Law Times

Law Times • apriL 9, 2018 Page 19 www.lawtimesnews.com failed to pay mortgage, realty tax- es or refinance at higher interest rate and claimed he did not have to repay his mortgage because bank mishandled June 2015 pay- ment and declared him to be in default. Bank started enforce- ment orders and later refused to refinance mortgage. Bank was granted summary judgment en- forcing mortgage that had ma- tured and fell due in December 2015. Accused appealed on last day of 30-day appeal period and by ordering transcripts on final day, he believed it increased time to perfect his appeal. After Reg- istrar issued notice of intent for delay, B learned if he filed tran- scripts, Registrar would hold off dismissing appeal until one-year anniversary under R. 61.09(1) of Rules of Civil Procedure. B failed to perfect his appeal and his ap- peal was dismissed. B brought motion to set aside dismissal. Motion dismissed. B`s claim that bank suffered no prejudice because it was insured was ir- relevant; bank was prejudiced by delay and worsening its prin- cipal or capital exposure as time passed because it was paying real estate taxes and it had no use of its funds in period of increasing interest rates. B`s inaction and stalling showed his effort to keep living in his condominium for free as bank`s position worsened. With exception of questioning lack of adjournment, all other factors were irrelevant. B had not been denied procedural fairness as he had more than two years principally by his own requests to adjourn. In light of lack of merit in appeal and his inequitable ap- proach, he failed to meet interests of justice component in test set out in Paulsson v. Cooper. Ex- tending time would be inequita- ble and unfair to bank and would be contrary to interests of justice. Bank was entitled to substantial indemnity costs in amount of $10,019.08. Broz v. Scotia Mortgage Corporation (2018), 2018 Car- swellOnt 1086, 2018 ONSC 724, Myers J. (Ont. Div. Ct.). Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Constitutional challenge by doctors having to refer patients for treatments that were against their beliefs dismissed Individual applicants were doc- tors, whose Christian faith pre- vented them from performing certain procedures. Doctors were members of applicant soci- ety, which along with two other societies made application. Re- spondent provincial governing body mandated that doctors unable to provide services were to make immediate referrals. Governing body also mandated that physician-assisted death was to be available to patients. Applicants claimed that this provision was violation of their rights, under s. 2 and s. 15 of Charter of Rights and Freedoms. Applicants made constitutional challenges to provisions. Appli- cation dismissed. In having to refer patients for treatments that were against their belief, doc- tors' religious freedom was in- fringed. Effect of policies would be that applicant doctors would be practicing medicine, that was not in accordance with beliefs or conscience. Policies were properly considered to be laws, as they regulated actions of pro- fessionals. Protection of public and prevention of harm were important objectives, which outweighed concerns of doc- tors. Facilitating care in mul- ticultural society was another important objective of policy. Actual harm to patients did not need to be proven, as reasonable apprehension of harm was pres- ent. There was real risk that vul- nerable patients would not re- ceive equal access to health care. The Christian Medical and Dental Society of Canada v. College of Physicians and Sur- geons of Ontario (2018), 2018 CarswellOnt 1135, 2018 ONSC 579, Wilton-Siegel J., Lococo J., and Matheson J. (Ont. Div. Ct.). Environmental Law LIABILITY FOR ENVIRONMENTAL HARM Negligence No claim for failure to supervise or inspect activity on property Appellant company brought claim in nuisance and negli- gence, against respondent estate trustees. Trustees successfully brought summary judgment motion against company. Com- pany claimed that evidence of negligence was ignored by mo- tion judge. Company claimed that reports should have put trustees on notice of potential contamination. Company ap- pealed from summary judg- ment. Appeal dismissed. There was no claim for failure to su- pervise or inspect activity on property. There was no duty to neighbouring land owner on part of trustees. Sorbam Investments Ltd. v. Litwack (2017), 2017 Carswel- lOnt 21369, 2017 ONCA 850, Robert J. Sharpe J.A., Paul Rou- leau J.A., and Fairburn J.A. (Ont. C.A.); affirmed (2017), 2017 Car- swellOnt 2673, 2017 ONSC 706, L. Sheard J. (Ont. S.C.J.). Family Law DIVISION OF FAMILY PROPERTY Order for division of property Pension Benefits Division Act administrator not having power to split pension payments as method of dividing family property Parties cohabited for three years before marrying in 1994, had three children and separated in 2013. Wife was main income earner during marriage, retiring from Canadian military in 2008, and her pension was "in pay". Parties agreed that commuted value of pension was $747,200 and trial judge ordered wife to make equalization payment of $313,002 by way of Pension Ben- efits Division Act (PBDA) trans- fer. Wife appealed. Appeal dis- missed. PBDA contained no pro- vision that would enable pension administrator to divide monthly payments and trial judge's order was not precluded by pension di- vision provisions of Family Law Act. PBDA governed division of Canadian Forces Superan- nuation Act (CFSA) pensions, as well as pensions granted un- der many other federal statutes. Trial judge's conclusion that s. 8 of PBDA only provides for lump- sum divisions was borne out by plain language of provision, was in accord with National Defence letter, was consistent with actu- ary's understanding of PBDA and this feature of PBDA had long been recognized. Garnish- ment, Attachment and Pension Diversion Act only applies to enforcement of support orders. Federal legislation did not clothe PBDA administrator with power to split pension payments as method of dividing family prop- erty. Trial judge did not err in manner in which he interpreted applicable federal and provin- cial legislation and order made was both available to him under law and appropriate in circum- stances. Fawcett v. Fawcett (2018), 2018 CarswellOnt 2201, 2018 