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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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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.

Civil Procedure

SETTLEMENT

Plaintiff had change of heart, which was not basis to set aside settlement

Plaintiff was injured in motor vehicle accident and commenced action for insurance benefits and damages. Parties attended mediation and plaintiff entered settlement with two insurers, but subsequently resiled from settlement. Motion by insurer S. for summary judgment enforcing settlement for $110,000 payment in exchange for full and final release. Motion by insurer T., to whom plaintiff agreed in settlement to assign action against uninsured driver and owner, for default judgment against uninsured driver and owner for $288,996.19 in accordance with settlement. Motions granted. It was common ground long-term disability and tort claims were settled and minutes of settlement and releases were executed by all parties. Parties were independently represented by counsel and there was no evidence of duress, lack of capacity or unconscionability. Plaintiff chose not to file her own affidavit and simply put forth her position settlement was not in her best interests through her counsel’s affidavit, but counsel did not assert he believed these facts to be true, which reduced weight. Plaintiff simply had change of heart, which was not basis to set aside settlement.
Morant v. Sun Life Assurance Co. of Canada (May. 23, 2014, Ont. S.C.J., Daley J., File No. CV-12-1009-00, CV-12-0208-00) 240 A.C.W.S. (3d) 594.

Civil Procedure

PLEADINGS

Failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction

On Dec. 26, 2005, two groups of men started shooting at each other on sidewalk in Toronto. Three of combatants were shot, two innocent bystanders were injured and one innocent 15-year-old was killed. There was police investigation and criminal charges were laid against nine accused, two of whom were youths. Plaintiff was young person and he elected to be tried by judge alone. However, attorney general decided to have plaintiff’s election overridden. Notwithstanding attorney general’s direction, judge refused to change mode of trial to jury trial. Judge found that attorney general’s conduct was abuse of process. Judge admitted video surveillance evidence. Plaintiff was acquitted of charge of manslaughter. Plaintiff sued Attorney General for malicious prosecution. Attorney general brought motion to strike out amended statement of claim or dismiss action. Motion granted. As matter of private law, malicious prosecution regulated prosecutorial discretion, but as matter of public law, prosecutorial discretion was also regulated by criminal law doctrine of abuse of process. Attorney general’s decision to override plaintiff’s choice of judge alone was exercise of non-core element of prosecutorial discretion that was outside ambit of private law tort of malicious prosecution. Plaintiff argued that case against him was based on part on video surveillance evidence that judges had refused to admit in parallel cases. However, it was not unreasonable for attorney general to continue trial where video surveillance evidence was admitted. It did not logically follow from inability to use surveillance evidence in jury trials that attorney general had no reasonable prospect of conviction at trial where surveillance evidence was admitted, but was ultimately ruled unpersuasive. Attorney general did not continue prosecution knowing he had no reasonable prospect of conviction. Judge’s conclusion that evidence ultimately did not persuade her that plaintiff was involved in wrongdoing did not necessitate inference that attorney general had purpose other than carrying law into effect and that it was unreasonable for attorney general to continue prosecution. Attorney general’s failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction and did not show purpose outside of prosecution of case. Plaintiff failed to plead tenable action for malicious prosecution.
C. (G.) v. Ontario (Attorney General) (Jan. 20, 2014, Ont. S.C.J., Perell J., File No. 12-CV-449178) 240 A.C.W.S. (3d) 775.

