministry of Natural Resources issued rehabilitation order. Ministry of Natural Re- sources revoked respondents' li- cence under Aggregate Resources Act. Respondent alleged he need- ed to truck fill onto property to rehabilitate it. Municipality suc- cessfully brought application for permanent injunction restrain- ing respondents from contraven- ing municipality's site alteration bylaw in connection with respon- dents' property. Respondents ap- pealed. Appeal dismissed. There was no error in application judge's conclusion that respondents could not ignore specific condi- tions of licence as described in site plans set out in requirements for final rehabilitation that did not permit importing of offsite materials. Evidence showed re- spondents were not interested in importing fill to remedy any deficiency in amount of available overburden. There was ample evi- dentiary support for application judge's findings that there was no provision in site plans for import- ing of fill onto site for rehabilita- tion purposes and 2007 rehabili- tation order clearly described how rehabilitation of site was to be done using onsite materials. Georgina (Town) v. Blanchard (2016), 2016 Carswell- Ont 17816, 2016 ONCA 846, G.R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.). CASELAW

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