Law Times

PAGE 18 summary judgment was full ap- preciation test. Issues arose in novel circumstances of Internet defamation in political blogo- sphere and issues had not been addressed in jurisprudence in significant way. It was important to put alleged defamatory com- ment in context, which might require some expert testimony. Record before motion judge was not sufficient. Baglow v. Smith (June 14, 2012, Ont. C.A., Goudge, Sharpe and Blair JJ.A., File No. C54350) De- cision at 206 A.C.W.S. (3d) 494 was reversed. 217 A.C.W.S. (3d) 501 (19 pp.). Crown ACTIONS AGAINST CROWN This was motion to determine special case. Plaintiff brought claim as representative of per- sons resident in Canada who had suffered damages as result of implementation of temporo- mandibular joint (TMJ) im- plants. Implants were manufac- tured by American company VI. In April 1988, TMJ implant was inserted into plaintiff. Plaintiff alleged that insertion of implant resulted in permanent total dis- ability and loss of enjoyment of life. Plaintiff alleged that Health Canada owed duty of care to protect her and other class mem- bers from unsafe medical devic- es and that it negligently failed to perform duty in relation to TMJ implants. This was special case to determine what requirements were in statement of claim to es- tablish sufficient proximity be- tween plaintiff and defendant in claim brought against govern- mental body for regulatory neg- ligence and whether statement of claim satisfied requirements. Motion granted. Requirements for proximity were diverse and depended on particular facts of each case. At this stage it was not plain and obvious that al- legations in statement of claim could not support finding that defendant owed plaintiff prima facie private law duty of care. Regulator' could coexist with duties of Health Canada Private law duty of care that acknowledged public du- ties and obligations and com- mitment to performing duties, together with reliance on state- ments by members of public affected by performance of du- ties, could not, standing alone, create relationship of proximity between plaintiff and regulator. Legislative scheme did not cre- ate any private law duty of care. However, private law duty of care asserted by plaintiff could coexist with duties and obliga- tions Health Canada owed to public. Allegations described relationship between Health Canada and users of implants that was different from relation- ship that existed between Health Canada and consumers of med- ical devices at large. General representations and reliance on representations could, in combi- s public statements nation with other factors, create relationship between regulator and plaintiff that was sufficiently close and direct to render it just and fair to impose obligation on regulator to be mindful of plain- tiff ' Taylor v. Canada (Attorney Gen- eral) (July 6, 2012, Ont. C.A., Doherty, Weiler, Laskin, Sharpe and Armstrong JJ.A., File No. C53678) 217 A.C.W.S. (3d) 341 (55 pp.). s legitimate interests. Debtor and Creditor Applicants sought to discharge two charges made by applicants on same day as against same lands. First charge was in favour of 893. Second charge was in favour of 893 and 048. Appli- cants ceased making payments on fourth mortgage because of misrepresentations concerning revenue prospects of property. There were no written demands for payments and no written acknowledgements of existence of debt. No court proceedings were commenced to enforce mortgage. No payments were made on mortgage in excess of 20 years. Respondents ar- gued debt was acknowledged orally. Application was allowed. Charge made between applicant and 893 was discharged. Charge was given to secure first mort- gage, which was paid off and discharged. There was no rea- son for mortgage to continue. 