Law Times

Law Times • apriL 23, 2018 Page 19 www.lawtimesnews.com cautious phased-in unsuper- vised access. Review was held of order for supervised access. Fa- ther granted phased-in unsuper- vised access. Risk to children was minimal or non-existent. Chil- dren were strongly connected with father. Commencing with next access visit, first two hours were unsupervised and balance of visit was supervised. After four months, first half of visits was unsupervised and balance of visit was supervised. Matter was reviewable after that time but implementation of regular, un- supervised access schedule was contemplated. Bhatia-Matta v. Matta (2017), 2017 CarswellOnt 4349, 2017 ONSC 1596, Van Melle J. (Ont. S.C.J.). SUPPORT Child support under federal and provincial guidelines Lump sum disability award allocated over father's expected life span Father received tax free lump sum disability award from Vet- erans Affairs Canada totaling $343,349.99. Mother and father started living together in 2005 and separated in 2010. Parties were parents of two children and had joint custody of both chil- dren. Father was veteran and was diagnosed with Post Traumatic Stress Disorder (PTSD). Lump sum disability award compen- sated father for rest of his life for serious injuries and disabilities suffered by him as result of his military service. Mother brought application to have lump sum disability award be taken into account and included as income for purposes of calculating child support. Application granted. It would be unjust to include full amount of lump sum amounts in father's income in years they were received, or to spread those pay- ments out over period of 10 or so years as put forward by mother. However, father's lifestyle did im- prove as result of lump sum pay- ment. Lump sum allocated over father's expected life span. For 2015, father's income calculated at amount of $75,918.00 and child support was payable for amount of $1,117.00 per month from Sep- tember 1, 2016- May 1, 2017. For 2016, father's income calculated at amount of $95,536.00 and child support was payable for. Father owed child support arrears in amount of $2,644.00. Hewitt v. Rogers (2018), 2018 CarswellOnt 3106, 2018 ONSC 1384, A. Trousdale J. (Ont. S.C.J.). Insurance CONTRACT OF INDEMNITY Subrogation Insurer's action in plaintiffs' name null where plaintiffs lacking capacity to commence action due to bankruptcies Plaintiffs purchased home and arranged for defendants to de- liver fuel oil. Entire shipment of oil escaped and contaminated property. At time of oil leak, wife had no ownership inter- est in property as she had been recently discharged from bank- ruptcy subject to stipulation that her interest in property remained vested in her trustee. Wife re- mained named insured under homeowners' policy on prop- erty which covered loss and also contained subrogation clause. Husband filed assignment and trustee replaced husband on title to property. Insurer brought ac- tion for damages for tort, breach of contract and breaches of statu- tory duty. In motion to strike claim, defendants unsuccessfully argued plaintiffs lacked capacity to commence action because of their bankruptcies and insurer's action in their names was null. Both motion judge and Division- al court allowed insurer's claim to proceed emphasizing substance over form. Defendants appealed. Appeal allowed. Cause of action did not vest in insurer before hus- band's bankruptcy by operation of common law doctrine of sub- rogation. Insurer's argument that right to any proceeds of litigation that might be recovered could not vest in trustee by virtue of s. 67(1)(a) of Bankruptcy and In- solvency Act (Act), and therefore cause of action to recover those proceeds could not have vested in trustee was rejected. At time of assignment, insurer had not acquired any proprietary interest in cause of action; husband had not assigned his cause of action to insurer; and trustee had not dis- claimed its interest in cause of ac- tion by executing disclaimer. In- surer was not entitled to remedial order under ss. 38 or 40 of Act. To have normalized action, insurer required order under s. 40(2) of Act to be effective day before it commenced action in husband's name but he did not receive abso- lute discharge until later. Some- times date of discharge could be varied, however, not in present case and therefore, no order un- der s. 40(2) of Act could re-convey cause of action. Further, nunc pro tunc order could not be granted based on passage of relevant limi- tation period. Douglas v. Stan Fergusson Fuels Ltd. (2018), 2018 Carswel- lOnt 3550, 2018 ONCA 192, Alexandra Hoy A.C.J.O., Paul Rouleau J.A., C.W. Hourigan J.A., M.L. Benotto J.A., and Lois Roberts J.A. (Ont. C.A.); re- versed (2016), 2016 CarswellOnt 536, 2016 ONSC 442, Marrocco A.C.J.S.C., Herold J., and Whit- ten J. (Ont. Div. Ct.). Municipal Law BYLAWS Operation and effect Appropriate parties were not given notice or opportunity to be heard Two city residents unsuccess- fully moved for leave to appeal decision of Ontario Municipal Board approving two city by- laws putting in place 47-ward structure for 2018 municipal election and following elec- tions. Residents claimed bylaws created legal vacuum because city council failed to pass bylaw changing composition of coun- cil from 44 to 47. City brought application for declarations that bylaws did not come into effect until after October 2018 mu- nicipal election, composition of council was one councillor for each ward, that election be con- ducted as if bylaws were already in force. Application dismissed. There was no legal dispute be- tween city and residents about respective rights or interests. Proposed declaration poten- tially affected all voters in city. Appropriate parties were not given notice or opportunity to be heard. City of Toronto v. Natale (2018), 2018 CarswellOnt 3597, 2018 ONSC 1608, Swinton J. (Ont. S.C.J.). Natural Resources WATERS AND WATERCOURSES Riparian rights Accretion suggested slow, gradual process of receding waters, not engineered process Provincial government trans- ferred water lot adjacent to original shoreline of lake to fed- eral government in 1950. Due to erroneous belief that there was no parcel between shoreline and nearby road, no one had sought any kind of consent from