Law Times

Page 14 farmers or investors. Legislative purpose and legislative history were not helpful in determining meaning of phrase. Most recent authority from Court of Appeal was that term owner meant legal owner of land. Presumption of consistent expression and presumption against tautology were very important in construing taxation statute. "Owner" could not be given different meanings in act and regulation depending on context, as that would promote unpredictability and uncertainty. If different term was used such as "beneficial interest" in s. 9(2)1 of regulation, it was because different meaning was intended. It could be presumed that no provision, such as inclusion of "trust" in s. 8(2)3 was unnecessary. It could be presumed that if "owner" meant legal owner in one s. it had same meaning elsewhere in act and regulation. Section 19(5.1) was not rendered meaningless if ownership was restricted to legal ownership. Phrase "land owned by" in s. 8(2)3 of regulation as it related to real property was restricted to legal ownership. It did not include both beneficial and legal ownership. Walton International Group Inc. v. Ontario (Administrator, Farm Property Class Tax Rate Program) (July 23, 2012, Ont. S.C.J. (Div. Ct.), Aston, Sachs and Herman JJ., File No. 382/11) 219 A.C.W.S. (3d) 21 (17 pp.). Bankruptcy And Insolvency COURTS AND PROCEDURE Costs award constituted afteracquired property of bankrupt This was to determine whether costs award against creditor of estate in bankruptcy could be set-off against proven claim in favour of creditor. Creditor sought order declaring that $92,994 costs award against it in favour of bankrupt be setoff against $415,706 proven unsecured claim in favour of creditor in estate in bankruptcy. Application dismissed. There was no legal set-off. Creditor's debt for costs arose after date of bankruptcy. There was no mutual and cross-obligation at that point in time. Creditor's debt for costs was debt owed to bankrupt personally. Proven claim of creditor as creditor of bankrupt was debt of estate in bankruptcy. Claim of fraud, conversion and breach of trust was discrete claim and adverse costs award related to discrete matter. Claim of fraud, conversion and breach of contract were not sufficiently connected to contractual relationship and series of business events between parties that gave rise to creditor's proven claim in estate in bankruptcy. Claimed set-off did not fall within ambit of law of set-off in s. 97(3) of Bankruptcy and Insolvency Act (Can.). Costs award constituted after-acquired property of bankrupt. King Insurance Finance (Wines) Inc. v. 1557359 Ontario Inc. (July December 10, 2012 Law Times • CASELAW 23, 2012, Ont. S.C.J., Cumming J., File No. BK-09-011740930031; 08-CV-351344PD1) Additional reasons to 211 A.C.W.S. (3d) 266. 219 A.C.W.S. (3d) 25 (7 pp.). Civil Procedure CLASS ACTIONS Expert's credentials and experience did not give him specialized knowledge about camera design Plaintiffs appealed dismissal of motion to certify action as class action. Action was proposed on behalf of owners of cameras manufactured and distributed by defendants. It was alleged that cameras had common design defect that caused them to display error message and become inoperative. Motions judge found that plaintiffs failed to satisfy requisite criteria for certification under s. 5(1) of Class Proceedings Act, 1992 (Ont.). Motions judge found that there was no basis in fact for allegation of common design defect in plaintiffs' camera or cameras identified more generally in class. Motions judge struck out evidence of plaintiffs' expert witness on basis that he was not properly qualified expert. Appeal dismissed. Standard of review was correctness. Motions judge did not err in striking out evidence of plaintiff 's expert or in finding no basis in fact for common issue. Only qualified expert could give opinion evidence. Plaintiff 's expert did not have qualifications necessary to provide opinion about camera design in general or optical lenses in particular. Motions judge was correct in articulation of legal test. Motions judge did not misapprehend nature or meaning of opinion. On evidence before him it was open to motions judge to conclude that expert's academic credentials and experience did not give him specialized knowledge about camera design or defects. Motions judge did not err in striking out evidence. Once expert's evidence was struck out there was no remaining evidence that was capable of satisfying threshold under s. 5(1)(c) of Act. Plaintiffs failed to establish requisite degree of commonality. Even if expert's evidence had not been struck out, nature of evidence was such that it would not have provided basis in fact for common issue. Williams v. Canon Canada Inc. (June 21, 2012, Ont. S.C.J. (Div. Ct.), Pomerance, Aston and Herman JJ., File No. 548/11) Decision at 209 A.C.W.S. (3d) 760 was affirmed. 219 A.C.W.S. (3d) 33 (15 pp.). SUMMARY JUDGMENT Ample evidence on which to base claim without necessity of obtaining expert opinions Appellants appealed dismissal of motion for summary judgment. Appellants constructed respondents' new house. Respondents entered into separate contract with third parties to install stucco finish on exterior of home. Respondents took possession of home in December 2005. In spring 2006, respondents observed water leakage around certain windows and doors and damage to floors. House leaked in four locations. Parties met. Appellants did not fix problem. Home was inspected by engineers in 2008. Respondents' engineers indicated that leaks were caused by appellants while appellants' engineer indicated that leaks were caused by third parties. Respondents commenced action on November 17, 2009. Appellants brought summary judgment motion to dismiss action on basis that it was statutebarred. Motions judge found that respondents' claim was not barred by two-year limitation period set out in Limitation Act, 2002 (Ont.), and dismissed motion. Appeal allowed. By August 2007 and certainly by Nov. 1, 2007, respondents were familiar with material facts. They knew they contracted with both appellants and third parties. They knew they had suffered loss and acts or omissions were caused by either appellants or third parties or both. There was ample evidence on which to base claim against appellants without necessity of obtaining expert opinions. Motion judge erred in finding that respondents needed to obtain expert opinions before determining that they had cause of action against appellants. No expert report was required to advance claim that appellants had duty to oversee third parties' work. Action was statute-barred. Kowal v. Shyiak (July 25, 2012, Ont. C.A., Rouleau, Watt and Pepall JJ.A., File No. C54684) Decision at 211 A.C.W.S. (3d) 60 was reversed. 