Law Times

Law Times • JuLy 24, 2017 Page 15 www.lawtimesnews.com CASELAW PARTIES Intervenors Solicitor granted leave to intervene on motion claiming solicitor negligence Defendant appealed order granting summary judgment. Defendant argued documentary record on motion was incom- plete due to negligence of former solicitor. Solicitor brought mo- tion for leave to intervene. Mo- tion granted. Interests of justice favoured complete evidentiary record. Addressing issue on full record could resolve potential claim against lawyer. Interven- tion would not cause prejudice to plaintiff. Defendant declared to have waived solicitor client privilege with respect to content of file and communications. SMTCL Canada Inc. v. Master Tech Inc. (2017), 2017 CarswellOnt 5019, 2017 ONCA 291, G.R. Strathy C.J.O. (Ont. C.A.). PRACTICE ON APPEAL Leave to appeal Bias should be raised before decision maker with opportunity to respond Motion judge set aside default judgment that had been granted. Plaintiff brought motion for leave to appeal. Motion dismissed. Ba- sis upon which plaintiff contend- ed that there was good reason to doubt correctness of decision below was that there existed, on record, reasonable apprehension of bias on behalf of motion judge. No merit was seen in that con- tention. There was no evidence that plaintiff 's counsel raised is- sue before motion judge. It was generally unfair for party to ad- vance claim of bias, on appeal, when party had not raised that issue before decision maker, who was alleged to be biased, and pro- vided opportunity for decision maker to respond. There was no evidence that would begin to satisfy test for finding of reason- able apprehension of bias. In any event, issue of whether default judgment should have been set aside did not raise issue of such importance that leave to appeal should be granted. Apollo Real Estate Ltd. v. Streambank Funding Inc. (2017), 2017 CarswellOnt 3733, 2017 ONSC 1667, Nordheimer J. (Ont. Div. Ct.); leave to appeal refused (2016), 2016 Carswel- lOnt 19339, 2016 ONSC 7449, T. McEwen J. (Ont. S.C.J.). Family Law CUSTODY AND ACCESS Joint custody Father's role could be marginalized by ordering sole custody to mother Parties married in 2003, had chil- dren in 2007 and 2009, separated in March 2011 and divorced in 2012. Parties had both re-part- nered. Father and his partner re- sided in same neighbourhood as children of marriage and mother lived in Ottawa. In 2011, par- ties signed separation agreement providing in part that parties would have joint custody of chil- dren, and that children would reside primarily with mother and that father would have reason- able access. Both parents agreed to discontinue mid-week access shortly after execution of agree- ment as they believed that it was disruptive to children and agreed that father would have children on alternating weekend access schedule. Pursuant to 2015 in- terim order, father's access was changed to every other weekend from Thursday after school to Tuesday morning. Father applied for joint custody of children and mother requested sole custody. Joint custody order was granted. Parents had history of com- munication when dealing with children's best interests and de- spite some disagreements, jointly made some major decisions. Both parents were good parents who could contribute to children's well-being and development. Father's role could be marginal- ized by ordering sole custody to mother and this was not in chil- dren's best interests. Despite dif- ferent parenting styles, both par- ents had loving relationship with both children and were in posi- tion to observe and consider what was in their best interests when making major decision. It was in children's best interests that both parents were involved in deci- sions pertaining to children's spe- cial needs. Their respective input was important so that both par- ents could consider options avail- able to children. Parties showed history of making decisions to- gether. Mother did not appreciate importance of father in children's lives and would not acknowledge that he was parent who cared for children despite observation of him at appointments, activi- ties and communications. There was no evidence that father or his partner had alcohol abuse issues. Parenting styles were diverse but not incompatible. Children both had special needs and parties would need to make decisions regarding their educational, psy- chological, and medical issues. Review of parenting schedule was to take place in July 2019. Campbell v. Lapierre (2017), 2017 CarswellOnt 3844, 2017 ONSC 1645, A. Doyle J. (Ont. S.C.J.). SUPPORT Spousal support under Divorce Act and provincial statutes Spousal support could result from creative equalization of net family properties Parties were married for 26 years and had two children who were independent. Wife continued to reside in matrimonial home, and husband resided in one unit of multiplex he owned that was operated as income prop- erty. Parties also owned par- tially completed single family home in Portugal that was never completed or occupied. Parties were both on social assistance or received disability payments. Wife brought motion for relief, including division of matrimo- nial property. Motion granted. Wife brought motion for relief, including spousal support. Mo- tion granted. Given length of relationship, wife was entitled to substantial award of spousal support. Global award of spousal support could result from cre- ative equalization of net family properties, which would result in both parties being able to live with reasonable financial secu- rity. Vesting matrimonial home entirely in name of wife was fair contribution to what would oth- erwise be husband's spousal sup- port obligations. Husband was to make global support payment to wife of $30,000 within one year, and when payment was made it would constitute full and final resolution of husband's spousal support obligation. With mat- rimonial home and global pay- ment wife would have financial security to get on with her life. Lima v. Lima (2017), 2017 CarswellOnt 3443, 2017 ONSC 1502, R.D. Reilly J. (Ont. S.C.J.). Insurance ACTIONS ON POLICIES Commencement of proceedings Indemnity clause may engage duty to fund defence Defendant was provider of cable television, internet and telephone service. Plaintiff tripped over un- buried cable and injured herself. Defendant's cable installation services were sub-contracted. Plaintiff brought action