Law Times

Law Times • January 29, 2018 Page 15 www.lawtimesnews.com CASELAW claim seeking damages for bat- tery, abuse of authority as police officers, and negligent investiga- tion. Police brought motion to dismiss claim on basis that limi- tation period had expired. Mo- tion judge granted motion and dismissed complainant's claim except for claim based on tort of negligent investigation, which was brought within two years of acquittal. Judge concluded that battery claim discoverable on date of alleged battery and was outside two-year limitation pe- riod prescribed by s. 4 of Limi- tations Act, 2002. Complainant appealed. Appeal allowed. Judge erred in concluding that battery claim was outside limitation period. Negligent investigation claim was continuing, and it covered almost same parties and events as battery claim. Criminal charges and tort claim of battery were mirror images of each other and verdict in criminal trial was crucial factor in determination as to whether to proceed with civil action. Discoverability date for battery claim was date of ac- quittal of criminal charges, so claim was brought within limita- tion period. Winmill v. Woodstock (Po- lice Services Board) (2017), 2017 CarswellOnt 19263, 2017 ONCA 962, J.C. MacPherson J.A., K. Feldman J.A., and Grant Huscroft J.A. (Ont. C.A.). Estates and Trusts ESTATES Passing of accounts Application to pass accounts granted; trustee exercising duties in reasonable, appropriate manner Deceased died leaving adult son, B, adult daughter, S, and common-law spouse, L,and will directing that residue of estate be divided equally among all B, S and L and naming L executrix and trustee and S as alternate ex- ecutrix and trustee. B objected to appointment of either L or S, disputed validity of will based on undue inf luence and disputed authenticity of signature on will. B brought actions against estate and deceased's corporation, T Inc., claiming interest in, among other properties, deceased and L's matrimonial home which was owned by T Inc.. On S's mo- tion for directions, estate trustee during litigation (trustee) was appointed. After trustee termi- nated B's employment by T Inc., B brought wrongful dismissal action against trustee. Parties settled B's challenge to validity of will and L's actions. B brought unsuccessful motion to nullify settlement and remove trustee. Trustee brought unsuccessful motion to remove himself as trustee. Motion judge dismissed trustee's motion to be removed as trustee and instead extended trustee's powers to estate trustee not limited to those of estate trustee during litigation, ordered interim distribution to each beneficiary, and ordered that $42,298.71 in costs to be deduct- ed from B's portion of interim distribution, and that $61,446.92 and $21,600.17 be deducted from shares of B and S, respectively for prior proceedings. Trustee distributed deceased's property, wound up T Inc., and brought ap- plication to pass accounts. Appli- cation granted; accounts passed. Majority of B's objections were attacks on trustee's personal and professional integrity dismissed earlier by judge who concluded that trustee exercised his duties in reasonable, honest, and ap- propriate manner. Only objec- tions with any substance related to fees charged by trustee for 3.6 hours spent dealing with B's hu- man rights complaints and hour spent being interviewed at police station after B alleged trustee as- saulted him by thrusting enve- lope at him. Compensation was reasonable and were allowed. B's objections to L living at T Inc. property for free was settled when lawsuit in which L claimed inter- est in property was resolved by way of payment to L of $25,000. B's objection that trustee failed to complete accurate account of deceased's possessions was dealt with and decided against B at pri- or hearing. Trustee accounted for corporate assets and taxes. Estate of Timothy Bryant v. Bryant (2017), 2017 Carswel- lOnt 10230, 2017 ONSC 3781, Ellies J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employer precluded from unilaterally imposing changes during period of working notice Plaintiff employee began selling property, home and car insur- ance for defendant employer in February 1985. Plaintiff en- tered first Agent Compensation Agreement. He subsequently entered Neighbourhood Of- fice Agent Agreement (NOA) which allowed him to "run his own business", hire own staff and choose location of office subject to approval of employer. In July 2007, employer announced it was changing its business model. Neighbourhood offices were to be closed and consolidated with agency offices. Employee was advised he would be Business Development Agent, working in new agency office. Instead of receiving commission based on his own sales and renewals, he would receive bonuses based on performance of group. He was guaranteed current level of compensation during 24-month period of transition. Employee subsequently refused to relocate to new office as directed and was terminated for cause in No- vember 2008. Employee brought action for damages for wrongful dismissal which was dismissed- Parties reached agreement at trial with respect to costs. Parties spe- cifically agreed upon amount of costs on partial indemnity basis that would be paid by victorious party. It was not accepted that employer's offer set out in cor- respondence by letter in March 2012 qualified as R. 49 of Rules of Civil Procedure offer from which client cost consequences must f low to justify award of costs to employer on substan- tial indemnity basis. It was not agreed that unreasonable behav- iour of employee justified award of substantial indemnity costs. Agreement parties reached at trial was applicable and employee was ordered to pay costs that were agreed to at trial to employer. Em- ployee appealed. Appeal allowed in part. Trial judge erred by not addressing whether change in lo- cation, including change to busi- ness model under NOA, could be made by respondents during working notice period. NOA pre- cluded the employer from unilat- erally imposing changes during period of working notice. Clear from plain reading of 830 agree- ment that any compensation in- terest employee had in renewed insurance policies ended with termination of his employment. Costs to employee fixed at $7,500 for appeal and $60,000 for trial inclusive of disbursements and applicable taxes. Nufrio v. Allstate Insurance Company of Canada (2017), 2017 CarswellOnt 19243, 2017 ONCA 948, Paul Rouleau J.A., M.L. Benotto J.A., and L.B. Rob- erts J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 10224, 2016 ONSC 2791, Pollak J. (Ont. S.C.J.). Municipal Law DEVELOPMENT CONTROL Miscellaneous Defendants in contempt of order to rehabilitate wetlands after