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Page 14 January 22, 2018 • Law Times www.lawtimesnews.com CASELAW reduction of existing secured and unsecured debt obligations involving collectively known Af- fected Debt and related Affected Debt Instruments by more than $2 billion. Applicant failed to make recent payment pursuant to seven per cent unsecured note and had no intention of making monthly unsecured loan pay- ments as foregoing payments formed part of collected Affected Debt that they expected to be af- fected under Recapitalization Transaction. Applicant intended to continue to make scheduled, ordinary course interest and amortization payments under its secured debt instruments, as applicable. Applicant brought motion for preliminary interim order to facilitate capital restruc- turing including order staying creditors from taking any en- forcement proceedings under s. 192 of Act. Motion granted. Applicant complied with statu- tory requirements and proposed arrangement fell within category of arrangement contemplated by s. 192 of Act. Affected Debt fell within definition of security and as applicable debt obligation as other evidence of indebtedness or guarantee of corporation and thus each constituted security for purposes of Act. Draft prelimi- nary order was appropriate and would assist applicant in work- ing to advance and finalize terms of Recapitulation Structure and to return to court for interim order and to ultimately seek ap- proval of proposed arrangement. Concordia (Re) (2017), 2017 CarswellOnt 17120, 2017 ONSC 6357, G.B. Morawetz R.S.J. (Ont. S.C.J.). Civil Practice and Procedure JUDGMENTS AND ORDERS Final or interlocutory Refusal of stay would not have effect of precluding dispute of jurisdiction Mother and father were married in September 2001 and had child in 2004 before separating in Au- gust 2005 and divorcing in De- cember 2006. Parties executed Separation Agreement (SA) in 2008 and amended SA in 2013 agreeing that custody and access conf licts would be subject to me- diation and or arbitration pro- cess. Child was now 12 and lived primarily with mother in Burl- ington while father lived in To- ronto. Mediation under SA was unsuccessful. Mother brought application for child support and other corollary relief. Father an- swered with allegations of paren- tal alienation by mother, claim- ing custody and access. Motion judge dismissed mother's motion for order staying father's claims, granted in part father's motion for order that mediation arbi- tration provision of SA be disre- garded and that mother's motion be dismissed, and ordered that child attend counselling and as- sessment under s. 30(1) of Chil- dren's Law Reform Act. Mother appealed. Appeal dismissed. Motion judge's order was inter- locutory in nature. Order did not come within exception to gen- eral rule that order granting stay was final, but order refusing one was interlocutory. Refusal of stay in this case did not have effect of precluding defendant from dis- puting court's jurisdiction. McClintock v. Karam (2017), 2017 CarswellOnt 4552, 2017 ONCA 277, R.G. Juriansz J.A., P. Lauwers J.A., and C.W. Hourigan J.A. (Ont. C.A.). JUDGMENTS AND ORDERS Setting aside Master appointed registrar in bankruptcy not making order as master of superior court Wife claimed equalization of family property, husband made assignment in bankruptcy and trustee was assigned. Registrar in bankruptcy made order in which registrar authorized trustee to sell eight vehicles. Wife brought motion to vary order on basis of previous family law proceeding in which judge ordered that ve- hicles be preserved. Master, who had been appointed registrar in bankruptcy, dismissed motion to vary and wife appealed on basis that Master's order was not made in capacity as registrar but in capacity as Master of Superior Court. Trustee brought motion that sought to quash wife's ap- peal. Motion granted. If order of Master was made in capac- ity as registrar in bankruptcy, wife's appeal had to be quashed as divisional court did not have jurisdiction. Grounds of wife's appeal were essentially that order of judge superseded bankruptcy orders and that Master exceeded her jurisdiction. Submissions made indicated that Master was hearing motion to vary or- der of registrar in bankruptcy. Grounds in wife's notice to ap- peal did not include assertion that Master was acting in any capacity other than Registrar in Bankruptcy. Master had juris- diction to hear motion to vary and understood what was nature of motion before Master.. Wilson (Re) (2017), 2017 CarswellOnt 18428, 2017 ONSC 6986, Frances Kiteley J. (Ont. Div. Ct.). Construction Law CONTRACTS Breach of terms of contract Whether defendant advanced "claim" for delay was question of mixed law and fact In major bridge construction project, defendant was general contractor and plaintiff was subcontractor supplying steel to project. There were delays in course of project and some money was owed by defendant to plaintiff, and vice versa. Defen- dant wrote to plaintiff number of times about delay and ultimately withheld some funds. Parties re- ferred their dispute to commer- cial arbitrator, and both parties relied on article of subcontract to say that other party was estopped from raising certain delay costs claims. Arbitrator agreed with both parties' assertions on estop- pel issue. Appeal judge allowed defendant's appeal from arbitra- tor's award. Plaintiff appealed. Appeal allowed. Arbitrator's in- terpretation of article of subcon- tract was eminently reasonable. Question of whether defendant advanced "claim" for delay in writing within time permitted under subcontract was question of mixed law and fact. Question required arbitrator to not only interpret article of subcontract, but also to decide whether lan- guage contained in letters was sufficient to constitute "claim", and this was precisely what arbi- trator did. Arbitrator was aware of cases defendant relied on in this appeal, and arbitrator did not ignore or misperceive them. Ledore Investments Lim- ited (Ross Steel Fabricators & Contractors) v. Ellis-Don Con- struction Ltd. (2017), 2017 Car- swellOnt 9393, 2017 ONCA 518, J.C. MacPherson J.A., R.A. Blair J.A., and J. MacFarland J.A. (Ont. C.A.); reversed (2016), 2016 Car- swellOnt 13567, 2016 ONSC 5441, J.N. Morissette J. (Ont. S.C.J.). Contracts FORMATION OF CONTRACT Undue influence No basis for non est factum defence as experienced sellers