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Ontario Civil

Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Damages

MALICIOUS PROSECUTION

Defendant lied to police to cover up his own negligence

Plaintiff drove to gas station to fill his tire and saw area marked off by cones for fuel truck. Plaintiff drove through what he saw was open lane and defendant fuel truck driver waved plaintiff to a stop, put his legs in contact with plaintiff’s bumper and then reported plaintiff to police for striking him. As a result, plaintiff was charged with mischief and dangerous driving and commenced action against defendant alleging malicious prosecution to which defendant did not respond. Motion by plaintiff for default judgment for legal fees and rent for accommodation for six months because charges prevented him from entering United States where he had bought home. Motion granted. Defendant initiated and was instrumental in criminal proceedings against plaintiff, and plaintiff was acquitted so proceedings were clearly terminated in his favour. Plaintiff established defendant lacked subjective basis for making complaint and evidence described man who was angry and vindictive at what he saw as plaintiff’s disregard for his cones. Defendant lied to police to cover up his own negligent cone placement and plaintiff did nothing more than drive through what he saw as open lane and stop to avoid defendant. Improper purpose and malice established. Plaintiff granted judgment for $23,866.37.
Drainville v. Vilchez (Jul. 4, 2014, Ont. S.C.J., P.H. Howden J., File No. Newmarket CV-12-110766-00) 242 A.C.W.S. (3d) 986.

Contempt of Court

GROUNDS

By unilaterally transferring schools without consent of father mother willfully breached order

Mother taught at elementary school in Brampton. Mother saw that daughter was having social problems at school in Mississauga, and younger son was having academic difficulties. Mother unilaterally transferred children from school in Mississauga to her school in Brampton. Mother claimed she tried to contact father week earlier by phone but he became angry and hung up. Father had recently re-located home to be closer to children’s home and Mississauga school in order to reduce travel time during access visits. Court order required parties to bring any dispute regarding custody or access, including children’s education, to court for resolution if it could not be resolved by mediation. Father brought motion to have mother found in contempt of court order. Motion granted. By unilaterally transferring children’s schools without consent of father who shared custody and without leave of court, mother wilfully breached court order. Limited evidence did not allow court to assess whether transfer of children to new school was necessary or appropriate. Transfer added to distance father and children were required to travel when he exercised access and it deprived father of opportunity to challenge mother’s decision that transfer of schools was in children’s best interests. Court was reluctant to order further change in schools until Office of Children’s Lawyer (OCL) provided assessment. Mother’s unilateral transfer of children to new school in violation of court order with negative impact to father’s access was material change of circumstances that required fresh consideration of what arrangements were in children’s best interests. Order was varied. Pending assessment by OCL, it was in children’s best interests that negative impact of transfer on father’s access be remedied by interim variation of older son’s residence to father and increase in father’s weekend access to two other children.
Skura v. Fibingr (Feb. 14, 2014, Ont. S.C.J., Price J., File No. Brampton FS-08-3792) 241 A.C.W.S. (3d) 326.

Appeal

GROUNDS

Not clear what acts trial judge found rose to level of insubordination, recklessness and/or gross negligence

Parties entered into contract where plaintiff was appointed property management company. Defendant condominium corporation terminated agreement for cause. In Small Claims action, plaintiff sought damages of $8,303.24 from defendant for breach of contract. Trial judge found that collectively grounds relied on by defendant were sufficient to constitute insubordination, recklessness and/or gross negligence that entitled defendant to terminate agreement without notice. Claim was dismissed. Plaintiff appealed. Appeal allowed. Trial judge’s reasons were not sufficient. What was decided was unclear. It was not clear what acts or omissions trial judge found collectively rose to level of insubordination, recklessness and/or gross negligence. Trial judge did not provide answers as to why he made finding. There was no window into decision to allow for meaningful appellate review.
Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231 (Jun. 16, 2014, Ont. S.C.J., David L. Edwards J., File No. CV-13-39-00) 241 A.C.W.S. (3d) 262.

Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY

By-law did not impact or intrude on core of federal power

Applicant operated aerodome in respondent city. Applicant had been undertaking number of improvements to aerodome that involved use of fill. Applicant refused to comply with city’s by-law because aerodomes fell under federal jurisdiction and by-law did not apply to it. Parties brought competing applications. Application judge declared that by-law was valid and binding on applicant in respect to landfill activities. Applicant appealed. Appeal dismissed. Application judge undertook relevant analysis in determining whether interjurisdictional immunity applied. Application judge correctly characterized by-law. Real issue was whether by-law impermissibly trenched on core of federal aeronautic power. Effect of by-law was not to improperly intrude into development of aerodrome qua aeronautical enterprise. By-law was designed to regulate quality of fill and prevent use of toxic or contaminated fill in city. By-law did not impact or intrude on core of federal power.
Burlington Airpark Inc. v. Burlington (City) (Jun. 13, 2014, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and E.E. Gillese J.A., File No. CA C57908) Decision at 234 A.C.W.S. (3d) 896 was affirmed.  241 A.C.W.S. (3d) 106.

