Law Times

Law Times • sepTember 24, 2012 ing child Crown ward and plac- ing child for adoption. Children's Aid Society of Ottawa v. G. (May 1, 2012, Ont. S.C.J., Be- audoin J., File No. FC-08-3079-3; FC-08-3079-4) 216 A.C.W.S. (3d) 662 (12 pp.). Father brought motion for order for specified access to children. Mother argued father's access should be supervised. Mother claimed father was abusive to- ward mother during course of marriage. Written agreement unduly restrict development of relationship with father Supervised access would CUSTODY had joint custody with children having primary residence with mother. Father sought to set aside agreement. Oldest child did not want contact with father. Father claimed mother alienated child from father. Father was to have interim access to younger child. To order supervised ac- cess would unduly restrict de- velopment of relationship that children should have with father and would create artificial bar- riers between them. Older child would not be compelled by court order to go on access visits with father. Older child was free to go on visits with younger child. Ac- cess to older child was reviewable any time. Gulbranson v. Gulbranson (May 1, 2012, Ont. S.C.J., Gareau J., File No. 2199/11) 216 A.C.W.S. (3d) 670 (6 pp.). provided separation parties Mother moved with child uni- laterally to different city. Mother claimed relocation was out of fear of safety of mother and child on account of alleged abusive be- haviour by father. Father sought finding of contempt against mother and sought custody of child. In alternative father sought order requiring mother to return to original city with child to re- sume access previously ordered. Mother sought interim sole cus- tody. Mother was ordered to re- turn child to original city within specified time. If mother re- turned with child mother would continue to have primary care of child and father's access rights on unsupervised basis were to continue. Father made out prima facie case that mother was not justified in concluding safety was at risk requiring move. Father made out prima facie case that motion pursued course of con- duct intended to frustrate father's right to access. It was in child's best interests to remain in origi- nal city where father resided. No order as to custody was made un- til parenting capacity assessment was completed. Father was to pay child support of $680 based on income of $75,000 per year, which amount was in addition to amount of $250 agreed to be paid on monthly basis in accordance with order. Otari v. Cader Saibe Otari (Apr. 27, 2012, Ont. S.C.J., Annis J., File No. FC-11-2540) 216 A.C.W.S. (3d) 680 (9 pp.). In child's best interests to remain in city where father resided Final order required father to pay retroactive child support of $33,016; retroactive spousal support of $14,508; and ongo- ing spousal support of $510 per month. Order was made at settlement Conference judge misinformed father and bullied father into acquiescence SUPPORT father was self-represented. Or- der purported to be on consent but it was not. Conference judge misinformed father regarding father's legal obligations and effectively bullied father into acquiescence. Father was de- nied procedural conference where ceeding constituted breach of natural justice. Judge effectively prevented father from having meaningful participation fairness. Pro- process. Judge constantly inter- rupted father. Judge summarily pronounced opinion and con- clusions without supporting evidence. Lack of true consent vitiated terms of order in rela- tion to retroactive payment and ongoing spousal support. Para- graphs of order were set aside. Siahbazi v. Rastegar (Apr. 19, 2012, Ont. S.C.J. (Div. Ct.), Aston, Whitten and Corbett JJ., File No. 11-DV-1741) 216 A.C.W.S. (3d) 691 (5 pp.). in Insurance AUTOMOBILE INSURANCE Plaintiff ' Motion by defendant for decla- ration that plaintiff's injuries fit within any of statutory excep- tions to general immunity af- forded to defendants under s. 267.5(3) and (5) of Insurance Act (Ont.). Plaintiff was involved in automobile accident in 2006. Plaintiff commenced action for damages for personal injuries sustained. Motion granted. Ac- tion was dismissed. Plaintiff failed to establish on balance of probabilities that his injuries constituted one of exemptions set out in legislation. There was no evidence that plaintiff expe- rienced permanent