failed to exercise care Defendants were husband and wife who owned subject farm properties, purchased in 2015. Owners listed properties with re- altors in 2016. Husband claimed that he was pressured to sign listing agreement, by realtors. Husband claimed that his health problems left him in disadvan- taged position, as against realtors. Husband claimed that offer of purchase and sale was made, and that he felt he had to accept offer. Husband claimed he and wife did not want to sell property, but felt pressured by agent to make counter offer. Counter offer was made, and accepted by plaintiff purchasers. Husband and wife did not withdraw this offer before deadline. Husband claimed that he made wished clear to realtors, that he did not wish to sell prop- erty. Realtors claimed they had no knowledge of this, until email was sent after closing. Husband and wife did not claim that pur- chasers did anything illegal. Pur- chasers bought another property after failure to close, but property had several deficiencies. Purchas- ers brought action against hus- band and wife, for specific perfor- mance and damages. In alterna- tive, purchasers sought return of deposit and damages for breach of contract. Purchasers moved for partial summary judgment, on issue of validity of agreement. Motion granted. Specific perfor- mance remedy denied. Issue of damages was to proceed to trial. There was no basis for non est factum defence, as husband and wife were experienced in proper- ty matters. Husband and wife did not exercise reasonable care in signing agreement, without read- ing it. Husband and wife did not seek legal advice. Husband and wife's evidence was not reliable, and was contradicted by realtors' documentation. There was no genuine issue for trial as to valid- ity of contract. Vandenberg v. Wilken (2017), 2017 CarswellOnt 17154, 2017 ONSC 6665, R. Raikes J. (Ont. S.C.J.). Equity EQUITABLE DOCTRINES Subrogation Equitable subrogation remedy not just in circumstances Defendant lender MC lent bor- rower M $49,900, which was se- cured by mortgage on commer- cial property owned by M's com- pany. MC agreed to postpone mortgage so that past mortgagor P's mortgage remained first in priority. M's company later gave mortgage to plaintiff company L. Balance of P's mortgage was paid out at this time, leaving MC first in priority and L second in priority. L's principal claimed to be unaware of this priority, until some time later. M's company defaulted on mortgage, with L moving to enforce security through power of sale. MC did not know about power of sale, and signed discharge. L brought action for amounts allegedly ow- ing. L claimed that they should be entitled to remedy of equi- table subrogation. MC brought motion for summary judgment. Motion granted. MC did not take advantage of L, but rather L took advantage of MC. MC would be prejudiced by subroga- tion remedy, by not being able to recover on security. MC believed her mortgage was secure, and by time she realized otherwise could take no action on it. Equi- table subrogation remedy would not be just in circumstances. L-Jalco Holdings Inc. v. MacPherson (2017), 2017 Car- swellOnt 10043, 2017 ONSC 4055, Mew J. (Ont. S.C.J.). Estates and Trusts ESTATES Actions involving personal representatives Unwise conduct precipitating motions and justifying costs order Applicants sought to remove RC as attorney for personal care and property of her mother, VV. Judge granted application, finding evi- dence that RC had misappropri- ated property of VV. Applicants were appointed joint guardians for personal care and property. RC and VC were ordered to pay costs to applicants in amount of $33,188. RC and VC brought motions to enforce order ensur- ing they had access to VV. There was evidence that RC had made disturbing comment to VV, and it was proposed that further ac- cess be supervised. VV died be- fore parties reached agreement as to terms for visiting. Ruling was made concerning costs of mo- tions. There was to be no order as to costs. Order to pay costs would serve no purpose. RC's conduct did not preclude further access by her or her family to her mother, so she was entitled to some measure of success. RC's unwise conduct at visit precipitated motions, and disentitled her to her costs. Costs order previously imposed was sufficient sanction for RC's un- reasonable conduct in litigation. Further costs would only com- pound her loss and render rec- onciliation between families, and settlement of remaining property and estate issues, less likely. Valente v. Careri (2017), 2017 CarswellOnt 17192, 2017 ONSC 6701, Price J. (Ont. S.C.J.). Family Law COSTS Custody and access Father entitled to reasonable fees as mother acted unreasonably by failing to return child Mother failed to return child to Ottawa following three-week trip to Vienna as scheduled. Mother claimed child was suf- fering from ear infection but provided no medical evidence or new date for return. When mother later advised she would not be returning for several weeks, and reduced frequency of communications, father brought application pursuant to Hague Convention. Father obtained ex parte order authorizing short service. Father obtained decla- ration mother was wrongfully detaining child and order for his return. Father was authorized to travel with child from Vienna to Ottawa and granted interim sole custody and primary care pend- ing trial. Mother obtained ex parte order for leave to bring mo- tion to stay or vary. Motion was dismissed. Father was awarded costs in amount to be deter- mined. Father claimed costs on substantial indemnity basis in amount of $16,963. Whatever the outcome at trial, at which primary issue would be mother's desire to relocate child to Aus- tria, father had been entirely suc- cessful at each stage of Hague ap- plication. Application had been of great importance to father and relatively complex. Mother had acted unreasonably by failing to return child even in face of order to do so. Father was entitled to recover fair and reasonable fees of $11,500 plus disbursements and taxes for total of $13,267.84. Uriu v. Rivadeneyra (2017), 2017 CarswellOnt 4251, 2017 ONSC 1930, L. Sheard J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Fees Class proceeding certified on issue whether contingency fee agreement violated Solicitors Act Applicant client signed con- tingency fee agreement with

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