219 A.C.W.S. (3d) 87 (8 pp.). Damages PERSONAL INJURIES Doctor could not relegate obligation to ensure informed consent to spouse of patient Defendant performed breast augmentation and tummy tuck with liposuction on plaintiff. Plaintiff sued doctor and clinic for negligence and lack of informed consent. Plaintiff and plaintiff 's husband claimed risks of surgeries were never fully explained. Plaintiffs were dissatisfied with results of surgery. Breasts were too large for plaintiff 's frame, were asymmetrical and nipples faced different directions. Plaintiff was left with large scar. Plaintiff had no fluency in basic English. Plaintiff 's husband spoke English. Defendant doctor failed to obtain informed consent. There was special duty on defendant doctor to be certain patient understood risks and alternative available. Doctor could not relegate obligation to ensure informed consent to employee or spouse of patient. Doctor was not able to rely unduly on husband to explain risks second-hand. General damages were fixed at $70,000. Plaintiff 's loss of past and future income www.lawtimesnews.com was $9,600. Claims against clinic were dismissed. There was no evidence of negligence in pre-operative or post-operative care or in administration of anesthesia. There was no evidence on breach of standard of care by doctor and there was no finding doctor breached standard of care. Tiglao v. Sleightholm (July 6, 2012, Ont. S.C.J., Snowie J., File No. CV-09-3256-00SR) 219 A.C.W.S. (3d) 217 (29 pp.). Family Law CUSTODY Father's new spouse took controversial role and overstepped boundaries Parties had one child. Both parents were remarried and had children with new spouses. Parties entered separation agreement. Minutes of settlement led to order that parties have joint custody with principal residence being with mother. Father was entitled to access. Further final order was made on consent providing mother was primary caregiver. Each parent sought sole custody. Father's new spouse was often in breach of provisions of orders contributing to conflict in case. There was material change in circumstances. Orders were not always followed. Level ofconflict escalated. Joint custody existed in name only. Neither party wished to continue under existing orders. Mother was to have custody. Father did not provide evidence that would justify changing status quo of child residing primarily with mother. Father's focus and priority was more on father's owninterests than on child's. Father's new spouse took too prominent and controversial role and overstepped boundaries. Father did not recognize this and did not take appropriate steps to see that spouse acted properly for benefit of child. It was not appropriate case for joint custody or parallelparenting regime. Father was to have access as set out. Yasinchuk v. Farkas (Apr. 2, 2012, Ont. S.C.J., Wilcox J., File No. 13829-04(03)) 219 A.C.W.S. (3d) 131 (23 pp.). Hotels And Restaurants LIQUOR CONTROL Evidence appellant convicted of regulatory offence for same acts properly admissible Appeal by sports bar from board's suspension of its liquor licence for 14 days. Board found appellant permitted drunkenness on its premises in contravention of Liquor Licence Act (Ont.). Court only had jurisdiction to hear questions of law. Appellant argued board denied procedural fairness and incorrectly drew adverse inference by its failure to call patron, who was compelled by registrar to attend hearing, as witness. Appeal dismissed. That two board members heard similar matter in 2006 did not amount to denial of procedural fairness and appellant never ob- jected at hearing. Evidence appellant was convicted of regulatory offence for same acts was properly admissible. Board's decision to draw adverse inference was finding of fact. Board recited salient evidence from witnesses and explained why it preferred inspector's evidence. Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission, Registrar) (June 21, 2012, Ont. S.C.J. (Div. Ct.), Aston, Herman and Pomerance JJ., File No. 306/10) 219 A.C.W.S. (3d) 186 (6 pp.). Insurance LIABILITY INSURANCE Costs incurred were compliance costs, not defence costs This was appeal from dismissal of insured's application that insurers had duty to defend. Insurer sought declaration that insurers had duty to defend it in respect of request by Ministry of Environment (MOE) to provide certain information that related to contamination of groundwater near industrial property it once owned. TCE had been discovered on property. Application judge concluded that there was no duty to defend and dismissed application. Appeal dismissed. Application judge did not misinterpret letter sent by MOE to insured. Only evidence of claim by MOE in letter was request or requirement that insured take action in delineating source of TCE contamination. Insurer voluntarily complied with MOE's request. It did not suffer any defence or investigation costs that were recoverable under insurance policies. Costs incurred were compliance costs, not defence costs. Application judge read and understood plain language of letter and correctly applied pleadings rule in arriving at conclusion. Application judge did not fail to consider underlying statutory scheme of Environmental Protection Act (Ont.), and range of liabilities for property damage that might be imposed on insured, as to do so would have invited speculation. General Electric Canada Co. v. Aviva Canada Inc. (Aug. 2, 2012, Ont. C.A., Weiler, Armstrong and Rouleau JJ.A., File No. C53139) Decision at 216 A.C.W.S. (3d) 1000 was affirmed. 219 A.C.W.S. (3d) 193 (17 pp.). Pensions CONTRIBUTIONS Bonus retention payments not paid as rule or usual or customary Applicant sought declaration that retention bonuses under employment agreement with OHA constituted pensionable earnings under Healthcare of Ontario Pension Plan for purpose of calculating pension benefits under plan. Application was dismissed. Three bonus retention payments were not pensionable earnings within meaning of plan. Meaning of "regular" in plan required amounts paid to employee to be paid as rule or usual or customary. Three bonus retention pay-

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