Law Times

Law Times • November 20, 2017 Page 19 www.lawtimesnews.com CASELAW damage which took place after spreading started. Motion judge dismissed portion of claim, fully relating to time before limitation period. Couple appealed from portion of judgment allowing claims to stand. Appeal allowed; summary judgment granted. Standard of care was not proven by neighbours on motion. No objective evidence was provided to prove nuisance. No genuine issue for trial was established on evidence. Action was dismissed against all defendants. Deavitt v. Greenly, et al (2017), 2017 CarswellOnt 14897, 2017 ONSC 5674, Kiteley J., Wilton-Siegel J., and Broad J. (Ont. Div. Ct.); reversed (2016), 2016 CarswellOnt 4588, 2016 ONSC 1693, B.G. MacDougall J. (Ont. S.C.J.). STATUTORY PROTECTION OF ENVIRONMENT Approvals, licences and orders Intervener status denied as applicants had interest but issue on application was narrow Intervention. Applicant oper- ated gravel pit that was newly designated by Minister as subject to Aggregate Resources Act, so was able to operate without li- cense until one was issued or re- fused. Applicant sought license, and Minister served notice of concerns respecting zoning, so applicant brought application in court for declaration that no zon- ing bylaw prohibited its planned use of property. Respondents to application were planning board and Minister of Natural Re- sources and Forestry. Board did not dispute one lot was zoned for aggregate extraction but other lot was disputed and board asserted if it was not zoned for aggregate extraction, aggregate extraction was not legally non-conforming use. Associations of nearby cot- tage owners had complaints about noise and traffic emanat- ing from applicant's operation and said they could provide evidence relevant to non-con- forming use issue. Associations brought motion for leave to in- tervene in application. Motion dismissed. Associations had in- terest in subject matter and may be directly affected by nuisances, but issue on application was nar- row. Only issue was whether there was zoning bylaw prohibit- ing properties from being used as gravel pit. Matter had already been subject to delay and grant- ing motion would cause further delay. If determination had to be made about legal non-conform- ing use, parties would be obliged to call evidence on historic use of properties, and nothing sug- gested board could not obtain information from members of associations. Proposed interven- tion would elevate witnesses to status of parties, which was not necessary or desirable. Rock Solid Holdings Inc. v. Ontario (Lakehead Rural Plan- ning Board) (2017), 2017 Car- swellOnt 3913, 2017 ONSC 1414, W.D. Newton J. (Ont. S.C.J.). Estates and Trusts ESTATES Actions involving personal representatives Inconsistent for administrator to raise arguments to benefit himself at expense of beneficiaries Deceased died intestate in 1992, and was survived by her two sons from first marriage, R and D, and by her second husband, F. F was estate administrator and largest estate asset was home purchased by deceased as tenant in common with F. Deceased held 90 per cent interest in home and F held 10 per cent interest. Since deceased's death, F occupied home, paid taxes and other expenses, and caused mortgage to be discharged in 2012, and paid no occupation rent to estate. Over years until October 2011, F paid various amounts to sons. Receipts stated that amounts were received from F toward yet to be determined estate inheritance. F applied for declaration that he held title to home. R appealed and Court of Appeal found that both R and D were entitled to one-third of residue of home, that only prop- erty in issue was home, and that although F was entitled to prefer- ential share, he was not entitled to home absolutely. Court of Appeal upheld finding that deceased's ownership interest in real prop- erty vested equally between F, D, and R. Court of Appeal directed that residue of estate be identified and that appropriate quantum of R's share of estate be determined. It was inconsistent with his role as estate administrator for F to now raise arguments which would benefit himself at expense of two other beneficiaries. On July 30, 1995, all property in estate was legally transferred to beneficia- ries. Each party, by participating in informal relationship, failed to protect their interests by docu- menting their understanding, and all parties were potentially prejudiced by their failure to as- sert rights in timely way. Residue of estate was zero and estate's only asset was now vested in benefi- ciaries. Home was to be sold and once net proceeds were realized, 10 per cent of proceeds were to be paid to F ref lecting his original fractional ownership of home. Net sale proceeds were subject to various credits and once credits were taken, remaining sale pro- ceeds were to be divided between all three tenants in common. Amounts previously paid to sons by F were to be repaid to F from sons' respective shares. Fray v. Evans (2017), 2017 CarswellOnt 3735, 2017 ONSC 1528, McSweeney J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Defiant and misleading approach to disclosure constituting bad faith and triggering full recovery of costs Parties cohabited for one year, were married for three years and three months, and had one child. There were allegations that hus- band assaulted wife and child, had mental instability, and had hidden substantial income. Wife brought motion for child sup- port, spousal support, imputed income to father, and interim dis- bursements. Husband brought cross-motion for access. Motion judge granted wife's motion and dismissed husband's cross-mo- tion. Parties made submissions on costs. Wife was awarded costs of $39,550 inclusive of HST and disbursements. Wife was sub- stantially successful on all issues. Wife made offer to settle and was entitled to full recovery conse- quences in relation to portions in which she did better than her of- fer, but only as of date of offer two days before hearing. Husband's defiant, uninformative, and mis- leading approach to disclosure constituted bad faith, trigger- ing full recovery of costs. Wife acted and litigated in reasonable manner while husband did not. Issues were important and com- plex. Wife's bill of costs lacked sufficient particularity to allow meaningful assessment of costs. Husband had significant finan- cial resources while wife did not. Benzeroual v. Issa and Farag (2017), 2017 CarswellOnt 16083, 2017 ONSC 6225, A. Paz- aratz J. (Ont. S.C.J.); additional reasons (2017), 2017 Carswel- lOnt 9363, 2017 ONSC 3655, A. Pazaratz