for dam- ages for personal injury. Defen- dant brought motion to compel third party to reimburse it for legal fees, to pay defence costs and to provide indemnity for any damages. Motion granted in part. Although third party was not insurer, there was contrac- tual obligation to pay reasonable costs of defending claims arising out of performance of contract in about of 50%. To extent that element of claim related to neg- ligent placing of cable, there was duty to indemnify defendant for its legal costs whether or not plaintiff 's claim was successful. Although contractual indemnity agreement between parties that were not insurance companies did not make contracting party insurer, indemnity clause such as this one may engage duty to fund defence in appropriate circum- stances. Occupier's liability was pleaded but so too was ordinary negligence and some of these allegations would fall within scope of indemnity provision if they were proven. Component of claim was based on allegation of negligent placement of cable, which if proven was allegation that would arise out of services provided by contractor and it was therefore allegation that trig- gered duty to defend. Pagé v. Rogers Communica- tions Inc. (2017), 2017 Carswel- lOnt 5578, 2017 ONSC 2341, Calum MacLeod J. (Ont. S.C.J.). Judges and Courts CONTEMPT OF COURT Practice and procedure Defendants found in contempt and sentenced to incarceration Plaintiff was in business of pur- chasing accounts receivable. Plaintiff alleged it was defrauded of approximately $6,500,000 in sophisticated scheme in which it unknowingly purchased ficti- tious accounts receivable. Plaintiff obtained mareva order freezing assets of defendants. Defendants were later found to be in contempt of order and sentenced to incar- ceration. Defendants appealed. Appeal dismissed. Motion judge made no error in finding that mareva order was clear as order did not want for clarity simply be- cause it did not concretize every particular of party's obligations. Defendants' failure to participate was not product of any defect in mareva order or any unreason- able demands made by plaintiff. Motion judge made no error in principle as he did not argue, overemphasize punishment or lose sight of purpose of contempt sanctions. Defendants ought to have put before motion judge plan from which it could have ar- gued for extension of time before penalty hearing but they did little more than argue that task was large one and that plaintiff had not provided any assistance. Trade Capital Finance Corp. v. Cook (2017), 2017 Car- swellOnt 4692, 2017 ONCA 281, Paul Rouleau J.A., K. van Rens- burg J.A., and B.W. Miller J.A. (Ont. C.A.). Real Property EASEMENTS Termination Easement valid and enforceable where not abandoned or extinguished Respondent company R pur- chased land, which included easement. After purchasing land, R moved easement to another part of property. Easement was not registered on title, and vendor of land never exercised option. R made use of easement, and built barrier encroaching on easement without necessary permits. Ven- dor transferred interest in land to applicant government agency, M. Transfer included rights to ease- ments. M did not exercise these rights. R and M had discussions about sale of property, which were unsuccessful. R applied for declaration that access easement was obsolete, or alternatively that it was to be moved. M applied for declaration that easement was valid and enforceable. M also ap- plied for injunctive relief, so that R could not use easement. R's ap- plication was granted, while M's was dismissed. M appealed from judgment of lower court. Appeal allowed. Application judge's ba- sis for judgment was in abandon- ment on operation of law, based on lack of use by M and vendor. Proper analysis would have found that M and vendor still had purpose for land, in gain- ing access to railway lands. There was no time limit on access easement. Option was not ex- ercised to extinguish easement. Relocation could not take place, as there was no abandonment. Modification was not beneficial to M or vendor, depriving them of rights under agreement and creating increased traffic f low. M continued to have right to ease- ment. Encroachment was to be removed in suggested six-month time frame. Remicorp Industries Inc. v. Metrolinx (2017), 2017 Car- swellOnt 8031, 2017 ONCA 443, Robert Sharpe J.A., Sarah E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 444, 2016 ONSC 10, G. Dow J. (Ont. S.C.J.). LANDLORD AND TENANT Nature and elements of lease Failure to consider principles relevant to lease interpretation constituting legal error Plaintiff tenant obtained sum- mary judgment against defen- dant landlord for recovery of its losses arising from fire at premis- es leaded by it from landlord un- der commercial lease. Defendant landlord successfully appealed. Tenant brought application for leave to appeal and during that time, Supreme Court of Canada released its decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.. Su- preme Court of Canada did not grant or deny leave, but instead directed that case be remanded for disposition in accordance with Ledcor. Appeal decision affirmed. Court's application of correctness standard of review to motions judge's interpretation of lease was grounded in nature of legal errors made by motions judge. Exception for correctness review recognized in Ledcor for standard form contracts there- fore had no application in this case. Correctness standard ap- plied to motions judge's inter- pretation of lease only if landlord had demonstrated extricable question of law within what was otherwise initially characterized question of mixed fact and law. Motions judge's interpretation of lease, question of mixed fact and law, involved extricable ques- tions of law. Motions judge failed to consider number of principles relevant to interpretation of lease and such failure constituted legal error subject to correctness re- view. Tenant's claim that legal er- rors identified in appeal decision related only to way in which mo- tions judge applied law to inter- pretation of particular contract before her was rejected. Deslaurier Custom Cabi- nets Inc. v. 1728106 Ontario Inc. (2017), 2017 CarswellOnt 5105, 2017 ONCA 293, E.A. Cronk J.A., S.E. Pepall J.A., and B.W. Miller J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 8481, 2016 ONCA 436, E.A. Cronk J.A., S.E. Pepall J.A., and B.W. Miller J.A. (Ont. C.A.).

• Cover