Criminal Law

CIVIL FORFEITURE

Despite errors, still manifestly harsh and inequitable to order forfeiture

Civil Remedies Act, 2001 (Ont.), establishes civil forfeiture scheme providing for forfeiture of property used to engage in unlawful activity (s. 8(1)). Forfeiture subject to “Responsible Owner Exception”, where party seeking to avoid forfeiture establishes he is “responsible owner”, and “Interest of Justice Exception”, which grants courts discretion to relieve against forfeiture if order clearly not in interest of justice. Attorney General of Ontario applied for s. 8(1) forfeiture of single-family, private residence used to engage in unlawful activity. Owner rented residence to son who had long-standing and serious addiction to drugs and lengthy criminal record. While son lived in residence, he was convicted of various drug and trafficking offences. Application judge dismissed application, finding that Responsible Owner Exception did not apply, but that Interest of Justice Exception did apply because Attorney General inexplicably delayed, thereby prejudicing owner and rendering forfeiture order unfair. Attorney General’s appeal dismissed. Evidentiary record did not support finding of delay attributable to Attorney General. Forfeiture proceeding commenced within five months of initial police referral and three months of submission to Attorney General. Application judge erred by failing to assess undue delay claim in context of full record and by failing to give effect to s. 8(5) Act which provides there is no limitation period for s. 8(1) forfeiture proceeding. Application judge improperly substituted own discretion. Despite errors, still manifestly harsh and inequitable and clearly not in interests of justice to order forfeiture. Connection between property and son’s illegal activities neither consistent nor overwhelming; forfeiture order would not promote deterrence and crime prevention goals. Application judge failed to consider evidence as whole regarding reasonableness of owner’s conduct in relation to property and son’s activities when addressing Interest of Justice Exception. Owner entirely innocent of any involvement in and derived no benefit from unlawful activities and attempted to assist son in overcoming drug addiction. Owner made diligent efforts to monitor activities at property. Court justified in exercising discretion to refuse forfeiture.
Ontario (Attorney General) v. 20 Strike Avenue (May. 16, 2014, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C57014) Decision at 228 A.C.W.S. (3d) 420 was affirmed.  240 A.C.W.S. (3d) 378.

Civil Procedure

DISCOVERY

Names of students not privileged when they originated in other documents

Plaintiff was teacher at defendant school. It was alleged that plaintiff assaulted one of students who was son of another teacher and her husband. Parents complained to school and reported incident to police. Police contacted Children’s Aid Society. Police and society conducted separate investigations. School held meeting of parents and others in community. It was alleged that husband defamed plaintiff at meeting. Plaintiff was not present at meeting. Society and police found that allegations were unfounded. Plaintiff’s employed was ended. Plaintiff sued school and parents. Plaintiff brought motion for order that representative of defendant answer certain questions put to him on examination for discovery. School claimed it was prevented from answering outstanding questions and making related production by virtue of privilege established by s. 266(2) of Education Act (Ont.). Motion was dismissed. Plaintiff appealed. Appeal allowed. Information as to who was invited and attended meeting reflected on whether there was defamation or libel and if so, how damaging it might have been to plaintiff. Name of parent who had some information as to society’s investigation indicated possibility that there was someone who could contribute some understanding as to how investigation was undertaken and substance behind its conclusions. Nothing in material suggested that any of this would or could improve instruction or education of any student. None of information belonged in Ontario Student Record (OSR) and was not subject of privilege. Question as to who attended meeting was about parents, not students. To disallow information from other sources to be released because it also happened to be in OSR, particularly information that reflected nothing more than identity of student, would extend privilege in manner that was contrary to public interest. Names of students were in OSR to assist individuals referred to in s. 266(2) of Act for improvement of instruction and other education of pupil. Names of students were not privileged when they originated in other documents where they were used for other purposes.
Robinson v. Northmount School for Boys (May. 2, 2014, Ont. S.C.J., Lederer J., File No. CV-09-378776) Decision at 226 A.C.W.S. (3d) 76 was reversed.  240 A.C.W.S. (3d) 328.

Conflict of Laws

SERVICE EX JURIS

Mother permitted to proceed with undefended trial as father properly served

Parties were married on March 7, 1987, and separated on May 13, 1995. Parties had two children born on Jan. 15, 1990, and Feb. 16, 1993. Court issued final order on Dec. 18, 2008, which terminated child support for oldest child, adjusted child support payable for youngest child, and addressed outstanding arrears. Mother now brought motion to change final order. Father lived in state of Georgia. Motion to change was served on father in Georgia. Father failed to respond within 30 days required under Family Law Rules (Ont.). Motion proceeded on undefended basis. Motion granted. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to case. Convention must be complied with for service of family law proceedings within contracting states. Process server employed by mother was authorized, within State of Georgia, to serve court documents anywhere in Georgia. Father was served in manner that was authorized by Convention, and service in that way was permissible in Ontario. Service was acceptable. Since father was properly served with motion to change and appropriate documents, and had not responded, mother was permitted to proceed with undefended trial. Based on her affidavit material, court was persuaded mother was entitled to order sought.
Pitman v. Mol (Apr. 24, 2014, Ont. S.C.J., Gray J., File No. 4060/08) 240 A.C.W.S. (3d) 63.
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