doing nothing for eight months RM and corporation were con- victed on charges of undertak- ing development and interfering with wetland, contrary to subsec- tions 28(1)(b) and (c) of Conser- vation Authorities Act. At trial, corporation received $7,500 fine on one count and suspended sentence on second count. RM received suspended sentence on both counts. Following sentence appeal, RM and corporation were ordered to rehabilitate and restore the wetlands to conform with the guidelines and requirements set by Mississippi Valley Conserva- tion Authority within 6 months. Eight months have passed since order was made. RM and corpo- ration had not taken any steps to comply with order. Mississippi Valley Conservation Author- ity applied for order finding RM and corporation in contempt of order. Application allowed. RM and corporation were found to be in contempt of order requiring that they replace stripped organic material that had been stockpiled on property and replant identi- fied wetland area with native veg- etation species. RM and corpora- tion were ordered to comply with conditions. RM and corporation deliberately defied order in public way. RM was aware of decision – indeed, he claims to have read it. Order was clear and sufficiently precise; yet, RM and corporation took no steps in effort to comply within six months as required. They chose to deliberately ignore it, knowing that purpose of resto- ration order was to deter others from developing wetland. RM's evidence that he was unsure as to what the order required him to do in relation to the stockpiled organic material and replanting of wetland area was rejected. His response to order was to advise that he intended to appeal. Mississippi Valley Con- servation Authority v. Mion (2018), 2018 CarswellOnt 20, 2018 ONSC 104, R. Ryan Bell J. (Ont. S.C.J.). MUNICIPAL LIABILITY Negligence Municipality breaching standard of care by failing to consider whether farm exempt from bylaws Plaintiff was raising wild boars on property she leased in defendant city. Landlord made complaint to city, and municipal bylaw en- forcement officer determined that plaintiff might be in viola- tion of city's zoning and exotic animals bylaws. City representa- tives visited plaintiff 's properties on at least two occasions, no one was home, but on second visit three city representatives walked to pens, saw wild boars and took pictures. Compliance letter was sent by city and bylaw charges were laid. Plaintiff alleged she was forced to kill large number of her herd of wild boars after she received compliance letter. Plain- tiff brought action for damages based on trespass, abuse of pro- cess, malicious prosecution and negligence. Action dismissed. There was no dispute that city owed plaintiff duty of care. In order for city's representatives to know law and act with reason- able care when taking steps to enforce bylaws, city should have trained its representatives about Farming and Food Production Act and its applicability when considering bylaw compliance or enforcement steps. City's rep- resentatives had no knowledge of Act, received no training of Act and did not consider impact of Act. While there was no bad faith on part of city's representa- tives, it was unreasonable for city not to have provided training to representatives about Act. City's failure to provide training led to negligent conduct of representa- tives, specifically their failure to consider whether plaintiff 's wild boar farm was exempted from compliance with restrictions that might be imposed on farm by city bylaws. City's representa- tives breached standard of care when they sent compliance letter and when they commenced by- law contravention prosecution. Plaintiff did not act reasonably by killing wild boars. Plaintiff 's theory of causation was based on fact that she believed city would impound animals if she did not remove them from property, but based on evidence, plaintiff was never advised by any city repre- sentative that wild boars would be impounded prior to her kill- ing them. Plaintiff acted rashly, precipitously and unreasonably in killing boars quickly with- out engaging in more extended battle with city or obtaining legal advice or without trying to find alternative accommodation for boars, and if plaintiff had not acted as she did her loss would have been avoided. Plaintiff had not proven damages for wild boars she killed or consequential loss of income and assets. Rausch v. The Corporation of the City of Pickering (2017), 2017 CarswellOnt 8503, 2017 ONSC 2634, Salmers J. (Ont. S.C.J.). ZONING Zoning bylaws Decisions imposing limitations on evidence of townships constituting denial of procedural fairness Townships were municipal corporations as defined in Mu- nicipal Act. AT was constitu- ent lower municipality of S and was amalgamation of former townships of A and T. S was municipal authority for certain roads within its geographic and political jurisdiction includ- ing Simcoe County Roads. AT had local township roads under its jurisdiction. Consolidated hearing consisted of two mo- tions for leave to appeal from decisions of Ontario Municipal Board ("Board"). Corporation of County of S sought leave to appeal from decision of board which granted party status to S but with limitations on type of evidence that S will be permit- ted to submit at hearing which will hear AF Ltd.'s application for official plan amendment, zoning bylaw amendment and aggregate extraction licence. Corporation of Township of AT also sought leave to appeal from decision of board which granted party status to AT at same hearing, with sim- ilar limitations to those imposed on S collectively ("Limitations"). Applications allowed. Leave was granted to S to appeal limitations. Similarly, AT was granted leave to appeal limitations. There was good reason to doubt correct- ness of Board. Decisions which imposed limitations on party status of townships constituted denial of procedural fairness and natural justice. By limiting town- ships to calling evidence only on any incremental impact from in- crease in number of trucks from AF Ltd.'s pit on roadways within townships, in terms of opera- tional issues and in terms of safety, board has effectively de- cided that at consolidated hear- ing it will refuse to hear relevant evidence to issue it was required to consider namely main haulage routes and proposed truck traffic to and from site. Evidence will not come from any other source as other parties to hearing all supported AF Ltd.'s application given they entered into Road Re- striction Agreement. Simcoe (County) v. Arbour Farms Limited (2017), 2017 CarswellOnt 18013, 2017 ONSC 6803, Spies J. (Ont. Div. Ct.).

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