Law Times

Law Times • February 5, 2018 Page 15 www.lawtimesnews.com CASELAW carriage of justice. There was no error in manner in which trial judge handle those events. Corbett v. Odorico (2017), 2017 CarswellOnt 18072, 2017 ONCA 887, G. Pardu J.A., G.T. Trotter J.A., and David Paciocco J.A. (Ont. C.A.). AUTOMOBILE INSURANCE Underinsured motorist endorsement Fact that Minnesota chose to self- insure not inconsistent with it being "inadequately insured motorist" Insured plaintiffs sustained serious injuries in motor ve- hicle accident in United States. Plaintiffs settled United States action for $500,000 for plaintiff G and $100,000 for plaintiff T. Plaintiffs brought action against defendant insurer for underin- sured coverage with respect to OPCF-44R Family Coverage Endorsement, which provided up to $1 million in coverage. Plaintiffs successfully brought motion to amend statement of claim to assert underinsured claim for difference between settlement amount and policy limit, and to answer question of law as to whether United States defendants were underinsured. Insurer appealed. Appeal al- lowed on other grounds. Mo- tion judge was correct in con- cluding that state of Minnesota owned truck was inadequately insured motorist. Given defini- tion of "inadequately insured motorist", fact that Minnesota chose to self-insure was not in- consistent with it being "inad- equately insured motorist". Fact that Minnesota's Tort Claims Act provides partial statutory immunity, capping amount of damages recoverable from state, was therefore no answer to plaintiffs' claim. Financial guarantee as required by law in lieu of insurance" available from Minnesota qA inadequate to cover damages that plaintiff was "legally entitled to recover". Hartley v. Security Nation- al Insurance Company (2017), 2017 CarswellOnt 19255, 2017 ONCA 715, Gloria Epstein J.A., C.W. Hourigan J.A., and D. Pa- ciocco J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 3932, 2016 ONSC 1812, G.E. Taylor J. (Ont. S.C.J.). Judges and Courts JURISDICTION Superior courts Single judge had no power to decide whether appeal was within jurisdiction of court Judge of Superior Court of Jus- tice issued ruling on issues of solicitor-client privilege and litigation privilege over docu- ments and audio files seized by Ontario Provincial Police dur- ing execution of search warrants under Criminal Code. Appel- lants filed notice of appeal and then question arose as to wheth- er this court had jurisdiction to hear appeal. Appellants brought motion for directions with re- spect to proper route of appeal. Motion adjourned to be heard by panel of court. Statutory and rules-based framework that de- fined court's jurisdiction, along with court's own practice direc- tions, indicated that single judge had no power to decide whether appeal was within jurisdiction of this court. Any declaration that single judge might make would not be binding on panel of court. Ontario (Provincial Po- lice) v. Assessment Direct Inc. (2017), 2017 CarswellOnt 19624, 2017 ONCA 986, R.G. Juriansz J.A., In Chambers (Ont. C.A.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employer not required to provide reasonable notice to terminate employee during probationary period Employee was working for com- pany developing battery-related products for high-efficiency us- age and high-tech businesses. Employee received unsolicited email from employer inviting him to call if he was unhappy with his current work. Employee ultimately accepted offer that was subject to six-month pro- bationary period. Employee was terminated two days before end of probationary period for un- satisfactory performance. Em- ployee brought action against employer for damages for wrongful dismissal. Employee brought motion for summary judgment. Motion dismissed; action dismissed. There was no merit to employee's position that probationary period was unilat- erally imposed by employer, not drawn to his attention, and not expressly agreed upon. Employ- er was not required to provide reasonable notice in order to ter- minate employee without cause during probationary period un- less dismissal was in bad faith. Employer provided employee with fair opportunity to demon- strate his suitability for employ- ment and had not acted in bad faith. Employer had honestly, and without ulterior purpose, considered matters relevant to employee's suitability for per- manent employment when de- ciding to terminate him during probationary period. Van Wyngaarden v. Thump- er Massager Inc. (2017), 2017 CarswellOnt 9833, 2017 ONSC 3909, M.D. Faieta J. (Ont. S.C.J.). Motor Vehicles EVIDENCE Actions in tort Driver and owner of car, which had worn and defective tires, equally liable for causing accident Appellant TH was driving friend DB's car in rural Ontario. Three other friends, including DB, were passengers in car. When TH lost control of car, it moved over into oncoming lane at the same time as another car was approaching in lane. Other car hit TH's car, killing one friend in back seat and injuring TH and other two friends in car. In action by TH, trial judge found TH, as driver, and respondent DB, as owner of car, which had worn and defective tires, equally liable for causing accident and for TH's injuries. Other driver, RM, and respondent municipal- ity were absolved of any liability for accident. TH appealed. Ap- peal dismissed. Trial judge re- ferred to evidence by DB, so he was well aware of it. In any event, action against municipality failed, not because non-repair had not been proved, but be- cause township met its onus to establish statutory defences after trial judge found there was non- repair. Trial judge made no er- ror of law, conducted thorough review of evidence and made reasonable findings. His analysis was entitled to deference. Sec- tion four of Negligence Act was enacted to be used in circum- stances that arose here, where it would not be practicable for trial judge to determine respec- tive degrees of responsibility for accident and for damages TH suffered as a result. Decision to apply that section and apportion liability on 50/50 basis disclosed no error. House v. Baird (2017), 2017 CarswellOnt 18078, 2017 ONCA 885, K. Feldman J.A., E.A. Cronk J.A., and B.W. Miller J.A. (Ont. C.A.). Municipal Law COUNCIL MEMBERS Conflict of interest Mayor breached Conflict of Interest Act