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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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Bankruptcy and Insolvency

Administration of estates

Creditor’s claims were lienable

Creditor provided materials and services pursuant to lawn maintenance contracts. Creditor filed two construction liens. Creditor filed proof of claim claiming secured claim. Monitor provided notice of revision and disallowance. Monitor allowed creditor’s claim as unsecured pre-filling claim. Creditor delivered dispute notice. Parties disputed whether materials and services provided by creditor could be subject of lien under Construction Lien Act (Ont.). Monitor referred creditor’s dispute to claims officer. Dispute allowed. Creditor’s claims were lienable. Creditor’s claim was allowed as secured pre-filling claim. Black soil and mums added to land were improvements by way of alteration and addition to land and fell within definition of improvement in Act. Addition to land that enhanced land by vegetation control was improvement by way of alteration and addition to land. Removal of vegetation and dirt was alteration and repair to land and supply of gravel and cloth amounted to supply of materials to effect improvement by way of alteration to land. Grounds keeping was improvement by way of alteration and repair of land.
U.S. Steel Canada Inc., Re (May. 24, 2016, Ont. S.C.J. [Commercial List], Julian Polika Claims O., CV-14-10695-00CL) 269 A.C.W.S. (3d) 621.


Constitutional Law

Charter of Rights

There was no evidence that accused was denied right to counsel

Police officer stopped accused as part of stop check program, smelled beverage alcohol, and noted that his eyes were glossy. Accused failed roadside screening test, was arrested, and was informed of his right to counsel and availability of legal aid. He declined to call lawyer but said he needed to go to bathroom. Accused was transported to police station, where he was allowed to go to bathroom and then provided breath samples that showed he was over legal limit. Trial judge held that accused’s rights under s. 10(b) of Canadian Charter of Rights and Freedoms were not infringed and admitted certificate of analysis. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Appeal dismissed. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Trial judge did not err in law in finding that accused’s right to counsel under s. 10(b) was not breached. Officer clearly gave accused his right to counsel, explained what that meant, and offered to provide list of lawyers. Accused did not indicate that he was under impression he had to choose between bathroom or exercising his right to counsel, or that he was so overcome by need to urinate that he could not focus his mind on right to counsel. Accused gave no indication that he did not understand process, and at no time indicated any interest in calling lawyer. Trial judge’s findings that accused clearly declined to take steps to engage his right to counsel were supported by evidence. There was no evidence that accused was denied right to counsel or that he took steps to invoke his Charter rights. While accused had pressing need to urinate, there was no evidence that his attention or ability to understand was in any way compromised. Evidence was reasonably capable of supporting trial judge’s conclusion.
R. v. DaFonte (July 5, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C59811) Decision at 247 A.C.W.S. (3d) 811 was reversed. 269 A.C.W.S. (3d) 55.


Appeal

Procedure

Motion judge’s determination that limitation period had not run was not final order

Plaintiff brought action for payment for equipment it supplied to defendant. Defendant’s motion for summary judgment on basis that equipment was returned to plaintiff was dismissed. Defendant brought motion for leave to appeal and sought permission for late filing of notice of appeal. Motion dismissed. Motion judge’s determination that limitation period had not run was not binding and was not final order. Were court to grant leave to file notice of appeal, it would not have jurisdiction to entertain appeal.
Vanden Bussche Irrigation & Equipment Ltd. v. Kejay Investments Inc. (Aug. 4, 2016, Ont. C.A., K.M. Weiler J.A., In Chambers, CA M46741) 269 A.C.W.S. (3d) 10.


Building Liens

Procedure

Motion for declaration that lien expired was denied

In September 2013, defendant general contractor retained plaintiff subcontractor to supply labour, materials and equipment for interchange improvements on highway construction project. Although plaintiff began work in 2013, signed subcontract for $9,952.665 plus taxes not returned to it until December 2014. Following dispute in regard to work, delays and payment, plaintiff terminated contract in February 2015. On March 20, 2015, plaintiff served claim for lien (dated March 18, 2015) stating it had last supplied services and/or materials to project on February 6, 2015. Parties agreed, however, plaintiff had not physically been on site of project since prior to winter shut-down scheduled for December 19, 2014. Defendant alleged plaintiff had, therefore, failed to preserve its lien within strict 45-day limitation period prescribed by Construction Lien Act (Ont.) and brought motion for declaration lien expired. Plaintiff claimed it had, between December 19, 2014 and February 6, 2015, been performing off-site work in preparation for spring start-up of project scheduled for April 2015 with result lien preserved within time. Motion denied. Scheduled winter shut-down did not put an end to plaintiff’s ongoing obligations under contract. It had been reasonable for plaintiff to continue to perform off-site work in order to be ready for spring start-up without delay. It would not make any practical or commercial sense to require all subcontractors to register liens with 45 days of last on-site work or supply in event of any extended shut-down (whether for weather, labour dispute, scheduling issues or other reason). On evidence, plaintiff’s off-site preparatory work, including communications with regard to and submission of documentation and shop drawings, and provision of shoring system and concrete forms, constituted lienable supply of services or materials within Act with result claim of lien valid.
Toronto Zenith Contracting Ltd. v. Fermar Paving Ltd. (July 19, 2016, Ont. S.C.J., DiTomaso J., CV-15-495) 268 A.C.W.S. (3d) 724.

