REAL ESTATE AGENTS AND BROKERS

No obligation on part of defendant to pay commission

Defendant had home for sale and had it on MLS through Property Guys. Sales representative saw home on MLS system and sent it to clients. Clients did not respond to sales representative. Clients went to open house for home on own. Sales representative drafted offer to purchase and sent it to defendant which contained 2.5 per cent commission rate. Property sold on basis of agreement drawn up using materials from Property Guys. Clients submitted offer though Property Guys website. Effective agreement of purchase and sale did not provide for commission. Plaintiff sought to recover real estate commission owing on sale of defendant’s home. Judge retired to consider decision. Judge realized she conducted judicial pre-trial of matter previously. Judge declared mistrial. Parties consented to Superior Court Judge giving judgment based on transcript evidence. Action was dismissed. There was no obligation on part of defendant to pay commission. Efforts expended to try to obtain contract for sale of property were insufficient to generate payment if no agreement for sale of property was ever reached.
Sutton Group Innovative Reality Inc. v. Turner (Dec. 6, 2012, Ont. S.C.J., C.S. Glithero J., File No. SC-11-10715-00) 224 A.C.W.S. (3d) 2.

TAXES

Assessment arbitrary as licence agreement between parties not reviewed

Applicant held non-exclusive licence from Greater Toronto Airport Authority (“GTAA”) to common areas at airport under which applicant was authorized to install and maintain advertising displays. GTAA controlled all aspects of applicant’s business. Applicant was never assessed as taxable. Municipal Property Assessment Corporation (“MPAC”) unilaterally and retroactively assessed GTAA’s advertising displays to applicant as part of overall assessment of airport. Applicant argued applicant was not tenant of Crown. Assessment was quashed. Applicant was not liable for taxable assessment. Applicant was not occupant or tenant or person in possession. Applicant was service provider for GTAA. GTAA maintained total control over premises all advertising was controlled by GTAA. Applicant paid no rent and GTAA received vast majority of gross revenues from advertising revenue. Applicant paid all of operating expenses out of remaining funds before applicant received any income. GTAA’s business use of premises was paramount and applicant’s use was subordinate. MPAC did not assess indoor signs anywhere else and MPAC’s actions were discriminatory, unfair and unequal. Assessment was arbitrary on MPAC’s part in that MPAC never reviewed licence agreement between parties before issuing taxation assessment.
Clear Channel Outdoor Co. Canada v. Municipal Property Assessment Corp. (Dec. 10, 2012, Ont. S.C.J., Snowie J., File No. CV-11-5011-00) 224 A.C.W.S. (3d) 18.

IMPLIED TERMS

Judge erred by implying and then enforcing term of contract

Appeal from order dismissing action to collect amount outstanding under renovation contract. Respondent homeowners retained appellant to design and oversee home renovations. Appellant agreed in writing to purchase supplies and obtain services of subcontractors to carry out work, and specifically did not warrant products or work. Appellant incurred expenses of $32,077 and charged $7,635 for professional services. Respondents paid $16,985 prior to completion of work then refused to pay anything further claiming dissatisfaction with various aspects of work. Appellant filed lien and commenced action to collect outstanding $22,727. Respondents counterclaimed, seeking $50,000 for repairs and $15,000 for punitive damages. Trial judge found appellant breached contract by failing to provide existing warranties and information that would have allowed respondents to pursue remedies directly against suppliers and sub-contractors in timely fashion. Judge found claims offset each other and neither party entitled to any amount. Appeal allowed. Trial judge erred by failing to enforce terms of contract, specifically term excluding any warranty for products or work. Judge also erred by implying and then enforcing term requiring appellant to provide existing warranties and information. Term not part of contract and not pleaded. Judge also erred by finding respondents entitled to claim breach of warranty for products or work not paid for. Appeal should be allowed and judgment below set aside. Making order that should have been made, appellant entitled to judgment for $22,727 plus interest and counterclaim dismissed.
Zimon v. Turnbull (Dec. 19, 2012, Ont. S.C.J. (Div. Ct.), Swinton, Matlow and Aston JJ., File No. DC-10-241) 223 A.C.W.S. (3d) 953.

OCCUPATIONAL HEALTH AND SAFETY

Just because accident occurred where worker may be, it does not become workplace accident

