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Appeal

DISCOVERY

To order evaluation would have unduly violated son’s autonomy

Testatrix had one son who suffered from various disabilities. Testatrix prepared will under which most of her estate was to become trust property for benefit of son. Estate trustee was to administer trust in his sole discretion during son’s lifetime. Upon son’s death, residue was to be distributed “to any and all worthy individuals and or causes” at trustee’s discretion. Testatrix passed away some five years after making will. Son brought application for declaration that gift over of residue of trust assets failed for uncertainty of objects and for order directing estate trustee to pay entire capital of trust and any interest to son. Trustee brought cross-application for order directing assessment of son’s capacity. Application granted in part; cross-application dismissed. Appointment of assessor to conduct psychiatric examination was substantial intervention into privacy and security of individual. Court lacked jurisdiction to order assessment under Substitute Decisions Act, 1992 (Ont.), given that no proceeding had been commenced under that Act. Further, there was no evidence of reasonable grounds to believe son was incapable. It was not appropriate in these circumstances for court to proceed under s. 105 of Courts of Justice Act (Ont.) (CJA), to order mental examination of son against his will. Concerns that s. 105 of CJA sought to address, such as levelling playing field between opposing litigants, should not be at issue in proceeding of this nature. There were no concerns raised that son was party under disability and therefore in need of litigation guardian. To order evaluation would have unduly violated son’s autonomy.
Stoor v. Stoor Estate (Nov. 3, 2014, Ont. S.C.J., Himel J., File No. 05-64/14) 247 A.C.W.S. (3d) 978.

Appeal

FRESH EVIDENCE

Vendor waived solicitor client privilege attaching to emails

Parties entered into agreement of purchase and sale for condominium unit. Offer was conditional upon purchaser’s lawyer reviewing status certificate concerning monthly maintenance fees and special assessments and finding it satisfactory. Clause also provided that unless purchaser gave notice in writing no later than 6 p.m. on third day following receipt of status certificate that condition was fulfilled, offer was null and void and the deposit was to be returned to her in full without deduction. Purchaser relied upon condition but vendor would not return deposit. Purchaser successfully sued in small claims court and vendor appealed. Purchaser brought motion to introduce fresh evidence on appeal of emails exchanged between vendor and his lawyer. Motion granted. While emails were privileged at trial, vendor had subsequently sued his lawyer and attached emails to his claim. Therefore, vendor waived any solicitor client privilege attaching to those emails. Emails were relevant to issue of deadline for condition and met test for admission of fresh evidence.
Sood v. Tse (Dec. 4, 2014, Ont. S.C.J., Marrocco A.C.J.S.C., File No. 284/13) 247 A.C.W.S. (3d) 745.

Employment

WRONGFUL DISMISSAL

Dismissing plaintiff for arriving late was grossly disproportionate response

Plaintiff was employed by restaurant for 29 years. For first 28 years owners of restaurant were plaintiff’s brother and sister-in-law. Defendant then purchased restaurant. Defendant dismissed plaintiff from employment claiming just cause including allegations of chronic lateness, alcoholism and discourteous nature. Reason plaintiff was given on day of dismissal was that he arrived late for work. Plaintiff was 51 years old. Plaintiff brought action for wrongful dismissal. Trial proceeded in defendant’s absence. Action allowed. Plaintiff was entitled to reasonable notice of 15 months. Plaintiff proved claim for wrongful dismissal. There was no cause for plaintiff’s dismissal. Allegations of chronic lateness or failure to show up for work was contradicted by defendant’s own records. Sworn testimony to contrary of allegation of excessive alcoholism was accepted. Plaintiff debunked claim that he was discourteous to clients. Dismissing plaintiff for arriving late was grossly disproportionate response to such misconduct. Plaintiff was not senior or skilled employee. Plaintiff made reasonable efforts to find alternate employment but was not successful. Given plaintiff’s age, experience and qualifications it might be difficult for him to find alternate employment. There was no assessment for non-pecuniary discriminatory damages because there was no evidence that defendant discriminated against plaintiff on prohibited ground.
Violo v. Delphi Communications Inc. (Dec. 4, 2014, Ont. S.C.J., Chapnik J., File No. CV-12-456306) 247 A.C.W.S. (3d) 586.

