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Page 14 February 27, 2017 • Law Times www.lawtimesnews.com Jurisdiction. In child protection proceedings, children's aid so- ciety obtained order in Ontario Court of Justice varying father's access, pending trial, from un- supervised to supervised. Father appealed to Superior Court and appeal was dismissed after fa- ther's request for adjournment was refused. Father appealed. Appeal was quashed for lack of jurisdiction. Order of Ontario Court of Justice was interlocu- tory in nature and fact that or- der was subject of appeal did not change its fundamental nature. Both order of Ontario Court of Justice and order of Superior Court on appeal dealt with in- terim access pending trial. Order of Superior Court was interlocu- tory. Because order was interloc- utory, this court had no jurisdic- tion to hear appeal on it. Request to transfer appeal to Divisional Court under s. 110(1) of Courts of Justice Act was declined as it appeared that s. 19(4) of Act precluded appeal to Divisional Court. Rule 39(3) of Family Law Rules was procedural and did not, and could not, create right of appeal where none existed. Argument that court had inher- ent jurisdiction or some type of residual jurisdiction to hear ap- peal was without merit. M. (P.) v. A. (M.) (2016), 2016 CarswellOnt 20739, 2017 ONCA 6, E.E. Gillese J.A., R.G. Juriansz J.A., and David Watt J.A. (Ont. C.A.). DIVISION OF FAMILY PROPERTY Order for division of property Default order provided that matrimonial home be sold Husband's motion to set aside default order that matrimonial home be sold and that $400,000 be paid to wife by way of equal- ization was dismissed, as he failed to file answer or financial statement. Husband appealed, submitting that default order was in fact temporary or interim order and that motion judge mischaracterized it as final or- der. Appeal dismissed. History of proceedings showed persis- tent and deliberate failure by husband to respond to proceed- ings. All parties at set aside mo- tion treated default order as final order, as did motion judge. Ma- terials filed by wife in support of her motion for equalization order showed that her request was in substance for final de- termination of her equalization entitlement. Ticking of "tempo- rary" box on default order was inconsistent with its substance. Words "on account of " equaliza- tion payment could not convert what was in substance final or- der into temporary or interim order. Order did not use more conventional words "advance on equalization" to indicate that it was intended to be interim in nature. Husband's allegation of ineffective assistance of counsel was not made out, as evidence demonstrated that he failed to give appropriate or timely in- structions to move to set aside default order. Wife awarded her costs of appeal fixed at $30,000 inclusive. Jasinska v. Jasinski (2016), 2016 CarswellOnt 20594, 2016 ONCA 993, Robert J. Sharpe J.A., P. Lauwers J.A., and B.W. Miller J.A. (Ont. C.A.). DOMESTIC CONTRACTS AND SETTLEMENTS Validity Marriage contract was enforced Wife emigrated from Romania to Canada to marry husband. Husband insisted that parties enter marriage contract, and wife received independent le- gal advice beforehand. Terms of contract were translated into Romanian. Against her lawyer's advice, wife signed contract dated September 27, 1996, and parties agreed to separate prop- erty arrangement. Wife waived her right to spousal support save during short, post-separation period. In 2014, husband ap- plied for divorce order and wife sought to set aside marriage contract. Trial judge upheld va- lidity of contract save for pro- vision waiving wife's right to spousal support, which was set aside. Wife appealed on grounds including that husband did not comply with disclosure require- ments of Family Law Act and that trial judge erred in failing to exercise discretion in setting aside marriage contract. Hus- band cross-appealed costs deci- sion. Appeal dismissed; cross appeal dismissed. Trial judge explained why she exercised her discretion to enforce marriage contract notwithstanding hus- band's failure to comply with s. 56(4)(a) of Act. There was no palpable or overriding error in her findings of fact on issue and exercise of her discretion was entitled to deference in circum- stances. Shair v. Shair (2016), 2016 CarswellOnt 20380, 2016 ONCA 982, Doherty J.A., Da- vid Brown J.A., and Grant Hu- scroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 14332, 2015 ONSC 5816, Chiappetta J. (Ont. S.C.J.). SUPPORT Spousal support under Divorce Act and provincial statutes Spousal support was ordered in nominal amount Parties married in 1989 and separated in 2006. Parties had four children but only one re- mained child of marriage. Fa- ther was main income earner during marriage. Mother claimed father earned approxi- mately $50,000 per year on non-taxable basis. Mother was employed as band councillor with First Nation from 2007 to 2011 and from 2013 to July 2015, earning amount of $21,600 an- nually. Mother secured one- year contract as health support officer in May 2016 with annual income of $37,219. Mother was 54 with grade seven education. Mother was diabetic and unable to use her dominant hand on regular basis because of extreme pain. Mother brought applica- tion for, among other things, payment of spousal support. Application granted. Mother was entitled to spousal support. Mother contributed to career potential of father by looking after matrimonial home and caring for children. Mother's ability to support herself after present contract position ended was uncertain. Spousal support was ordered in nominal amount of one dollar per month, which could be revisited on motion to change. Sagutch v. Sagutch (2016), 2016 CarswellOnt 19271, 2016 ONSC 4379, D.C. Shaw R.S.J. (Ont. S.C.J.). Law Enforcement Agencies POLICE Duties, rights and liabilities of officers Action for false arrest and imprisonment was dismissed Plaintiffs who were father and son brought action against de- fendants including local police service, for damages for false ar- rest and imprisonment. Police service successfully moved to dismiss action as statute-barred. Father and son claimed that lim- itation period was improperly dealt with by motion judge. Fa- ther and son