Law Times

Law times • OctOber 29, 2012 lawyer personally pursuant to Rule 57.07(1) of Rules of Civil Procedure (Ont.). Ap- plication judge found that lawyer's conduct caused costs to be unreasonably incurred. Appeal allowed. Rule 57.07(1) was not concerned with disci- pline or punishment of lawyer but only with compensation for conduct that had caused unreasonable costs to be in- curred. Such awards were to be made sparingly. Application judge erred in principle by not separating lawyer's conduct from that of clients. Applica- tion judge erred in using hind- sight in respect of costs related to proposing expert. Decisions were so important to and inter- twined with overall conclusion that costs award against lawyer personally must be set aside. Even if lawyer was negligent, conduct did not merit award of costs against him personally. Galganov v. Russell (Township) (June 15, 2012, Ont. C.A., Wei- ler, Sharpe and Blair JJ.A., File No. C54486) Decision at 203 A.C.W.S. (3d) 253 was reversed. 217 A.C.W.S. (3d) 537 (19 pp.). Contracts Customer and supplier signed agreement. Supplier was to provide computer soſtware and services to customer. Customer claimed computer soſtware and services provided were inadequate. Supplier through sales individual represented that soſtware would best satisfy customer' Sales rep personally liable to any damages awarded MISREPRESENTATION claimed supplier negligently misrepresented capabilities of computer soſtware program purchased, s needs. Customer Sale of Goods Act (Ont.), and breached agreement. Customer brought action against sales in- dividual, supplier and 478. Sales individual was to pay customer $126,932 plus prejudgment in- terest. Agreement was entered into between customer and supplier. There was no credible evidence that customer entered agreement with 478 which did not exist at time of agree- ment. There was no evidence to suggest customer knew it was dealing with anyone other than sales individual and that individual was supplier. Sales individual was personally li- able for any damages awarded. Supplier made untrue, inac- curate and misleading state- ments. Statements were made negligently. Customer relied on negligent misrepresentations and suffered damages. Sales individual breached standard of care in making untrue, in- accurate and misleading state- ments to customer. Customer reasonably relied on negligent misrepresentation in entering agreement with supplier and had customer known difference customer would not have made purchase. Customer' violated s. 15 of was detrimental and customer s reliance suffered damages. Section 15 of Act applied. Supplier breached agreement with customer in that it failed to provide total integration as set out in agree- ment. Customer could main- tain action against supplier for damages. Claim for set off was not made out by supplier. PCM Technologies Inc. v. O'Toole (June 8, 2012, Ont. S.C.J., McEwen J., File No. CV-09- 00379213-0000) 217 A.C.W.S. (3d) 581 (15 pp.). Plaintiff claimed she was in- jured when she slipped and fell on ice accumulated on stairs of building owned by defendant 1054422 Ontario Ltd. and man- aged by defendant Cora Group. Cora retained Collingwood Landscape Inc. to provide win- ter maintenance and snow re- moval services. Under terms of service contract, Collingwood agreed to indemnify "the owner" and its agents "against all claims, losses, liabilities, demands, suits and expenses . . . arising out of the performance or non-perfor- mance of the contract". Collin- gwood also promised to name Cora as additional insured on commercial general liability in- surance policy but breached ob- ligation to do so. Cora brought motion for summary judgment asking that plaintiff ' limited to claims that fall within coverage under policy Insurer's obligation to defend Damages GENERAL dismissed or, alternatively, that Collingwood assume Cora' defence. Motion judge ordered Collingwood to assume defence of Cora and to indemnify Cora for any damages awarded. She noted that although some of negligence allegations fell within general occupiers' liability bas- ket, such allegations still linked to essential negligence alleged failure to address icy condi- tions on stairway. Collingwood appealed. Cora conceded that order to indemnify premature. Remaining issue was whether motion judge erred in ordering Collingwood to assume Cora' defence. Appeal allowed. Cora's s claim be s s concession that order to indem- nify was premature appropri- ate. No evidence concerning is- sues of liability or damages led on motion. To make order that Collingwood must indemnify Cora, contractual obligation to indemnify had to be triggered. In absence of evidence concern- ing liability or damages, no such obligation triggered. Order to indemnify set aside. Motion judge erred in ordering Collin- gwood to assume defence but Collingwood liable in damages to Cora for cost of defence, save for any costs incurred exclu- sively to defend claims not aris- ing from Collingwood' mance or non-performance of service contract. Collingwood' breach of contractual obliga- tion to have Cora named as ad- ditional insured did not create duty to defend; it gave rise to s perfor- s CASELAW remedy in damages. Scope of Collingwood' demnify, discerned from insur- ance obligation and indemnity provision in service contract, limited to "claims . . . based upon, incidental to or arising out of the performance or non- performance of the contract by the Contractor". Quantum of damages was amount Cora must pay to defend plaintiff ' s obligation to in- claims arising out of manner in which Collingwood per- formed or failed to perform service contract but did not in- clude costs incurred exclusively to defend claims that did not arise from Collingwood' s formance or non-performance of service contract. Insurer' obligation to defend limited to defending claims that, if prov- en, would fall within coverage under policy. Not sufficient answer that Collingwood' s per- s surer defending Collingwood against claims arising from per- formance of service contract. Distinct claims made against Collingwood and Cora, giving rise to inherent conflict accen- tuated by fact that both Collin- gwood and Cora cross-claimed against each other. Papapetrou v. 1054422 Ontario Ltd. (July 23, 2012, Ont. C.A., Laskin, Simmons and Cronk JJ.A., File No. C54259) Decision at 205 A.C.W.S. (3d) 665 was varied. 