893 was no longer in existence because charter was cancelled. No oral acknowledgement was given. Under case law assignee' commenced to enforce mortgage ENFORCEMENT No court proceedings rights were extinguished at expi- ration of ten years. Fulton v. 802048 Ontario Ltd. (June 29, 2012, Ont. S.C.J., Glithero J., File No. 11-29844) 217 A.C.W.S. (3d) 347 (13 pp.). s Equity Plaintiff purchased house from government with aim of install- ing it on lot 6 of development. Sale did not close. Plaintiff pur- chased lot 8 and moved house onto lot 8. Defendant developer sought order that house on lot 8 be removed or claimed damag- es for its installation. Defendant sought damages for plaintiff ' enforceable in real estate law Restrictive covenants DEFENCES failure to remover certificate of pending litigation. Defen- dant argued plaintiff breached agreement of purchase and sale for lot 6 by failing to de- liver payment of deposit by specified time on specified date. Defendant claimed plaintiff breached restrictive covenant on lot 8. Plaintiff sought dam- ages for aborted sale of lot 6. There was binding agreement of purchase and sale on lot 6 which defendant breached. Let- ters supported valid agreement to extend deadline. Plaintiff was deemed to have notice of restrictive covenants pursu- s CASELAW ant to Land Titles Act (Ont.). Restrictive covenants were not enforceable against plaintiff in contract law. There was no priv- ity of contract because plaintiff was not party to agreements that preceded plaintiff ' ment of purchase and sale. De- fendant had standing to enforce restrictive covenants as owner of lots that were to benefit from restrictive covenants. Restric- tive covenants were enforceable in real estate law. Plaintiff was provided with actual notice of restrictive covenants on lot 8 or plaintiff had deemed notice of restrictive covenants. Plaintiff could not rely on releases given by defendant to predecessor in title with respect to lot 8. Doc- trine of laches applied to allow court to award plaintiff dam- ages. Plaintiff was entitled to damages of $30,405 for defen- dant' s agree- respect to lot 6. Defendant was not entitled to injunctive relief because of defendant' s breach of contract with escence and delay in enforcing alleged breach. Modification order for damages was not ap- propriate. Webster v. BCR Construction (Apr. 12, 2012, Ont. S.C.J., Fer- guson J., File No. 44593/06) 217 A.C.W.S. (3d) 487 (21 pp.). s acqui- Family Law Society sought Crown wardship without access. Father sought return of children. Father plead- ed guilty to charge of assault with weapon against children. Children were apprehended. Notwithstanding guilty plea fa- ther insisted he did not assault children. Father viewed himself as victim. Least disruptive or- der in best interests of children was to make children Crown wards without access for pur- poses of adoption. Father acted in way intended to intimidate and threaten social workers. Father' children from father's abusive conduct at access visits CHILD WELFARE Mother failed to protect directed to children with father making harsh and cruel state- ments. Father repeatedly made inappropriate comments to chil- dren at access visits. Father was domineering and controlling with mother. Mother did not avail herself of all opportunities offered to overcome emotional and parenting issues. There were concerns with mother' s anger was frequently ability to protect children from risks of physical and emotional harm posed by father. Mother minimized father' s Mother failed to intervene to protect children from father' abusive conduct at access visits. Society made reasonable efforts to assist family. Relationship be- tween children and parents was not beneficial and meaningful to children. Children' s behaviour. s tunities for adoption would be impaired by access order. Children' www.lawtimesnews.com s oppor- v. J. (D.) (June 8, 2012, Ont. C.J., Brownstone J., File No. s Aid Society of Toronto C42398/06; A.C.W.S. (3d) 365 (33 pp.). COSTS C46163/08) 217 Applicant made offer to settle. It would have been more favour- able for respondent to have ac- cepted offer. Respondent en- tered consent order and had no intention of complying with order. Respondent attempted to hide behind corporation of common law spouse in attempt to reduce income and avoid spousal support obligation. Spousal support arrears accu- mulated to $53,400. There was bad faith on part of respondent. Applicant' Costs enforceable as support ization claims and property claims did not negate that appli- cant was substantially successful on spousal support issue at trial. Respondent was to pay costs of $20,000 inclusive of taxes within 60 days. Costs were enforceable as support. Costs were enforce- able against respondent person- ally and against corporation. Dutchyn v. Dutchyn (June 14, 2012, Ont. S.C.J., Maddalena J., File