claimed that sum- mary judgment was inappropri- ate in subject case. Father and son claimed that costs judgment was inappropriate due to their means, and that litigation was in public interest. Father and son appealed from motion judg- ment, and moved for leave to appeal costs judgment. Appeal and motion for leave to appeal dismissed. Although charges against father and son were later withdrawn by Crown, this did not make arrest unlawful. Offi- cer had reasonable and probable grounds to make arrest, which was found to be objectively rea- sonable by motion judge. Officer was not bound to accept expla- nation of father and son of how they came to possess goods. Kolosov v. Lowe's Compa- nies Inc. (2016), 2016 Carswel- lOnt 20592, 2016 ONCA 973, E.E. Gillese J.A., J. MacFarland J.A., and S.E. Pepall J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 5627, 2016 ONSC 1661, Gregory J. Verbeem J. (Ont. S.C.J.). Municipal Law BYLAWS Miscellaneous City's conduct did not violate purchasing bylaws Plaintiff electrical contractor was, during certain periods, listed on roster of pre-qualified suppliers to be hired by city for work. Plaintiff alleged that it was denied contracts to perform electrical and traffic signaliza- tion work because city did not adhere to its purchasing bylaws. Procedure governing contract- ing was set out in series of four consecutive bylaws, which es- tablished different and more onerous requirements to be met as value of goods and services being purchased increased. De- partment staff were authorized to issue purchase order for pro- curements of under $10,000, whereas purchases above that amount required use of more formal quotation process. From 2006 onward, bylaws prevented contract splitting by provid- ing that contracts could not be divided into two or more parts to avoid requirements of bylaw. Plaintiff brought unsuccessful action against city, in which he argued that it had breached its bylaws by contracting with com- petitor without following com- petitive purchasing process set out in bylaws and by pervasive practice of contract-splitting. Plaintiff appealed on basis that trial judge erred in interpreta- tion of bylaws and made palpa- ble and overriding errors of fact in finding that city's conduct did not violate bylaws. Appeal dis- missed. Trial judge did not err in interpreting bylaws. Although bylaws had, since 2006, prohib- ited contract splitting, they did not specify scope of work that contract must cover. On reading of plain language of bylaws, city was free to determine scope of work encompassed by any con- tract it entered into. Purposes, goals and objectives of bylaws cannot all be realized in respect of every contracting decision. Trial judge properly conclud- ed that bylaws did not restrict amount of work that may be procured from single supplier and did not prevent city from using task-oriented approach to completing projects rather than contract-based approach. Trial judge concluded further that prohibition on contract-split- ting applied only to contracts and not to tasks. Trial judge's reasons were detailed and con- sidered, and were supported on record. Weinmann Electric Ltd. v. Niagara (Regional Munici- pality) (2016), 2016 Carswel- lOnt 20593, 2016 ONCA 990, Doherty J.A., David Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 11964, 2015 ONSC 4970, J.W. Quinn J. (Ont. S.C.J.). Professions and Occupations PROFESSIONS AND OCCUPATIONS Paralegals Motion for recusal was dismissed Applicant sought to be licensed as paralegal. Applicant brought motion that chair of law society hearing panel recuse herself. Law firm of which chair was member was acting for client that had dispute with person who was client of applicant and who was going to be good character wit- ness for applicant at hearing. Chair dissociated herself from any contact with matter, trans- ferring matter to another lawyer in firm and creating "firewall". Hearing panel dismissed mo- tion for recusal. Hearing panel denied application to be licensed as paralegal, principally on basis that applicant was ungovern- able. Appeal panel dismissed ap- peal. Applicant sought judicial review. Application dismissed. Appeal panel's finding that given chair's extremely limited involvement with matter there was no reasonable apprehen- sion of bias was reasonable find- ing. Applicant's argument that structure by which membership on appeal panel was determined compromised independence of appeal panel was rejected. Ap- peal panel members are selected by tribunal chair through Law Society Act. Independence of tribunal chair with respect to ad- judicative matters was expressly protected through agreement by which he was appointed. There was no basis to credibly suggest that appointment of tribunal chair or his selection of mem- bers of appeal panel did not en- joy requisite degree of indepen- dence in accord with principles of natural justice. Kopyto v. Law Society of Upper Canada (2016), 2016 CarswellOnt 19807, 2016 ONSC 7545, Nordheimer J., C. Horkins J., and Emery J. (Ont. Div. Ct.). Torts DEFAMATION Nature of defamation Blog posts were found to be libellous Plaintiff was one of group of stu- dents who was concerned about article about Muslims published in national newsmagazine. Stu- dents were concerned that Mus- lims were unfairly portrayed in article and they unsuccessfully tried to get magazine to publish response article. Plaintiff and other students brought com- plaint to Ontario Human Rights Commission, and two other complaints were brought by E, who was president of Canadian Islamic Congress, to human rights commissions of Canada and British Columbia. Canadian and Ontario commissions did not to proceed with complaint and British Columbia human rights commission dismissed complaints. Defendant was po- litical commentator, journalist, blogger, and critic of human rights commissions. Defendant published nine posts about plaintiff on his online blog, which served as basis for plain- tiff 's claim against defendant for libel. Trial judge found that posts were libellous of plaintiff and that any available defences were negated by fact that defen- dant was motivated by malice. Trial judge awarded $50,000 in general damages and $30,000 in aggravated damages. Defendant CASELAW

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