impairment of psychological function. Plain- tiff's evidence about his pain and alleged limitations was neither credible nor consistent. Smith v. DeClute (June 6, 2012, Ont. S.C.J., Wilson J., File No. CV-08-00354066) 216 A.C.W.S. (3d) 741 (6 pp.). pain and limitations neither credible nor consistent be subject to contractual limitations Plaintiffs PROPERTY INSURANCE Unfair for plaintiffs to take contractual benefits but not building. Oil leaked from second floor furnace causing damage to building. Defendant insurer de- nied coverage initially on basis of pollution exclusion and later on other provisions in policy. Plain- tiffs argued defendant could not rely on policy exclusions be- cause defendant did not prove defendant owned commercial policy to plaintiffs. Cost of work required was $52,500. Plaintiffs were awarded $10,575 on ac- count of relocation costs. $5,410 delivered complete s evidence about his CASELAW was awarded on account of lost rent. Alleged failure to deliver should have been pleaded. Court would not consider plaintiffs' ar- gument in absence of pleading asserting non-compliance with condition precedent. There was no evidence policy was not deliv- ered. Plaintiffs asserted coverage under policy and it was unfair for plaintiffs to take contractual benefits but not be subject to contractual constituted waiver by insurer of proof of loss requirement. De- fendant did not plead failure to file proof of loss until three and one-half years aſter initial plead- ing. Statement of defence initially filed by defendant was further waiver of requirement. Amend- ing pleading did not nullify effectiveness of waiver. Defen- dant's refusal to pay meant de- fendant could not rely on failure to repair damage to property to defeat plaintiffs' claims to dam- ages based on replacement cost. Pollution exclusion was to be interpreted in favour of plaintiffs such that it excluded traditional environmental contamination. Oil remained within building and did not amount to tradition- al environmental contamina- tion. Mechanical-derangement exclusion did not bar recovery. There was no internal defect or problem in furnace. Policy was intended to cost zone of risk cre- ated by tenant doing something unintended or stupid. It was rea- sonable and necessary to replace floor, main beam, intersecting joists, drywall, store ceiling and ceiling tiles that had been satu- rated by oil. O'Byrne v. Farmers' Mutual In- surance Co. (May 8, 2012, Ont. S.C.J., Sproat J., File No. CV-06- 2589-00) 216 A.C.W.S. (3d) 745 (32 pp.). limitations. Letter Mortgages Motion for summary judgment by mortgagee for possession of properties that were subject mat- ter of mortgages and judgment on covenants Defendants knowledgeable and sophisticated in law POSSESSION Mortgages were all collateral to each other. Motion granted in part. Plaintiff was entitled to pos- session. Defendants' assertion that there were no mortgages was rejected. Defendants were knowledgeable and sophisticated in law and business. Defendants each executed respective ac- knowledgements and directions, and in doing so would under- stand that they signed debt doc- ument. There were no problems that had any effect on legality or validity of mortgages. Mortgages were properly registered. L-Jalco Holdings Inc. v. Murano (July 5, 2012, Ont. S.C.J., Polowin J., File No. CV-11-0020-A1) 216 A.C.W.S. (3d) 767 (20 pp.). on mortgages. Planning Deeds did not convey ownership because vendors were not owners of land BUILDING PERMIT www.lawtimesnews.com Parents purchased farm. Mother was sole surviving owner. Ap- plicant was spouse of one of children. Applicant was owner of part of land. With mother's consent children planned to do testamentary devise. Reference plan was registered. Legislation changed prior to mother's death so plan failed. Deeds were regis- tered on parts involving mem- bers of family. There was no con- veyance from mother on any of deeds to purchasers. Vendors on deeds were never registered own- ers of lands. Plan was to create first good deed and root of title in 40-year search period. Plan was to do further deeds that were ar- ranged so that no adjoining lands were owned by same person or conveyed to person who owned adjoining lot. Statements re- sulted in contravention of Plan- ning Act (Ont.), for parts created and so conveyed. Mother acqui- esced in scheme and informed Town mother had not interest or quarrel