Civil Procedure

COSTS

Lack of service on solicitors of offer to settle did not render offer nullity

Principals of plaintiff agreed with principal of defendant that they would jointly purchase factory and convert it into self-storage facility. Plaintiff was incorporated for purpose of acquiring and converting property for joint venture. Principals of plaintiff agreed to put up entire purchase price and plaintiff would become sole owner of property pending completion of project. Parties entered into put/call agreement where plaintiff could force defendants to purchase property through put and defendants could force plaintiff to sell property through call. Agreement provided that if parties could not agree on purchase price then agreed upon appraiser would be retained and in absence of manifest error, appraiser’s determination of fair market value would bind parties. Plaintiff exercised put. Appraiser concluded that fair market value of property was $7.3 million but defendants refused to accept appraisal. Plaintiff brought this action. Defendants attempted to introduce report of different appraiser but trial judge excluded evidence of defendants’ appraiser and made mid-trial ruling that appraiser parties agreed to did not make manifest error in arriving at fair market value. Trial judge awarded plaintiff specific performance of put/call agreement. Plaintiff was awarded costs of $415,000 plus HST, partly on substantial indemnity basis based on offer to settle. Defendants appealed. Appeal dismissed. Trial judge did not err in finding that lack of formal service on defendants’ solicitors of plaintiff’s offer to settle did not render offer nullity. Trial judge was entitled to take offer to settle into account in determining costs. Trial judge was entitled to exercise discretion to increase amount based on defendants’ conduct that unnecessarily prolonged trial. There was no basis for interfering with quantum of costs awarded.
Matthew Brady Self Storage Corp. v. InStorage Limited Partnership (Dec. 3, 2014, Ont. C.A., Doherty J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C57707) Decision at 236 A.C.W.S. (3d) 620 was affirmed.  247 A.C.W.S. (3d) 715.

Administrative Law

JUDICIAL REVIEW

Court did not have inherent jurisdiction to require respondent to produce record

Applicant filed complaint of professional misconduct against engineer and his company with respondent association. Respondent’s complaints committee determined there was no evidence of professional misconduct of significant nature and decided not to refer complaint to discipline committee. Applicant commenced application for judicial review and asked respondent to file record of proceedings or, alternatively, provide to him all documents relating to investigation, proceeding and decision so that he could do so. Respondent denied request, claiming no record needed to be filed. Applicant brought motion for order requiring respondent to disclose above-noted documents including complaint summary, response and other documents referred to in decision, all evidence and submissions provided by anyone other than himself, any internal notes and memoranda, all audio recordings, including voicemail, all communications, including letters and e-mails, witness interview notes and any other relevant documents. He claimed court could not conduct proper judicial review of either investigation or decision without those documents. Respondent submitted that if any record was necessary, it should consist only of complaint form and materials filed by applicant, documents before complaints committee at time decision made, and that were not privileged, and reasons for decision itself. Motion denied. Under s. 24(1) of Professional Engineers Act (Ont.) (PEA), complaints committee required to conduct proper investigation of complaints. Under s. 24(2) of Act, it was permitted, not required, to refer complaint to discipline committee. In absence of mandatory language, decision to not refer did not constitute statutory power of decision. Section 10 of Judicial Review Procedure Act (Ont.) (JRPA), did not, therefore, apply to require decision maker to file record of proceedings. Court did not have inherent jurisdiction to require respondent to produce record in absence of statutory power of decision. Respondent should not be required to provide anything more than material already mentioned.
Harrison v. Assn. of Professional Engineers of Ontario (Nov. 12, 2014, Ont. S.C.J., Robert N. Beaudoin J., File No. 14-1999) 247 A.C.W.S. (3d) 2.