ONCA 150, G.T. Trotter J.A., Paul Rouleau J.A., and David M. Paciocco J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 21893, 2016 ONSC 5331, Timo- thy Minnema J. (Ont. S.C.J.). Insurance ACTIONS ON POLICIES Commencement of proceedings Right of action in bailment not prohibited by Insurance Act Defendant was operating plain- tiff 's pick-up truck when collision occurred. Defendant was at fault for accident. Plaintiff successfully brought action for damages aris- ing from property damage oc- casioned to pick-up truck owned during collision. Insurer brought subrogated action against defen- dant for recovery of amount paid to plaintiff. Trial judge found that bailment relationship existed between plaintiff and defendant and that insurer's subrogated claim against defendant was not prohibited by s. 263(5)(a.1) of Act because it was founded in its as- sertion of plaintiff 's right of ac- tion under bailment contract. Defendant appealed. Primary is- sue was whether right of action in bailment, premised on gratuitous bailee's failure to return bailed automobile to its owner in un- damaged condition, constituted right of action against person under agreement for purpose of s. 263(5)(a.1) of Insurance Act. Trial judge did not err in con- cluding that bailor's right of ac- tion founded in bailee's breach of terms of voluntary bailment of automobile, in circumstances where bailee failed to return au- tomobile in same condition that it was in when he took posses- sion, constituted right of action under agreement. Trial judge did not err in allowing plaintiff 's action on basis that his right of action in bailment was not pro- hibited by provisions of Act. Trial judge did not err in finding that defendant breached terms of par- ties' bailment agreement. Section 263(5)(a.1) was not contingent on existence of agreement in respect of damages. Burridge v. Hardy (2018), 2018 CarswellOnt 1719, 2018 ONSC 202, Gregory J. Verbeem J. (Ont. Div. Ct.). AUTOMOBILE INSURANCE Underinsured motorist endorsement Fleet insurer obliged to provide statutory accident benefits and uninsured motor vehicle coverage K Inc. leased tractor trailer to B Inc., which then provided rig to plaintiff to operate as indepen- dent contractor. B Inc. provided for licensing of vehicle and f leet insurance coverage of it through its insurer. Plaintiff was named as active driver under that policy but also had automobile insur- ance on his personal vehicles and within both policies, there was OPCF 44R Family Protection Coverage. While standing near tractor trailer, plaintiff was struck by vehicle and suffered traumatic brain injury. Fleet insurance pol- icy was capped at $20,000, which caused situation of underinsur- ance. Insurers brought motion for summary judgment to deter- mine whether OPCF 44R cover- age contained in f leet policy or plaintiff 's policy was available to plaintiff. Motion granted. Fleet insurer had obligation of provid- ing plaintiff 's statutory accident benefits and uninsured motor vehicle coverage. OPCF 44R cov- erage in f leet insurance policy was not applicable in circum- stances of plaintiff by virtue of exclusionary Endorsement 11A, which clearly limited coverage to private passenger vehicles, light commercial vehicles and did not apply to vehicles in excess of gross weight of 4500 kilograms. Exclusionary words contained in paragraph 2.2.3 were with re- spect to uninsured vehicles, not underinsured. Uninsured was mandated in every policy while underinsured was optional. Kahlon v. ACE INA Insur- ance (2018), 2018 CarswellOnt 976, 2018 ONSC 784, Whitten J. (Ont. S.C.J.). Municipal Law PLANNING APPEAL BOARDS AND TRIBUNALS Miscellaneous Date applications were received triggered time period for appeal Responding Parties CL submit- ted application to Moving Party town in support of request to amend town's Official Plan, town's Zoning By-Law and for approval of plan of subdivision to replace a golf course with resi- dential and commercial mixed- use development. Ontario Mu- nicipal Board ("Board") decided that town's requirements were not reasonable and decided that CL's applications should be con- sidered complete as of the date of decision. Town sought leave to appeal review decision on basis that it was unreasonable, con- trary to the public interest and undermined fundamental ob- jectives of Planning Act ("Act"). Motion dismissed. There was nothing unreasonable about board's analysis in review deci- sion. In ss. 22(7) and (7.02) the date that triggered period for filing appeal was date that ap- plications were received. In this case it was clear that applications were received on November 10, 2016. Focus of Act for purposes of triggering time period for ap- peal to Board was on when town received all of information it was entitled to receive. In this case that happened on November 10, 2016. Thus, as Board found in review decision, interpretation was consistent with plain word- ing of Act. The Corporation of the Town of Oakville v. ClubLink Corporation ULC, ClubLink Holdings Limited (2018), 2018 CarswellOnt 803, 2018 ONSC 589, H. Sachs J. (Ont. Div. Ct.). Real Property INTERESTS IN REAL PROPERTY Co-ownership Motion for partition and sale of home dismissed where applicant coming to court with unclean hands Respondent was contemplat- ing purchasing new home from builder. Applicant proposed partnership with respondent for purchase of home. Respondent executed trust agreement pre- pared by applicant without le- gal advice. Agreement provided that respondent held 50 percent interest in home for applicant. Agreement also provided that applicant was responsible for 50 percent of all mortgage pay- ments and other expenses. Ap- plicant did not co-sign mort- gage or make any payments for mortgage or other expenses. Applicant claimed respondent breached terms of agreement. Applicant brought motion for order for partition and sale of home. Motion dismissed. Ap- plicant was not entitled to eq- uitable relief. Applicant came to court with unclean hands having failed to pay 50 percent of mortgage payments and other expenses. Validity of trust agreement had not been deter- mined. Matter should proceed by way of full and proper hear- ing on merits. Naqvi v. Adil (2018), 2018 CarswellOnt 1683, 2018 ONSC 857, Susan J. Woodley J. (Ont. S.C.J.). CASELAW

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