with ownership. Town refused to grant building per- mit on basis that such would be contrary to any other applicable law and there was question as to legality of deed. Application was dismissed. Deeds did not convey ownership because vendors were not owners of land. Actions by parties involved were deceitful and fraudulent to knowledge of applicant. First deeds registered on land were not in compliance with Registry Act (Ont.). Subse- quent deeds could not validate deeds in which both transferor and transferee had actual knowl- edge that vendor of lands or im- mediate predecessor in title had no title to land. Matwijow v. Pelham (Town) (Apr. 26, 2012, Ont. S.C.J., Tucker J., File No. 14764/03) 216 A.C.W.S. (3d) 773 (9 pp.). Professions Appellant was lawyer who prac- tised in criminal defence work. Defendant was charged with serious criminal offence of ob- structing justice. Appellant was arrested and granted bail. Term of recognizance of bail was appellant was not to practise criminal law except while under immediate supervision of mem- ber in good standing of society. There was allegation appellant breached recognizance with respect to term. Society found allegation of professional mis- conduct proven. Appeal Panel upheld finding of professional misconduct, professional misconduct proven Society found allegation of BARRISTERS AND SOLICITORS and original costs award. Appeal was dismissed. Standard of proof in civil matters was balance of probabilities. There was nothing in record to show clear or obvi- ous error with respect to assess- ment of credibility. Disclosure breach had nothing to do with course proceeding took. Law Society of Upper Canada v. Mundulai (May 1, 2012, Ont. S.C.J. (Div. Ct.), Herold, Aston and Wilton-Siegel JJ., File No. penalty imposed PAGE 15 604/11) 216 A.C.W.S. (3d) 779 (11 pp.). Defendant retained plaintiff to represent defendant's interests in family law matter. Over two years defendant was billed $93,275. Defendant paid $18,366 and balance remained outstanding. Plaintiff brought action seeking payment of balance of outstand- ing accounts. Defendant brought counterclaim claiming plaintiff caused defendant plaintiff negligent regarding work undertaken Not sufficient evidence to find was negligent in work under- taken, breached confidentiality, and charged excessive amounts for work done. Fair and reason- able amount for work done was $50,500 in addition to amounts already paid to lose job, Amounts owing were reduced taking into account duplica- tion, amount of time expended on tasks, acknowledged errors, and amounts that by admission of plaintiff should not have been included. Counterclaim was dis- missed. There was no evidence to support allegation of termina- tion of employment caused by plaintiff or to support allegation of lost wages. There was not suf- ficient evidence to find plaintiff was negligent regarding work undertaken. Evidence was not sufficient to establish breaches of confidentiality. Parker v. Braid (Apr. 24, 2012, Ont. S.C.J., Brown J., File No. CV- 10-396687) 216 A.C.W.S. (3d) 782 (11 pp.). by defendant. Torts Plaintiff sustained personal in- juries while attending park. Bird hit overhead wires and then fell striking plaintiff on head. Plaintiff and defendant City of Burlington entered into Mary Carter agreement. Action was dismissed against Hydro. De- fendant Hydro was not liable for damages suffered by plaintiff. It was unnecessary to consider relative degree of responsibil- ity of defendant Burlington for plaintiff's injuries given existence of Mary Carter agreement. Indi- vidual was found not to be prop- erly qualified expert and reports were unnecessary. Reports were held to be inadmissible and in- dividual could not testify as ex- pert. Plaintiff did not establish reckless disregard of presence of persons on Hydro's part. There was nothing Hydro did or failed to do that rose to level of reckless disregard for plaintiff's presence on premises or which amount to action or inaction which was likely to cause damage or injury. Plaintiff did not establish defen- dant breached duty of care. De- fendant took all reasonable steps so persons using corridor were reasonably safe. Walker v. Burlington (City) (Apr. 30, 2012, Ont. S.C.J., Hourigan J., File No. 3053/08) 216 A.C.W.S. (3d) 802 (24 pp.). Defendant took all reasonable steps so persons using corridor were reasonably safe NEGLIGENCE LT

• Cover