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Associations

MEMBERS

Payment form said nothing about membership and seniority being cancelled

Applicant was member of respondent. Applicant renewed membership as full season vendor for 2013 market season. Full season stall fees were due by April 25, 2013 in form of three post-dated cheques. Applicant submitted full season application with cheque for one-third of amount of stall fees on April 5, 2013. Applicant did not retrieve registered letter reminding applicant he was at risk of losing full season status and seniority if he failed to deliver cheques. Respondent rejected applicant’s full season application and terminated his seniority. Applicant’s stalls were reassigned to another member. Applicant sought declaration that respondent breached bylaws, rules and regulation and requested recognition of his seniority, and return of specified stalls. Other stalls were available for applicant’s use provided he supplied cheques. Applicant’s seniority was ordered reinstated. Applicant was to be offered first choice of any vacant stall for 2014 season. Respondent’s removal of his seniority, and reallocation of his stalls was premature given confusion of bylaws, rules and regulation, stall payment form and messages delivered by general manager and director, applicant’s responses to address default, and respondent’s rejection of his full season application. Stall payment form was silent as to repercussions of not delivering three post-dated cheques by April 25, 2013. Stall payment form said nothing about membership and seniority being cancelled. Member was entitled to 30 days’ notice to address default.
Lacroix v. 1723445 Ontario Inc. (Dec. 31, 2013, Ont. S.C.J., Belch J., File No. Ottawa 13-57709) 236 A.C.W.S. (3d) 291.

Agency

EXISTENCE OF RELATIONSHIP

Remedy of non est factum not available to willfully blind

Guarantees were provided by defendants for term loan made to defendant husband’s company, and defendants signed unlimited, continuing guarantee. Demand was made and then action commenced. Motion by plaintiff for summary judgment against defendants on guarantees. Defendant wife raised defences of non est factum and unconscionability. Motion granted. Defendant’s claim she spoke little English after 40 years in Canada and five children and 15 grandchildren raised here was incredible. Defendant owned real estate and, while she was not shareholder, officer or director of debtor, she clearly benefitted from husband’s financial dealings, so guarantee and enforcement not unconscionable. It was incredible defendant did not ask any questions before signing guarantees or that lawyer for debtor provided no explanation or information. Remedy of non est factum not available to wilfully blind, and plaintiff had opportunity to make inquiries. Defendant’s husband was not agent of plaintiff so could not have made misrepresentations to bind plaintiff. While defendant trusted husband, there was no evidence he coerced, bullied or forced her to sign, or that she did not have operating mind. Guarantee valid and enforceable against both defendants and plaintiff entitled to amount owing.
Meridian Credit Union Ltd. v. Vrankovic (Dec. 6, 2013, Ont. S.C.J., C.A. Tucker J., File No. Welland 1039/10) 236 A.C.W.S. (3d) 447.

Courts

STAY OF PROCEEDINGS

Fact that trial may have to be adjourned did not amount to abuse of process

Plaintiff had commenced tort action for damages for injuries suffered in motor vehicle accident. Plaintiff also brought application to Financial Services Commission of Ontario (“FSCO”) seeking income replacement benefits. Plaintiff’s first claim was resolved on basis of partial settlement, but his second claim was denied. Plaintiff then commenced action for income replacement benefits, mental distress and punitive damages. Plaintiff’s insurer objected to benefits action proceeding based on plaintiff having accident benefits claim for medical expenses outstanding at FSCO. Plaintiff was subsequently granted order permitting him to withdraw claim before FSCO. Benefits action and tort action were ordered to be tried together. Insurer sought stay of benefits action on basis it would be abuse of process because it was too late for him to change forums from FSCO to court. Motion dismissed. Fact that trial may have to be adjourned did not amount to abuse of process. Nor was there prejudice to defendants in tort action. That issue had already been determined by master in issuing order that action be tried together. Contrary to submissions of insurer, plaintiff would suffer prejudice if action were stayed. Plaintiff would be required to duplicate evidence in both proceedings and his claims for damages for mental suffering and punitive damages would be limited to what was allowed at arbitration. Allowing benefits action to proceed did not violate principles that doctrine of abuse of process was intended to protect.
Korus v. State Farm Mutual Automobile Insurance Co. (Dec. 18, 2013, Ont. S.C.J., Frank J., File No. CV-13-00478162-0000) 236 A.C.W.S. (3d) 120.

Civil Procedure

COSTS

No individuals involved who should absorb costs of motion other than lawyers

Respondent brought motion to enforce settlement arising from accepted offer to settle. Court determined that there was binding settlement, but it should exercise its discretion to set aside settlement because weighing of potential prejudice favoured applicants. Court found that lawyer who represented applicants made innocent slip by accepting respondent’s offer. Respondent applied for costs on partial indemnity basis to be paid personally by applicants’ lawyers. Application granted. Binding settlement was reached at law and in circumstances it was reasonable for respondent to require compelling evidence as to why agreement should be voided. It was not unreasonable for respondent not to believe word of lawyer when she urged him to accept that innocent mistake had occurred. Costs incurred were caused solely by lawyers. In circumstances of case there were no individuals involved who should absorb costs of motion other than lawyers. Amounts billed were commensurate with time required by complexity of matter. Costs sought to be recovered were reasonable. Lawyers were to pay respondent partial indemnity costs of $17,740.44.
Catford v. Catford (Jan. 7, 2014, Ont. S.C.J., S.E. Healey J., File No. CV-13-0353, CV-13-0351) Additional reasons to 235 A.C.W.S. (3d) 74.  236 A.C.W.S. (3d) 36.