Agency

EXISTENCE OF RELATIONSHIP

Parties intended for defendant to be personally liable for obligation

Plaintiff hired defendant and agreed to help him buy a house where he would be working. Plaintiff advanced funds. Defendant signed agreement to be personally liable to repay majority of funds if he did not stay in plaintiff’s employ for five years. Defendant left plaintiff before five years ended. Defendant gave plaintiff post-dated cheques to repay amount advanced but bank returned one of cheques NSF. Plaintiff sued for balance owed. Defendant asserted he signed loan agreement as witness for his holding company, shielding him from liability to repay money. Plaintiff brought motion for summary judgment. Motion granted. Nature and content of loan agreement and circumstances in which it was signed established that defendant in signing below name of his corporation showed that parties intended for him to be personally liable for obligation agreement entailed. Where person’s signature appeared immediately above or below name of his corporation without another signature on document, and without clear indication that person was signing in representative capacity only, instrument was deemed to be ambiguous and court was to look to other evidence from nature and content of document and circumstances in which it was signed to determine whether parties intended signer to have personal liability for obligations in it. Defendant additionally assumed personal liability by authorizing corporation as his agent to enter into loan agreement on his behalf and to undertake that he would be personally liable to repay balance of funds he received. Defendant represented to plaintiff that corporation had authority to enter loan agreement on his behalf. Plaintiff was induced to advance funds to defendant by his representation that corporation was authorized to enter into loan agreement on his behalf and his acknowledgement that he would be liable to repay balance of funds advanced. Defendant was estopped from denying his personal liability having regard to fact that plaintiff relied on his promise to its detriment and to his benefit by advancing funds to him.
H.S.C. Aggregates Ltd. v. McCallum (Oct. 31, 2014, Ont. S.C.J., Price J., File No. Owen Sound CV-112-SR) 246 A.C.W.S. (3d) 819.

Admiralty

SHIPS

Defendant’s actions in reselling vessel to third party was high-handed act

Plaintiff wished to purchase boat from defendants. Offer to purchase was signed by plaintiff and personal defendant who used his own initials without indicating he was acting on behalf of corporate defendant. Offer was conditional on plaintiff being satisfied with inspection and sea trial. Personal defendant had same rights as regards plaintiff’s trade-in vessel. Plaintiff completed inspection and provided acknowledgement of acceptance of vessel. Personal defendant did not conduct inspection or provide acknowledgement. Personal defendant indicated he did not wish to proceed with sale because he was unable to obtain necessary financing. Personal defendant asserted value of trade-in vessel was far less than amount indicated in offer to purchase. Purchase did not close. Vessel was sold to another purchaser for better price two days prior to personal defendant signing rejection of trade-in vessel. Plaintiff sold his trade-in vessel and found comparable vessel to purchase that cost much more. Plaintiff asserted defendants breached contract by failing to conduct inspection and by failing to close purchase and sale due to financing difficulties although such was not condition of contract. Plaintiff asserted that personal defendant signed contracts and not corporate defendant and personal defendant was liable for damages. Personal defendant was owner of corporate defendant. Plaintiff was entitled to damages of $212,536 and to punitive damages of $25,000. There was binding enforceable contract that was breached by defendants. Parties agreed to their bargain and there was offer, acceptance and consideration. Personal defendant did not satisfy condition of inspecting trade-in vessel and to act in good faith in so doing. Contract was not subject to defendant’s financing needs and such provision could not be now imported or implied into contract. Values of vessels were already agreed upon in written contract and only inspection remained. Defendants failed to act pursuant to contract, failed to satisfy condition and did not act reasonably or in good faith. Plaintiff took reasonable steps to mitigate damages. Defendants’ actions in reselling vessel to third party prior to advising plaintiff that contract in defendants’ mind was terminated was high-handed act.
Proulx v. Canadian Cove Inc. (Nov. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-11-434847) 246 A.C.W.S. (3d) 740.
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