Air Law

CARRIAGE

Airline had been entitled to refuse plaintiff return transport

Plaintiff, Canadian citizen, travelled from Canada to Jamaica on defendant airline for vacation using Canadian Citizenship Card as identification. When plaintiff attempted return to Canada one week later, airline refused permission to board without passport. Plaintiff produced Ontario driver’s licence, Ontario health insurance plan card and social insurance card, but airline refused to issue boarding pass without passport. Plaintiff made no effort to obtain emergency Canadian passport, but did obtain Jamaican passport and returned to Canada two weeks later. Plaintiff brought action for damages for breach of contract and negligence. Action dismissed. Both legislation and government policy required airlines to thoroughly screen passengers travelling to Canada so as to ensure they would be permitted entry on arrival. Defendant’s International and Trans-Border Tariff, required by regulation, gave airline right to refuse transport for any reason, including if travel documents not in order, and stipulated that airline not liable for any refusal to transport. Tariff also provided that any passenger desiring transport across international or transborder boundary responsible for obtaining all necessary travel documents. Identity Screening Regulations (Can.), under Aeronautics Act (Can.), required international passengers to produce government issued photo identification including name, date of birth and gender or restricted area identification card but did not claim exclusivity. Canada Border Services Agency published guide confirming transporters’ responsibility to ensure passengers properly documented and identifying passport as only reliable and universally accepted identification document. Guide also confirmed international transportation companies could require passengers to present passports and that passengers presenting other documents, such as Canadian Citizenship Card, could be subject to delays or refusals to transport. It specified Canadian Citizenship Card not travel document, but could be used as evidence of citizenship in Canada. Airline had been entitled to refuse plaintiff transport and had, in fact, operated in accordance with directives from Canada Border Services Agency concerning fraudulent use of Canadian Citizenship Cards in Jamaica.
Robotham v. WestJet Airlines (May. 26, 2014, Ont. S.C.J., Spence J., File No. CV-12-448628) 241 A.C.W.S. (3d) 4.

Contracts

DAMAGES

Individual defendants gave no indication they were agents for another party

Plaintiff brought claim for unpaid balance of two accounts for marketing services rendered, in total amount of $14,139.69. Plaintiff alleged that its contract was with individuals defendants and that it did not know until after contract formation that there was alleged to be corporation involved. Additionally or alternatively they have sued defendant numbered company. Individual defendants claimed they had no liability in matter, but admitted that plaintiff was owed amount of $4,230.33. Action allowed. Corporate defendant’s client services manager authorized work performed by plaintiff. Defendants never complained about invoices until matter was brought to court. Plaintiff was entitled to judgment on its claim for $14,139.69. Individual defendants gave no indication they were agents for another party or parties nor that incorporated entity was involved. It was reasonable for plaintiff to perceive and to believe that it was contracting with those two individuals carrying on business in their own right when it contracted for services giving rise to invoices. Judgment was granted against individual defendants only.
Mad Hatter Technology Inc. v. Short (May. 10, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1974/13, 1974D1/13) 240 A.C.W.S. (3d) 861.

Civil Procedure

SUMMARY JUDGMENT

Man’s contention he had been taken advantage of was bald allegation

Appellant man and respondent woman were engaged in matrimonial litigation. Man withdrew funds from parties’ joint line of credit for his personal and business uses, and signed documents promising to repay amounts. Judge granted woman and corporation’s motion for summary judgment requiring man to repay $195,539 to parties’ joint line of credit and $10,000 to corporation, and awarded costs of $40,000 against him. Man appealed and brought motion for leave to appeal costs award. Appeal and motion dismissed. Each repayment obligation had matured. Man’s contention that he was vulnerable and had been taken advantage of by woman was bald allegation unsupported by any evidence. At best, man had claim in matrimonial proceedings that he made contribution toward matrimonial home for which he should receive credit, but this claim was not affected by requirement that he repay his obligations to joint line of credit. Man conceded his obligation to repay funds, and signed promissory notes confirming his intention to repay amounts. Man established no triable issue in defence to his repayment obligations. Accordingly, summary judgment was properly granted. As man’s appeal had been dismissed, his motion for leave to appeal costs was dismissed.
Friendly v. Elkind (May. 20, 2014, Ont. C.A., E.E. Gillese J.A., K. van Rensburg J.A., and C.W. Hourigan J.A., File No. CA C58057) 240 A.C.W.S. (3d) 843.
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