Applicant operated resort that comprised ski runs, inn and recreational facilities. Guest at applicant’s premises drowned in unsupervised swimming pool. Applicant did not notify inspector of occurrence pursuant to s. 51(1) of Occupational Health and Safety Act (Ont.), since person who drowned was not worker. Respondent, in capacity as inspector, made order pursuant to s. 51(1) of Act. Ontario Labour Relations Board upheld inspector’s order, concluding “person” not synonymous with “worker” and finding that area where employees performed work functions was “workplace” and fact employee not physically present did not mean that particular section not part of workplace. Board found that drowning of guest triggered reporting obligation under s. 51(1), as it involved “person” who was killed from any cause at “workplace”. Application for judicial review dismissed but appeal allowed and order to report set aside. While language “where a person is . . . critically injured from any cause at a workplace” in s. 51(1) undoubtedly intended to capture wide range of injury-related occurrences affecting safety and wellbeing of workers and public welfare legislation to be interpreted liberally, limitless interpretation not appropriate. Interpretation given by board and Divisional Court to language of s. 51(1) extended reach of legislation far beyond what was intended or needed to give effect to purposes of legislation. Just because accident occurred at place where worker may be at some point in time, accident does not become workplace accident. Broad language may be given restrictive interpretation in order to avoid absurdity. Board’s conclusion, founded on what was, in effect, entirely location-based analysis, did not fall within range of possible, acceptable outcomes. Intrusive effect of s. 51(2), which requires injury site to be preserved until released by inspector, combined with overly broad interpretation of reporting requirements of s. 51(1), has potential to give Ministry and inspectors significantly intrusive powers beyond what is reasonably required to accomplish purpose of preserving and promoting worker safety. Section 51(1) not engaged unless some reasonable nexus between hazard giving rise to injury and realistic risk to worker safety at site of incident. Workplace is where worker carrying out employment duties at time incident occurs or might reasonably be expected to be carrying out such duties in ordinary course. No evidence guest’s death in pool caused by any hazard that could affect safety of worker.
Blue Mountain Resorts Ltd. v. Bok (Feb. 7, 2013, Ont. C.A., Blair, MacPherson and Armstrong JJ.A., File No. C54427) Decision at 335 D.L.R. (4th) 483, 202 A.C.W.S. (3d) 303 was reversed. 223 A.C.W.S. (3d) 967.

CLASS ACTIONS

Additional fee made class counsel’s compensation manifestly disproportionate to results achieved

Appellant appealed motion judge’s decision to award class counsel additional fee. This was class proceeding that alleged that appellant knowingly sent travellers to group of resorts in Dominican Republic while there was outbreak of norovirus at resorts. Parties reached settlement agreement that created settlement fund of $2.25 million for class of approximately 4,000 members. Appellant agreed to pay initial counsel fee of $600,000. Settlement was approved, including initial counsel fee. After settlement was fully administered $333,307 had been paid to 354 class members who submitted eligible claims, which represented take-up rate of 8.85% of class members or 16.7% of settlement fund. Additional class counsel fee of $395,000 was approved. Appeal dismissed. Motion judge’s analysis minimized significance of actual recovery to class and led him to award fee that was grossly disproportionate to results achieved and risk undertaken. In context of case take-up rate had heightened significance that was not adequately recognized by motion judge in his analysis of value of settlement. When it was uncertain how many class members would make claims under settlement, it was when take-up rate was known that information relevant to assessing results achieved was present and it was then that connection between efforts of counsel and what was achieved for class could be assessed. Take-up rate was appropriate measure of results achieved, as it reflected actual benefit to class. Risk taken on by class counsel had already been recognized and rewarded. Result achieved was that approximately 9% of class received compensation through efforts of class counsel and compensation amounted to one-sixth of total negotiated fund. Addition of the $395,000 fee resulted in total class counsel fee of almost $1 million, which was nearly three times value of settlement to class. Approval of additional fee made class counsel’s compensation manifestly disproportionate to results achieved for class. Fee of $600,000 was fair and reasonable compensation in circumstances and additional fee of $395,000 to class counsel was set aside.
Lavier v. MyTravel Canada Holidays Inc. (Feb. 14, 2013, Ont. C.A., Laskin, MacPherson and Gillese JJ.A., File No. C55662) Decision at 212 A.C.W.S. (3d) 637 was reversed. 223 A.C.W.S. (3d) 778.

JUDICIAL REVIEW

Director obligated to file record of proceedings

Motion by complainant for order requiring Independent Police Review Director to file record of proceedings. Complainant was involved in incident with municipal police and provincial police. Complainant filed separate complaints against both police forces with director. Director concluded it did not have jurisdiction to deal with either matter due to absence of apparent breach of Police Services Act (Ont.) (“PSA”), or its Code of Conduct. Complainant commenced application for judicial review. Director took position that it was not obligated to file record of proceedings. Motion granted. Director had exercised statutory power of decision within meaning of s. 1 of Judicial Review Procedure Act (Ont.) (“JRPA”). Consequently, director was obligated to file record of proceedings pursuant to s. 10 of JRPA. Any member of public could make complaint against police force pursuant to s. 58 of PSA. Ability to make such complaint was statutory right. Director had corresponding statutory duty to review every complaint and determine whether it was about policies of or services provided by police. Director’s decision at that stage was to screen complaints out, not to screen complaints in.
Endicott v. Ontario (Director, Office of the Independent Police Review) (Nov. 2, 2012, Ont. S.C.J. (Div. Ct.), Kiteley J., File No. 42/12) 223 A.C.W.S. (3d) 742.