No. D20823/07) 217 A.C.W.S. (3d) 366 (8 pp.). s withdrawal of equal- Husband's conduct pressured PROPERTY This was appeal from trial judge' wife to use gift toward matrimonial home was entitled to unequal division of family property. Parties were married for 11 years and had two children. Wife agreed to give up career and stay at home and raise children. Husband was sole breadwinner. In De- cember 2006, wife received giſt of $200,000 from father. Parties disagreed on what to do with giſt. Wife ultimately agreed to give husband $180,000 to pay down line of credit on matri- monial home. Parties separated in March 2007. Based on all of factual circumstances and law, trial judge found that wife was entitled to unequal division of net family property based on unconscionability pursu- ant to s. 5(6) of Family Law Act (Ont.). Appeal dismissed. There was high threshold for finding unconscionabilty pursuant to s. 5(6) of Act. Trial judge was aware of statutory threshold to be met and correctly articulated test. Trial judge made no error in law or in findings of fact. Trial judge was entitled to find that, in context of history of marriage, equal division of family prop- erty would be unconscionable. Wife stayed at home to raise family, husband earned high salary and husband' s decision finding that wife pressured wife to use giſt toward matrimonial home, knowing she was doing so to try to save marriage, then leaving shortly aſter. Ward v. Ward (June 29, 2012, Ont. C.A., Feldman, Sharpe and Simmons JJ.A., File No. C53354) Decision at 197 A.C.W.S. (3d) 156 was varied. 217 A.C.W.S. (3d) 395 (46 pp.). Municipal Law s conduct OctOber 22, 2012 • Law times This was appeal from dismissal of applications to quash bylaw. Respondent township passed bylaw that required message or content of any new exte- rior commercial signs to be in French and English. Appellants brought applications to quash bylaw. Application judge dis- missed first appellant' Purpose of bylaw not to restrict freedom of expression BYLAWS tion on basis that he did not have standing. Application judge found that second appellant had standing. Application judge held that bylaw was intra vires town- ship' s applica- Municipal Act, 2001 (Ont.), and that requirement that sec- ond appellant' s statutory authority under services be in English as well as French did not infringe s. 2(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Pursuant to s. 273(1) of Act, any person may apply to quash bylaw but court retained discre- tion to refuse to grant standing. Application judge did not err in finding that first appellant was not person affected by bylaw. By-law was intra vires town- ship' s sign describing eral municipal powers granted to municipality in s. 11(1) of act. Township had authority to enact bylaw under s. 11(2)(5) of act. Second appellant' s authority pursuant to gen- aimed to convey meaning and prima facie fell within scope of freedom of expression. Purpose of bylaw was not to restrict free- dom of expression by restricting content or form. Second appel- lant failed to demonstrate that expressive activity of describing services exclusively in French promoted principles and values upon which freedom of expres- sion was based. Bylaw did not infringe s. 2(b) of Charter. Galganov v. Russell (Township) (Feb. 2, 2012, Ont. C.A., Weiler, Sharpe and Blair JJ.A., File No. C52704) Decision at 325 D.L.R. (4th) 136, 192 A.C.W.S. (3d) 441 was affirmed. 217 A.C.W.S. (3d) 465 (45 pp.). s sign Bylaw imposed pavement deg- radation fee per square metre of proposed excavation. Applicant sought to quash bylaw. Appli- cant sought declaration bylaw was ultra vires city and of no force and effect against appli- cant. Applicant sought refund of amount paid by applicant to city pursuant to bylaw. Application was dismissed. Section of bylaw was not ultra vires city and was not to be quashed. City could properly charge for costs caus- ally connected to maintenance of roads and could be properly charged as permit fee. There was reasonable nexus between fee and regulatory scheme. Enbridge Gas Distribution Inc. v. Toronto (City) (June 13, 2012, Ont. S.C.J., Stevenson J., File No. CV-11-423243) 217 A.C.W.S. (3d) 464 (11 pp.). Real Property connected to road maintenance City could charge for costs

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