Civil Procedure

CLASS ACTIONS

CRTC did not provide viable procedure for resolution of issues

Service agreement for pre-paid phone card typically provided that phone card would expire if it was not used or topped up within specified time. Unused balance on phone card would be forfeited to service provider after card expired. There was practice of phone card suppliers seizing any unused balance on prepaid phone cards one day sooner than expected. Proposed class action targeted consumer complaints about expiry of cell phone credits and loss of prepaid credits. Plaintiff brought action against phone company for breach of contract, unjust enrichment, and breach of unfair practice provisions of Consumer Protection Act, 2002 (Ont.). Plaintiff brought motion to certify action as class action. Motion granted. Plaintiff’s proposal was revised. Five of seven common issues were certified. Subclass of “consumers” was added because subclass raised common issues that could be determined in class proceeding, but were not shared by other members of class. It could not be said that breach of contract and unjust enrichment claims had no chance of success or that they were plainly and obviously bound to fail. Issues of “unfair practices” and “what remedies” were not certified. Claim based on unfair practice provisions of Act on facts as pleaded had no chance of success because s. 18 of Act did not apply on facts. Impugned notifications did not induce plaintiff to enter agreement and were not unfair practices that triggered s. 18 remedies because no agreement was made after or while defendant engaged in unfair practice. Given that there were over one million class members, class proceeding was preferable procedure. Access to justice and judicial economy justified aggregation of potential claims into class proceeding. Canadian Radio-television and Telecommunications Commission did not provide viable procedure for resolution of issues.
Sankar v. Bell Mobility Inc. (Oct. 4, 2013, Ont. S.C.J., Edward Belobaba J., File No. CV-12-452867-CP) 235 A.C.W.S. (3d) 889.

Agriculture

GENERAL

Respondent granted itself jurisdiction to consider criteria not found in legislation

Respondent denied applicant accreditation as accredited farm organization. Respondent found applicant did not have standing to apply for accreditation. Respondent found applicant did not meet requirement of representing farmers in province. Respondent found applicant was shackled to its national organization. At time of application applicant had 2,247 farm business registration members plus additional 58 direct members. Issue of applicant’s standing was never issue on any of applicant’s prior applications for accreditation. Applicant brought application for judicial review to set aside decision and order directing respondent to accredit applicant as accredited farm organization. Application for judicial review granted. Respondent was directed to accredit applicant. Decisions on accreditation and standing were unreasonable. Respondent exercised discretion that was not conferred on it by Farm Registration and Farm Organization Funding Act, 1993 (Ont.). By elevating purpose of s. 4 of Act, respondent undermined purpose of legislation and purpose of hearing process. In raising issue of standing respondent allowed itself to bypass s. 5 of Act. Tribunal had no discretion and if criteria were satisfied accreditation was to be given. By expanding meaning of “represent” in s. 4(1) of Act, respondent granted itself jurisdiction to consider criteria that were not found in Act. Respondent’s approach was not reasonable given affiliations with national organization were not precluded by Act. Respondent focused on organizational structure rather than on determining whether interests of Ontario farmers were being served.
National Farmers Union - Ontario v. Ontario (Agriculture, Food and Rural Affairs Appeal Tribunal) (Oct. 16, 2013, Ont. S.C.J., Robert N. Beaudoin J., File No. Ottawa 13-1934) 235 A.C.W.S. (3d) 867.

Civil Procedure

LANGUAGE OF PROCEEDINGS

Mother aware of process to request bilingual hearing and did not pursue matter

Mother and father separated in 2010, and entered two agreements which provided for joint custody of two children, born 2004 and 2007, equal residential time and no child support. Unfortunately, relations soon deteriorated. By January 2012, mother had not seen children for over one year and father granted interim custody. In March 2012, parties agreed mother should have supervised access up to two hours per week. In May 2012, mother ordered to pay child support of $1,098 per month on income of $74,484 per year. In July 2012, court ordered custody and access assessment, but assessment did not proceed because mother failed to provide one-half of retainer. In January 2013, trial fixed for November 2013 with bilingual judge, reporter and interpreter to accommodate francophone mother. However, shortly before trial, mother applied for adjournment to arrange for assessment or appointment of lawyer to represent children and unsupervised access in interim. Mother also applied to have all previous orders set aside on ground they had been made in violation of her right to bilingual hearing. Applications dismissed. Under ss. 125 and 126 of Courts of Justice Act (Ont.), party could request bilingual proceeding. Pleadings and documents could be in French as of right in specified areas and with consent in others. However, in Family Court of Superior Court of Justice, originating process could be written in French and documents could be filed in French. No question mother could file any future documents in French. However, that did not mean that previous orders should be set aside. Mother aware of process to request bilingual hearing, at least since December 2011, and did not pursue matter. Apparent that mother relatively proficient in English. Situation that led to father`s application for interim custody had nothing to do with language and warranted change whether hearing conducted bilingually or not. Mother would be able to have court consider all evidence afresh in upcoming bilingual trial.
Sera v. Amboise (Nov. 14, 2013, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket FC-10-035725-00) 235 A.C.W.S. (3d) 746.
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