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Page 14 February 6, 2017 • Law Times www.lawtimesnews.com cally that Z must have received final decision on her allegations of discrimination. Adjudication of allegations of discrimination in other case could not be used as substitute. Human Rights Commission misconceived ba- sis of SST-AD's dismissal of Z's appeal from decision of EI Com- mission. Had Canadian Human Rights Commission properly understood basis of SST-AD's dismissal and had it thought that decision in other case was conclusive on issue raised in Z's complaint, it could have prop- erly raised this with Z. Zulkoskey v. Canada (Min- ister of Employment and Social Development) (2016), 2016 Car- swellNat 6259, 2016 FCA 268, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and David G. Near J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 5329, 2015 CarswellNat 9125, 2015 FC 1196, 2015 CF 1196, Michael D. Manson J. (F.C.). Federal Court Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans There was no erroneous advice or administrative error Pension recipient obtained Canada Pension Plan (CPP) disability benefits and Disabled Contributor's Child Benefits (DCCB) in 1991 when he had three young children. Recipi- ent had fourth child in 1993 but did not apply for benefits for this child until 2011. Recipient's application for DCCB benefits for child was approved and he was provided with 11 months of retroactive DCCB benefits, which was maximum permitted under legislation. Recipient's at- tempts to challenge this decision were unsuccessful. Delegate of Minister of Employment and Social Development Canada determined that no erroneous advice or administrative error had been made that resulted in denial of additional benefits. Second delegate made same de- termination. Recipient brought application for judicial review of delegate's decision. Applica- tion dismissed. Delegate's de- cision was not unreasonable. Recipient's initial application kit clearly indicated that it was necessary to make written ap- plication for benefits for childre. Recipient's complaint that he did not receive sufficient advice was not basis for relief under s. 66(4) of Canada Pension Plan. Recipi- ent's honest but mistaken under- standing that he did not have to apply for benefits for youngest child did not entitle him to relief. There was no legal obligation on part of Employment and Social Development Canada to inform individuals of their entitlement to benefit or to remind recipi- ents of their obligation to inform Department of any changes to status. Consiglio v. Canada (Attor- ney General) (2016), 2016 Car- swellNat 6262, 2016 FC 1123, Anne L. Mactavish J. (F.C.). Ontario Civil Cases Bankruptcy and Insolvency DISCHARGE OF BANKRUPT Conditional discharge Condition imposed was not unreasonable Bankrupt misappropriated over $5 million from clients while employed as investment advisor by creditor. Bankrupt was or- dered to pay restitution to credi- tor but did not do so. Creditor petitioned bankrupt into bank- ruptcy and filed proof of claim for amount it had reimbursed its clients. During bankruptcy, bankrupt received disability payments of $13,000 to $15,000 per month but paid no surplus income. Master ordered that, as condition of discharge, bank- rupt was to pay $284,346 to Trustee as surplus income up to certain date, payable at $5,000 per month. Master also ordered bankrupt to pay additional $5,000 per month to Trustee for further six years, referring to amounts as surplus income payments. Master suspended discharge from bankruptcy for two years, subject to payment of surplus income. Bankrupt appealed, alleging Master erred in ordering him to pay further $5,000 per month of "surplus in- come" for six years as condition of discharge. Appeal dismissed. When viewed in their entirety, Master's reasons did not refer to surplus income within meaning in s. 68 of Bankruptcy and Insol- vency Act but instead referred to income which is available for payment pursuant to condition of bankrupt's discharge under s. 172 of Act. Master was clear that further payment was im- posed as condition of bankrupt's discharge without any reference to surplus income under s. 68. Condition imposed was not unreasonable. Duration of pay- ments was not unduly long. Cir- cumstances of case were excep- tional, both in terms of breach of trust and fraud that gave rise to creditor's claim and in terms of amount of claim. Cole v. RBC Dominion Se- curities Inc. (2016), 2016 Car- swellOnt 19513, 2016 ONSC 7110, H.J. Wilton-Siegel J. (Ont. S.C.J.). Business Associations LEGAL PROCEEDINGS INVOLVING BUSINESS ASSOCIATIONS Practice and procedure in proceedings involving corporations Appeal was transferred to Divisional Court Shareholders commenced ac- tion against corporations in negligence for failing to prevent or detect fraud. Corporations moved to strike portions as amended statement of claim. In response, shareholders moved under s. 246 of Ontario Business Corporations Act (Act) for leave to commence derivative action. Motion judge found sharehold- ers' motion was statute-barred by virtue of s. 4 of Limitations Act, 2002. Shareholders ap- pealed to Ontario Court of Ap- peal. Appeal transferred to Di- visional Court. Order under ap- peal was order within meaning of s. 255 of Act, and appeal lay to Divisional Court. 