prop- erty owners' predecessors in title. Federal government con- structed wharf facility on water lot and used gravel landfill to extend shore. Federal govern- ment transferred water lot to residents' association in 1999. Property owners acquired their property in 2012, including secondary parcel between road and original shoreline. Own- ers brought application against residents' association, federal government, and provincial government for declaration that owners had title to extended shore. Application dismissed. While owners did in fact own parcel between road and origi- nal shoreline, owners did not own extended shore. There was significant difference between naturally occurring change in shoreline and man-made land- fill that extended from shore into area that previously was fully part of lake. Term accre- tion suggested slow, gradual process of receding waters, and not engineered process that takes place as part of construc- tion project. Leading authors had opined that accretion to property abutting lake or wa- terway had to be naturally oc- curring phenomenon, and not artificially created landfill. Ex- tended shore was once simply water and was part of water lot, and it was still part and parcel of water lot. Mihaylov v. Long Beach Residents' Association (2018), 2018 CarswellOnt 3337, 2018 ONSC 14, E.M. Morgan J. (Ont. S.C.J.). Real Property LANDLORD AND TENANT Forfeiture and re-entry Relief from forfeiture not granted to tenant who operated medical marijuana dispensary without licence Parties entered into five-year commercial lease for ground f loor of two-storey property. Landlord locked tenant out of premises al- leging it breached lease by using premises for purposes other than legal medical marijuana dispen- sary. Tenant applied for relief from forfeiture of lease. Applica- tion dismissed. Tenant had not provided any evidence to dem- onstrate it obtained necessary approvals and permits to act as medical marijuana dispensary. Tenant operated medical mari- juana dispensary without licence. Tenant was not person who re- quired cannabis for its business as licenced dealer, it was not exempt from provisions of Controlled Drugs and Substances Act, and its possession and distribution of marijuana was contrary to law. Relief from forfeiture would only be granted in exceptional circum- stances. Tenant's conduct showed wilful disregard for law. Landlord was in position to terminate lease. Lease and remaining amounts of rental and security deposits had been forfeited. 2536715 Ontario Inc. v. 9522158 Canada Inc. (2018), 2018 CarswellOnt 3464, 2018 ONSC 1412, O'Bonsawin J. (Ont. S.C.J.). MORTGAGES Action on the covenant Fee applied by mortgagees not enforceable against equity Applicants owned property. They gave third mortgage to pur- chasers for $1.1 million at 11.75 percent, on June 17, 2015 for term of one year at which time princi- pal and interest were to be paid unless mortgage was renewed. Applicants never notified mort- gagees about any intention to re- new. Mortgage matured and full principal and interest remained outstanding. From date of ma- turity, mortgage had been and remained in default. Applicants brought application seeking dec- laration that they be permitted to redeem purchasers' third mort- gage. They also sought injunc- tion preventing mortgagees' sale to their purchaser. Application dismissed. Mortgagees did not fail to provide discharge state- ment since, at time applicants made demand, mortgagees had sale of the property, although only conditional. In covenant at issue, fee applied by mortgagees was not enforceable against eq- uity. Right of enforcement of this aspect of mortgagees' claim was against mortgagors on covenant, not against security in property. Attalla v. Moody (2017), 2017 CarswellOnt 4350, 2017 ONSC 1971, Trimble J. (Ont. S.C.J.). MORTGAGES Sale Land Titles Act superseded provisions of Mortgage Act Appellant company purchased property, under first mortgagee's power of sale. Respondent group of first mortgagees claimed they never received notice of sale. First mortgagees brought action against company. Company was found to be bona fide purchaser for value. Company was found to have notice that sale was defec- tive, and that valid title to prop- erty was not obtained. As part of sale, mortgage brokers pro- vided financing to company and took first mortgage on property. Company claimed trial judge applied wrong test for actual no- tice. Company claimed that trial judge erred in finding mortgages invalid. Company and post-sale mortgagees appealed from trial judgment. Appeal allowed. Ac- tual notice had not been received by company. Company did not know of defect, and could not have been expected to correct it. Land Titles Act superseded provi- sions of Mortgage Act. Evidence relied upon by company was not nullity. Purchaser did not have to investigate past dealings with land or title. Post-sale mortgagees did not have notice of defect. Stanbarr Services Limited v. Metropolis Properties Inc. (2018), 2018 CarswellOnt 3665, 2018 ONCA 244, Doherty J.A., S.E. Pepall J.A., and C.W. Hou- rigan J.A. (Ont. C.A.); reversed (2015), 2015 CarswellOnt 12791, 2015 ONSC 5249, W. Matheson J. (Ont. S.C.J.). (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 2784, 2016 ONSC 1258, Mathe- son J. (Ont. S.C.J.). Remedies DAMAGES Damages in tort Impairment of important function was serious as it related to his ability to continue his usual employment and activities of daily living Plaintiff commenced action for damages arising from motor vehicle accident. Jury awarded plaintiff $150,000 for general damages. Defendant brought motion for declaration that plain- tiff 's claim for non-pecuniary loss was barred. Motion dismissed. Plaintiff was in daily pain from which there was no likely recov- ery period, and it substantially interfered with most of his usual activities of daily living. Function which was impaired was impor- tant one for usual activities of daily life for someone who was plaintiff 's age. Impairment of im- portant function was serious as it related to his ability to continue his usual employment and activi- ties of daily living. Pupo v. Venditti (2017), 2017 CarswellOnt 4686, 2017 ONSC 1519, D.L. Edwards J. (Ont. S.C.J.). CASELAW

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