Law Times

Law Times • sepTember 17, 2012 casino was running illegal roulette game. Plaintiffs claimed damages in tort and contract and for mis- representation under Consumer Protection Act (Ont.). Casino brought action for gambling loans that were not repaid. Defendants brought motions for summary judgment. Motions were allowed. Actions were dismissed. There were no genuine issues requiring trial. Even if floating ball rule was rule of play and was not approved as statutorily required, plaintiffs' claim in restitution to recover moneys bet on roulette games had no chance of success because every time spin was stopped to remove floating ball, dealer returned players' bets before new game was played. There was no enrichment and no deprivation. Moreira v. Ontario Lottery and Gaming Corp. (Apr. 30, 2012, Ont. S.C.J., Belobaba J., File No. CV-08-352327; CV-08-356748) 216 A.C.W.S. (3d) 346 (9 pp.). Contracts FRANCHISE AGREEMENTS Franchisor failed to disclose Claim by franchisee for rescission of master franchise agreement and damages for failure of defendant franchisor to comply with disclo- sure obligations and damages for breach of duty of fair dealing. Trial proceeded in absence of defen- dants. Franchisee was master franchisee of franchisor in prov- inces of Ontario, New Brunswick, Nova Scotia and Prince Edward Island. Judgment for plaintiff for damages of $201,735 including $25,000 for breach of fair dealing. Purported disclosure document delivered aſter payment of master franchise fees and not at least 14 days before payment. Document delivered aſter execution of letter of intent and not at least 14 days before it was entered into. Docu- ment was not delivered as one document at one time but was delivered in piecemeal fashion with draſt agreements delivered separately. Document did not have any financial statements, did not include copies of all proposed franchise agreements and other agreements relating to franchise. Document was sent by e-mail, a method not permitted by Act. Failure to include open- ing balance sheet in disclosure document where franchisor just starting its operations or finan- cial statement for franchisors that have been in business for at least a year fatal to defence of franchisor facing rescission claim. Franchi- sor failed to disclose true state of affairs of franchise system and in particular fact that it was in state of rapid decline. Franchisor failed to respond to reasonable requests for information and assistance aſter letter of intention signed and franchise fee paid. Franchi- sor failed to perform obligation of good faith. Burnett Management Inc. v. Cuts Fitness for Men (June 6, 2012, Ont. S.C.J., Whitaker J., File No. CV-05-301869-0000) 216 A.C.W.S. (3d) 356 (11 pp.). that franchise system in state of rapid decline Employment WRONGFUL DISMISSAL Plaintiff ' Plaintiff did not receive warnings about plaintiff ' of sanction but not sufficient to warrant dismissal s comments deserving as office manager. Relationship between plaintiff and owner deteriorated. Plaintiff wished to purchase company but owner refused. Owner indicated owner could not have plaintiff as office manager anymore but plain- tiff could stay on as accountant. Owner changed plaintiff ' neration. Plaintiff indicated changes were not acceptable to plaintiff. Plaintiff brought action for wrongful dismissal. Owner had conversation with former boss aſter plaintiff ' s remu- s performance CASELAW which would be contrary to best interests of child. Catholic Children' of Toronto v. M. (M.) (May 30, 2012, Ont. C.J., Sherr J., File No. C51951/10) 216 A.C.W.S. (3d) 381 (8 pp.). s Aid Society Expropriation and discovered plaintiff made remarks that were critical of owner. Plaintiff had judgment in amount of $256,902. Plaintiff did not resign position. Plaintiff ' s termination comments to former boss about owner were deserving of sanc- tion but were not of sufficient gravity to warrant dismissal. Owner attempted to unilater- ally change fundamental terms of employment contract and thereby repudiated contract. Plaintiff properly mitigated damages by looking for employ- ment elsewhere before obtaining employment on part-time basis. Loyst v. Chatten' s Service (May 7, 2012, Ont. S.C.J., McEwen J., File No. CV-09- 378679) 216 A.C.W.S. (3d) 378 (14 pp.). s Better Hearing Evidence Motion by Society for leave to introduce opinion evidence of psychiatrist in child protection proceedings. Society wished to have expert qualified as expert in parenting of young children and impact of substance abuse on such parenting. Parents charged with assaulting siblings. Psychiatrist had never met child or parents. Application dis- missed. Evidence not relevant or necessary. Court quite capa- ble of drawing inferences from evidence that would be consis- tent with many of conclusions society sought to obtain from psychiatrist. Nature of evidence not outside experience of trier of fact. Psychiatrist not quali- fied as expert in area of expertise tendered. No mention of psy- chiatrist having worked in area of addictions or substance abuse or impact of addictions and substance abuse on parenting of children. Prejudice to admis- sion of evidence as parents only given six days notice and had limited means to respond to evidence. Prejudice to child if case adjourned to permit par- ents opportunity to respond to evidence. Child in care well in excess of statutory timelines. Admission of evidence could derail trial process and delay permanency planning for child Nature of evidence not outside experience of trier of fact OPINION EVIDENCE Respondents owned land in section of Windsor designated as area of natural and scientific importance. Following environ- mental evaluation report, city approved official plan for resi- dential community encircling the area, which required city to acquire certain lands owned by respondents. Respondents did not object, provided they were fairly compensated. City expropriated 267 lots owned by respondents. Ontario Munici- pal Board ordered city to pay respondents for market value of expropriated lands and for injuri- ous affection to lands remaining in respondents' ownership. Majority of Divisional Court dismissed city' Board should have focused exclusively on damages caused by acquisition COMPENSATION mining there was evidence to support board' but for expropriation scheme, which began in 1983 and cul- minated in taking of lands beginning in 2004, respondents' lands would have been serviced and would have achieved form of development and that develop- ment and servicing of remaining lands would be more costly as direct result of expropriation. Dissenting justice held that in concluding that lands could have been