1186708 Ontario Inc. v. Ger- stein (2016), 2016 CarswellOnt 18627, 2016 ONCA 905, E.E. Gil- lese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.). NATURE OF BUSINESS ASSOCIATIONS Nature of partnership Action for unpaid commissions was dismissed Plaintiff K commenced ac- tion against several defendants, claiming amount of unpaid commissions in amount of $100,000 that he claimed were owing to him by defendants for his services of identifying and acquiring leases for three loca- tions upon which rooftop so- lar systems were built by one of defendants. One of defendants brought motion to have action dismissed. Motion granted. K appealed. Appeal dismissed. One ground of appeal was that judge erred by not finding that G Inc. and F Inc., two of defen- dants were partners. Motion judge was correct that, with re- spect to s. 15 of Partnerships Act (Ont.), that K plaintiff was not aware of F Ltd.'s existence until long after he had agreed to work for G Inc.. Legal relationship was between K and G Inc., not K and G Inc. and F Ltd.. Kideckel v. Glenbarra Re- newable Energy Solutions Inc. (2016), 2016 CarswellOnt 19346, 2016 ONCA 932, Doherty J.A., J.C. MacPherson J.A., and P. Lauwers J.A. (Ont. C.A.); af- firmed (2015), 2015 CarswellOnt 16807, 2015 ONSC 6033, M.D. Faieta J. (Ont. S.C.J.). Commercial Law SALE OF GOODS Buyer's remedies Rescission of agreement to purchase motor vehicle was granted Plaintiff successfully brought action for damages in relation to purchase of motor vehicle. Deputy judge granted rescission of agreement to purchase motor vehicle, ordered defendant to pay plaintiff $7964 and ordered plaintiff to return motor vehicle. Defendant appealed. Appeal dis- missed. Bill of sale was required by law, under Motor Vehicle Dealers Act and its minimum contents were also prescribed by that statute. Absence of bill of sale or late provision of one, con- stituted breach by seller of what was promised to buyer. That breach was unfair sales practice, as defined by s. 14 of Consumer Protection Act and remedy of rescission properly f lowed to buyer. In absence of authority to contrary, deputy judge was entitled to find that dealership's promise that it would provide bill of sale amounted to repre- sentation as defined by Act. 1515471 Ontario Inc. v. Da- vidson (2016), 2016 CarswellOnt 19220, 2016 ONSC 7596, James W. Sloan J. (Ont. Div. Ct.). Contracts CONSTRUCTION AND INTERPRETATION Resolving ambiguities Trial judge properly considered parties' subsequent conduct Plaintiff stock broker worked as investment advisor for defen- dant company in its retail group. Defendant entered into agree- ment with plaintiff. Plaintiff claimed agreement entitled him to certain compensation for any deal sourced by him, including those involving capital markets, while defendant alleged agree- ment involved retail group and had no application to capital markets transactions. Plaintiff brought action, which was dis- missed. Trial judge found par- ties' agreement was ambiguous and considered factual circum- stances surrounding contract to interpret it and resolve ambigu- ity, including consideration of parties' conduct after formation of contract. Plaintiff appealed. Appeal dismissed. Trial judge's interpretation of contract could not be reviewed on correctness standard absent any extricable error of law. Evidence of sub- sequent conduct should be ad- mitted only if contract remains ambiguous after considering its text and its factual matrix. As contract was ambiguous, trial judge properly considered parties' subsequent conduct to assess their evidence about in- tended scope of contract. Trial judge properly used evidence of parties' subsequent conduct to resolve any residual ambigu- ity in agreement, except for his reference to subsequent conduct forming part of factual matrix. Subsequent conduct must be distinguished from factual ma- trix, which only encompasses circumstances at time contract was made. Plaintiff identified no palpable and overriding error in trial judge's factual findings about parties' subsequent con- duct or extricable error of law in his interpretation of contract. Evidence was overwhelmingly consistent with interpretation of agreement as being inapplicable to capital markets transactions and with trial judge's conclusion that factual matrix of contract pointed to agreement with retail group, not capital markets. Shewchuk v. Blackmont Capital Inc. (2016), 2016 Car- swellOnt 18794, 2016 ONCA 912, George R. Strathy C.J.O., K.M. Weiler J.A., and David Watt J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12601, 2015 ONSC 5079, S.A.Q. Akhtar J. (Ont. S.C.J.). Estates and Trusts TRUSTS Express trust Court held that there was no written trust agreement At time when he was experienc- ing financial difficulties, and after obtaining legal advice, plaintiff transferred two cot- tage properties to friend and to his sister and brother-in-law, respectively, subject to right of repurchase. As part of resolv- ing his financial issues, plain- tiff sold house where he and his common law spouse were living and they moved to one of cot- tage properties. When plaintiff later repurchased two cottage properties, he directed that title be taken in name of his former common law spouse. Plaintiff and former common law spouse subsequently separated. Plain- tiff sued former common law spouse claiming that she held two cottage properties for him in trust, and plaintiff 's former common law spouse died be- fore action came to trial. At trial, plaintiff relied on discussions he alleged had occurred when cot- tage properties were transferred, on subsequent statements by his former common law spouse and on unsigned trust declaration regarding one of cottage prop- erties that had been prepared in 2013, and on cohabitation agreement that he and com- mon law spouse had entered into when they began living to- gether. Agreement specified in part that parties' original family residence or its substitute shall be owned by plaintiff, registered in plaintiff 's name and should remain exclusive property of plaintiff at all times. Plaintiff 's action was dismissed on basis that there was no written trust declaration for cottage proper- ties, that evidence fell short of establishing express oral trust, that claim based on express oral trust would be barred by s. 9 of Statute of Frauds and that there was no fraud on part of former common law spouse. Trial judge construed cohabitation agree- ment as whole and determined that plaintiff 's claim was barred by its provisions. Plaintiff ap- pealed. Appeal dismissed. Sepa- ration agreement was clear that substitute residence was to be registered in plaintiff 's name in order to be protected. Trial judge did not accept plaintiff 's version of events surrounding transfer of properties and found that evidence was not satisfactory to create express oral trust. Trial judge correctly found that there was no written trust agreement. Hartstein v. Ricottone Estate (2016), 2016 CarswellOnt 18704, 2016 ONCA 913, Janet Simmons J.A., S.E. Pepall J.A., and Grant Huscroft J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 2460, 2016 ONSC 1102, P.J. Fly- nn J. (Ont. S.C.J.). CASELAW

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