J. (Ont. S.C.J.). Municipal Law MUNICIPAL FINANCE Commissions of inquiry into finances To settle property on trust, one must intend that property be subject of trust In 2000, former municipalities entered into agreement under which Canada was to pay each municipality grant of $10 million. In January 2001, two of munici- palities, HT and PH, amalgam- ated into respondent municipal- ity of P. In April 2001, P received two cheques from Canada, each in amount of $10 million. One of cheques was made payable to trust company RT of former HT, in payment of amount due to HT. When payment was received, no trust agreement had been con- cluded between HT and RT nor had such agreement been con- cluded between P and RT. Pay- ment was placed on deposit with RT. RT returned fund to P after passage of time. P failed to find replacement for RT. Applicant ratepayers brought application for declaration that fund was sub- ject to trust in favour of ratepay- ers of HT and sought accounting in respect of fund from P. Ap- plication granted. P was ordered to account for income earned on funds and for all payments made out of fund from specified date to present. Application judge held that, having failed to find suit- able replacement for RT, P was de facto trustee and that trust pro- vided benefits to unclosed class for indeterminate period that extended beyond perpetuity pe- riod. Application judge held that P failed to use power to appoint income in accordance with strict terms of trust and was in breach of its obligations as trustee. P ap- pealed; applicants counter ap- pealed. Appeal allowed; counter appeal dismissed. Agreement was contract. Payment to HT was discharge of contractual obliga- tion under relevant of agreement. Canada did not make payment as settlor of trust and did not settle payment on trust. P did not be- come trustee nor did it breach its obligations in respect of use of HT fund. When Canada made payment, it did so to satisfy its contractual obligation under rel- evant article. Therefore, Canada could not have been acting as settlor of trust when it made pay- ment. To settle property on trust, one must intend that property be subject of trust. Here, there was no such intention because Cana- da's intention in making payment was to discharge its contractual obligation under relevant article. Angus v. Port Hope (Mu- nicipality) (2017), 2017 Car- swellOnt 10123, 2017 ONCA 566, G.R. Strathy C.J.O., Eileen E. Gillese J.A., and G. Pardu J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 10582, 2016 ONSC 4343, J.R. McCarthy J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Negligence Lawyer negligent for failing to advise of ability to bring action for breach of trust Company was sub-contracted by BCI to install sidewalks at building project in 2004. Com- pany did not get paid in full, and $102,931.22 remained out- standing. Company issued claim against BCI in 2007; however bank obtained receivership order against BCI in 2008. Company's action was stayed, and any hope of recovery against BCI evaporat- ed. Company commenced action against their lawyer, suing him for negligence, asserting he failed to commence claim against BCI's owners in their personal capaci- ties, for breach of trust provisions of Construction Liens Act. Com- pany's motion for summary judg- ment against lawyer was granted in part. Judge found lawyer was negligent in failing to advise company of their ability to bring action against officers and direc- tors of BCI for breach of trust. Judge found two required trial: whether solicitor's negligence caused damage to company; and quantification of any such dam- age. Ruling was made. Lawyer's negligence caused damage to company in amount of $50,000. Lawyer had obligation to advise company of option of pursuing breach of trust claim under s. 13 of Act and failed to give such advice. Although evidence was modest there were sufficient in- dicia present to satisfy Court that at least some recovery would have been realized from BCI's direc- tors. B admitted , at discovery, that he had half-interest in home which he valued at $400,000; that he had $30,000 in invest- ments; and that he had means to settle his personal guarantee with bank. It was more likely than not that company would have real- ized some recovery on judgment for breach of trust against B. Cau- sation was therefore established. 614128 Ontario Ltd. o/a Trisan Construction v. Epstein (2017), 2017 CarswellOnt 11209, 2017 ONSC 4417, Boswell J. (Ont. S.C.J.). Restitution and Unjust Enrichment GENERAL PRINCIPLES Requirements for unjust enrichment Woman not entitled to constructive trust in home as she was never financially liable for mortgage Parties cohabited for 15 years, and they lived for most of that time with woman's daughter in home man owned. Both parties worked throughout cohabitation, and they never had any joint bank accounts or joint savings. Parties ran up significant debt which they consolidated, and debt was later refinanced with consolida- tion mortgage on home. Man paid mortgage, taxes, utilities and insurance, while woman purchased groceries and contrib- uted $500 per month. Woman brought application claiming entitlement to constructive trust in home owned by man. Appli- cation dismissed. Woman was never put on title to property and she was never made financially liable for mortgage on home. Woman contributed to carrying costs of home by paying $500 per month, but she also received ben- efit of her and her daughter living in home with no contribution from daughter and no other con- tribution from woman. While woman contributed to groceries and she paid for internet, she and her daughter received larger ben- efit from that. Woman claimed she cleaned home, but daughter's room was disaster and woman had many animals that made home dirty. Woman received substantial benefit from con- solidation refinancing of loan, as she was no longer responsible for significant debt she had in- curred. Financial circumstances of parties were not unique or complicated, they each earned relatively same amount of money, they each contributed to living costs, they each had separate life interests, they had separate bed- rooms, they rarely went on vaca- tions together and they did not have joint bank accounts or joint investments. Mere appreciation of one cohabitant's assets under circumstances did not, in and of itself, create unjust enrichment. Woman had not established she gave something tangible to man that he received or retained. Peters v. Swayze (2017), 2017 CarswellOnt 5129, 2017 ONSC 1779, R.J. Harper J. (Ont. S.C.J.).

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