by voting for project in which he had pecuniary interest Respondent was mayor of mu- nicipality of B. Mayor owned half of shares and was director of company that owned vacant property that needed to be ac- quired in order to permit mu- nicipal highway improvement roundabout ("project") to be constructed. When project first came before council, mayor declared pecuniary interest re- garding potential land acquisi- tion. At second meeting, mayor declared his pecuniary inter- est in this matter for same rea- sons. Mayor was present at third meeting, but did not declare pe- cuniary interest. Subsequently, special meeting was called to discuss annual capital budget, including potential increase in project's budget. Mayor was chair of special meeting until he left chair and sat in public gallery. When special meeting reconvened on next day, mayor, as chair of meeting, remained at council table throughout dis- cussion of project. Mayor cast his vote in favour of approving increase of project budget by $1,750,000. Applicant, resident of B, brought application seek- ing declaration that mayor had breached Municipal Conf lict of Interest Act and should be re- moved from office as provided in Act Application granted in part. Mayor breached s. 5 (1) of Act when he participated in and voted for project to go for- ward. He clearly had pecuniary interest in matter since project as approved required acquisi- tion of his property. He ought to have declared his interest, left chair, and withdrawn from meeting. However, mayor had earlier declared his interest, and withdrawn from meeting as re- quired by Act when question of land acquisition was before council. At time of his voting, he committed error in judgment. Therefore, mayor ought not to be removed from office by hav- ing his position declared vacant. Davidson v. Christopher (2017), 2017 CarswellOnt 10271, 2017 ONSC 4047, Timothy Ray J. (Ont. S.C.J.). TAX COLLECTION AND ENFORCEMENT Remedies available to taxpayer Municipality required to determine whether, in all circumstances, tax sale was fair Cottage of applicant M, along with seven other cottages, were on private roadway and shared common use area. Cottagers had registered easement rights over roadway and all of com- mon lands. Municipal property assessment showed owners of property to be all of cottagers, including M. Cottagers' names were removed as owners and names of owners who had sold property years before were sub- stituted. Tax bills and notices were sent out to previous own- ers, but were never paid. When respondent municipality de- cided to start tax sale proceed- ings to sell property for arrears of taxes, M sent formal letter to treasurer of municipality, ask- ing him to review matter and cease sale proceedings. Next day, treasurer replied that mu- nicipality could not cease trans- fer at that point. Property was sold to respondents KP and GP. M brought application. Relief sought included declara- tion that proceedings taken by municipality under Municipal Act for sale to respondents KP and GP for tax arrears of sub- ject premises were void. Appli- cation granted. M's letter was clear request for treasurer to review matter and to exercise his discretion to ensure fairness of tax sales as provided for in Municipal Act, s. 382(1) and (6). Treasurer failed to exercise his broader discretion given to him, to determine whether or not, in all circumstances, not simply limited to mandatory require- ments of Act, that tax sale was fair to M and other cottagers as taxpayers. Discretion given to treasurer in Act is broad and ne- glect, error or omission does not have to involve breach of man- datory requirements of Act and must take into account interests of affected taxpayer and not just municipality. Actual prejudice to M and his neighbours was significant. Practical effect was to put M and others with similar registered easement to property in direct conf lict of interest po- sition with purported purchas- ers, respondents KP and GP. Tax sale set aside and declared void. Marsh v. Quinte West (City) (2017), 2017 CarswellOnt 18005, 2017 ONSC 6869, H. MacLeod- Beliveau J. (Ont. S.C.J.). Professions and Occupations BARRISTERS AND SOLICITORS Organization and regulation of profession Law society immune from suit absent bad faith Lawyer was subjected to dis- ciplinary proceedings by pro- vincial law society between 2007 and 2014 that ultimately resolved in his favour. Lawyer brought action against law so- ciety and employees for negli- gent investigation, malicious prosecution, and misfeasance in public office. Motion judge partially granted law society and employees' motion for or- der striking out statement of claim. Judge struck all allega- tions based on negligent inves- tigation without leave to amend, and struck claims based on ma- licious prosecution and misfea- sance in public office with leave to amend. Judge held that it was plain and obvious that claim of tort of negligent investigation disclosed no tenable cause of action because law society was immune from suit, absent bad faith, pursuant to s. 9 of Law Society Act. Lawyer appealed. Appeal dismissed. While lawyer argued that plain terms of s. 9 of Act expressly protected only law society employees and of- ficials from negligence claims, binding case law from Ontario Court of Appeal and Supreme Court of Canada (E case) had held that s. 9 of Act provided statutory immunity to law so- ciety. Statutory immunity was not in issue in more recent Su- preme Court of Canada case (H case) that held that tort of negligent investigation existed. It was arguable that general law of negligence had changed since time of E case but it was not appropriate to revisit that case here because it was not clear that policy considerations in H case would be applied equally in circumstances where statu- tory immunity existed. Only panel of five judges of Court of Appeal could overcome previ- ous Ontario Court of Appeal cases and as lawyer did not seek appointment of enlarged panel, this court had no jurisdiction to revisit those cases. Robson v. The Law Society of Upper Canada (2017), 2017 CarswellOnt 8572, 2017 ONCA 468, P. Lauwers J.A., C.W. Hou- rigan J.A., and M.L. Benotto J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 14303, 2016 ONSC 5579, Firestone J. (Ont. S.C.J.).

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