217 A.C.W.S. (3d) 744 (19 pp.). s in- This was to determine custody. Parties were never married. They began living together in June 2004. First child was born in August 2004. Parties had tur- bulent relationship. Parties sep- arated in March 2009 aſter po- lice were called to home. Father was charged with three counts of assault and one count of as- sault causing bodily harm. He denied all allegations but plead guilty to one count of assault. Child remained in mother' problems with anger and domestic violence were troubling Father's refusal to acknowledge Family Law CUSTODY custody. Father was under bail restrictions to have no contact with mother but second child was conceived. Father denied paternity. DNA testing proved he was father. Father' had been actively involved in children' s parents on grandparents to provide children with things she could not give them. They also were able to transport children af- ter father sold mother' Father was in relationship with mother' claimed that relationship began while parties were still together, which father denied. Parties home had gone into foreclo- sure and sale resulted in deficit. Father declared bankruptcy. Mother experienced housing problems. She had lived with sister and grandparents. She now rented house. Mother maintained that father had seri- s ex-best friend. Mother www.lawtimesnews.com s lives. Mother relied s ous anger problems throughout relationship. She outlined sever- al incidents were father assault- ed her. Father denied having anger problems or every physi- cally assaulting mother. Mother also claimed that father had unresolved problem with mari- juana use. Father denied having drug problem. Father' with children was ordered to be supervised by his parents. Father maintained that mother did not have enough interest in children and that she aban- doned them to paternal grand- parents. Application granted. Mother was straightforward and reliable witness. Father and his witnesses were not reliable. Children were happy and well- cared for. Relationship between parties was turbulent, primarily due to father' s access ties with anger management. Mother' s ongoing difficul- physically and verbally aggres- sive behaviour was accepted. Father' problems with anger and do- mestic violence were troubling. Father had pattern of acting maliciously toward mother. Fa- ther' s refusal to acknowledge s parents had been actively involved in children's lives but it was not reflection of disinterest by mother. Children spent lots of time with paternal grandpar- ents but not majority of time. Children had spent much more time with mother father. Mother had entirely ad- equate parenting skills. Mother had significantly more involve- ment and experience in raising children. Continued custody with mother was only available option and best promoted con- sistency and minimized disrup- tion in children' than with plan was realistic and viable. Father used marijuana but he did not have drug problem that impacted on children. Proposal for unsupervised access would not expose children to harm. Ongoing supervised access was doing more harm than good. It was in children' s lives. Mother's for mother to have custody with unsupervised access to father. It was in children' s best interests for them to have continued sig- nificant contact with paternal grandparents. Ridehalgh v. De Melo (July 23, 2012, Ont. S.C.J., Pazaratz J., File No. F459/09) 217 A.C.W.S. (3d) 629 (64 pp.). s best interests s vehicle. Parties were married ten years and had two children. Parties en- tered separation agreement that required father to pay child sup- port of $1,350 per month based on income of $70,941. Father sought to reduce child support obligation and arrears. Father sought to vary terms of separa- tion agreement. Father lost em- ployment because of criminal conviction for impaired driving. Father' Father not allowed to rely on own misconduct as excuse to avoid obligations SUPPORT dismissed. Discretion was not exercised to vary father' s motion to change was s current s descriptions of father's PAGE 19 support obligation. Income of $70,941 was imputed to father which was income set out in separation agreement. Father earned less income in 2010, 2011 and 2012 than $70,941. Father' obligation to pay child support in separation agreement was not contingent on father retaining employment. Father was not to be allowed to rely on own mis- conduct as excuse to avoid ob- ligations to children. Father did not use best efforts to maximize earning potential. Father did not make full and frank financial disclosure. Outstanding support arrears were not rescinded or cancelled. Costello v. Costello (June 18, 2012, Ont. C.J., Zisman J., File No. 173/09) 217 A.C.W.S. (3d) 655 (15 pp.). s Professions To require counsel to post security would chill access to justice that is objective of contingency fee regime Plaintiff obtained judgment against defendant. Aſter dis- covering that defendant trans- ferred matrimonial home to wife for no consideration aſter being served with statement of claim, plaintiff commenced ac- tion against defendant, wife and their company, seeking to have transfer BARRISTERS AND SOLICITORS lent conveyance. Action stayed when defendant declared per- sonal bankruptcy. Defendant listed plaintiff as creditor and plaintiff proved its set aside as fraudu- bankruptcy. Defendant dis- charged and obtained order dis- missing fraudulent conveyance action. Plaintiff obtained order authorizing it to commence and prosecute proceedings against defendants pursuant to s. 38(1) of Bankruptcy and In- solvency Act (Can.). Plaintiff commenced new fraudulent conveyance action but motion judge found action constituted abuse of process. She found it to be collateral attack on discharge order and on order dismiss- ing fraudulent conveyance ac- tion. Plaintiff appealed decision granting defendants' motion for order dismissing action. Appeal dismissed. Defendants brought motion for security for costs pending appeal against plaintiff ' claim in arguing appeal frivolous and plaintiff impecunious. Motion judge refused to grant order for security for costs. Motion for review of decision refusing to order security for costs dis- missed. Plaintiff ' s counsel personally, ing on contingency; to require counsel to post security would chill very access to justice that is main objective of contingen- cy fee regime. Nor was appeal frivolous. Incondo Building Corp. v. Sloan (July 18, 2012, Ont. C.A., Goudge, Sharpe and Juriansz JJ.A., File No. CA C54391) De- cision at 208 A.C.W.S. (3d) 73 was reversed. 217 A.C.W.S. (3d) 540 (12 pp.). s counsel act- LT

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