fully developed, board unreasonably ignored impact of Provincial Policy Statements ("PPS") on ability of lands to be developed, contrary to Planning Act (Ont.). PPS not part of expro- priation scheme and should have been disregarded for purpose of market value assessment. Result not justifiable because assess- ment of damages for injurious affection focused on reduction in market value of remaining lands caused by entire expropriation scheme, rather than reduction caused by actual acquisition. Appeal allowed. In determining market value, Expropriations Act (Ont.), requires board to eliminate increase or decrease in value of property arising from expropriation. Board held that expropriation scheme included identification and designation process that commenced in 1983, but failed to address PPS or how its existence would have affected probability of lands being devel- oped. City conceded PPS, part of province-wide legislative scheme, not part of expropria- tion scheme. If board considered PPS to be part of expropriation scheme, that conclusion not supported by evidence. Nor did evidence support conclusion that PPS had no effect on market value of expropriated lands. Damages for injurious affection must be caused by actual acquisition of s appeal, deter- s conclusion that www.lawtimesnews.com expropriated lands; implications on market value of wider expro- priation scheme not relevant. Board' between approach to market value assessment and approach to assessment of injurious affection damages resulted in fundamen- tally flawed assessment of those damages. Board erred in treating entire expropriation scheme as crucial to both market value and to assessment of injurious affec- tion damages. Board should have focused exclusively on damages caused to remaining properties by city' s failure to distinguish lands. Windsor (City) v. Paciorka Lease- holds Ltd. (June 22, 2012, Ont. C.A., Doherty, LaForme JJ.A. and Turnbull J. (ad hoc), File No. C54542) Decision at 334 D.L.R. (4th) 94, 202 A.C.W.S. (3d) 518, 104 L.C.R. 69 was reversed. 216 A.C.W.S. (3d) 383 (24 pp.). s acquisition of related Family Law Toronto Society brought motion to transfer case from Toronto Society to York Society. York Society was opposed to trans- fer arguing Toronto Society was best positioned to retain carriage of case given lengthy history of matter and it would be unrea- sonable to burden York Society with matter given York Society' More convenient for children to attend in territorial region where they resided CHILD WELFARE caseload and other resource limi- tations. Mother opposed transfer. Mother lived in Toronto. Chil- dren did not have contact with mother for more than three years. Preponderance of con- venience favoured transfer to York Region, to Family Court, Ontario Superior Court of Justice. Children were living with father in York Region for four years. It would be more convenient for children to attend in territorial region in which children resided. Best evidence as to how children were progressing was in territorial region where children resided. There would be no delay in prog- ress of case if it were transferred. Father would find it more conve- nient to attend in York Region. Toronto Society no longer had protection concerns with respect to father. Mother had temporary custody order in mother' s Return of children to mother's s favour. care would expose children to real risk of emotional harm. Transfer- ring matter to Superior Court of Justice in York Region would lace child protection proceeding and any motion made under Divorce Act (Can.), before single judge who would have jurisdiction to make orders appropriate in best interests of children. Catholic Children' Toronto v. H. (L.) (May 17, 2012, Ont. S.C.J., Spence J., File No. C41819/06) 216 A.C.W.S. (3d) 386 (17 pp.). s Aid Society of Motion by society for summary judgment and findings that two Current undertakings of father rang shallow PAGE 19 children both under age of six are in need of protection and that children be made Crown wards with no order as to access for purposes of adoption. Children abandoned by mother in April 2011. Only plans before court were plan of father and plan of society. Father had history of violent behaviour and criminal record dating back to 1989, non- compliance with court orders, non-co-operation with society, non-compliance with medica- tion to address his mental health condition, and substance abuse. Father had unstable lifestyle given frequent incarcerations and very limited family support to assist him with care of children. Father exercised very structured access to children. Father had enrolled in parenting courses. Children had special needs. Application granted. Father had virtually absented himself from care and needs of children since they came into care. Current undertakings of father rang shallow. Trial would not alter fact and their impact on lives of children. Father had not done what was necessary to place his own life in order and develop sufficient maturity to assume responsibility to care for his children. Case of unrebutted evidence of domestic violence which may outweigh consider- ation of any other factor in best interests analysis. Society had led evidence that established prima facie case. No genuine issue for trial on issues of placement and access to children. Father failed to adduce evidence that ongoing relationship with children bene- ficial and meaningful to children. Catholic Children' ety of Toronto v. S. (I.) (May 30, 2012, Ont. C.J., Zuker J., File No. C49346/09) 216 A.C.W.S. (3d) 387 (30 pp.). s Aid Soci- Parties were married two years and had one child. Mother had sole custody and father had access. Father was required to pay child support of $299 per month based on estimated salary of $34,175. Father remarried and was self-employed. Mother remarried and had second child. Father did not comply with dis- closure order. Mother argued father's income was higher. Father' Father deliberately organized business affairs to camouflage income CUSTODY he admitted. Father deliberately organized business affairs to cam- ouflage income and exaggerate expenses to shield himself from support obligations. Father per- sisted in business that he claimed was losing money. Income of $38,520 was imputed to father for 2006. Father earned $78,854 for 2007 to 2009. Income of $55,000 was imputed to father for 2010. Parties were to arrive at what amount was payable by father. Parties were to share transporta- tion of child for access visits. Elder v. Dirstein (May 14, 2012, Ont. S.C.J., Baltman J., File No. 406-10) 216 A.C.W.S. (3d) 427 (17 pp.). s income was greater than LT

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