Conflict of Laws

Jurisdiction

Factors supported Ontario as more convenient forum

Parties married in 2010 and separated in 2014. Parties were parents of young child who lived with mother in Ontario. Father was professional hockey player and, following marriage, parties lived in Chicago during hockey season and returned to Ontario for summer. Father was traded to Toronto in 2013 and parties moved to Ontario. In 2014 father signed contract with Florida and parties purchased home in Florida. Mother claimed she only lived in Florida home for two weeks before returning with child to Ontario in September 2014. Father brought petition in Florida for dissolution of marriage, division of property, shared custody, and determination of support. Mother brought application in Ontario for divorce, equalization of net family property, custody, and support. Mother brought motion for order that Ontario had jurisdiction to deal with custody, access and divorce; father brought cross-motion to dismiss application on basis that mother had not met 12-month residency requirement prior to issuance of her application. Motion granted; cross-motion dismissed. Mother was ordinarily resident in Ontario from July 2013 when father was traded to Toronto. Ontario was where mother had settled routine of her life, and where she regularly, normally or customarily lived. Child was born in Ontario and had lived there all of her life except for two weeks in September 2014. Ontario had jurisdiction to deal with support and property issues. Factors supported Ontario as more convenient forum for adjudication of claims.
Bolland v. Bolland (July 6, 2016, Ont. S.C.J., Hood J., FS-15-00404715-0000) 268 A.C.W.S. (3d) 815.


Contracts

Formation

Promotion and increased salary constituted fresh consideration to make contract valid

Defendant employed plaintiff for two years. Defendant asked if plaintiff would be interested in promotion with salary increase. Plaintiff said yes. Plaintiff later signed employment contract that contained termination clause. Plaintiff was given notice of immediate termination as result of corporate restructuring. Plaintiff was paid for two weeks in lieu of notice. Defendant asserted plaintiff’s employment was terminated with appropriate notice and package in accordance with employment contract. Plaintiff claimed damages for wrongful dismissal. Claim dismissed. Plaintiff was not entitled to any further notice or payment in lieu of notice. Contract and termination clause were enforceable and plaintiff was given notice in accordance with termination clause in employment contract. Verbal conversation was merely inquiry by manager as to whether plaintiff would be interested in new position created by defendant and not acceptance of employment contract. Plaintiff was informed at time of oral conversation that employment contract would be forthcoming with full details. By signing contract plaintiff accepted terms including promotion, salary increase, start date and termination clause. Plaintiff was sufficiently educated and had adequate time to review, consider and understand contract including termination clause. Plaintiff had ample time to ask defendant for any clarification needed and to seek appropriate professional advice. Promotion and increased salary constituted fresh consideration to make contract valid.
Gibbons v. BB Blanc Inc. (May. 24, 2016, Ont. S.C.J., J. Prattas D.J., Toronto SC-14-2070-00) 268 A.C.W.S. (3d) 549.

Conflict of Laws

Jurisdiction
Forum selection clause in escrow agreement was enforced
Real estate transaction contemplated plaintiff purchasing and then leasing back number of properties in Andorra to defendant CA. Agreement of purchase and sale required defendants to enter into escrow agreement and make deposit to be held in escrow. Agreement did not contain either choice of law or forum selection provision. Escrow agreement was executed and deposit was made by defendants. Sale did not close. Plaintiff brought action for damages for breach of contract in amount of deposit in escrow account. Defendants brought motion to stay action on basis that Ontario lacks jurisdiction simpliciter, or on basis that Ontario was not convenient forum. Motion dismissed. Essential nature of claim was entitlement to funds under escrow agreement. Escrow agreement gave Ontario jurisdiction simpliciter, and also contractually named Ontario as convenient forum for disputes. There was no evidence that enforcing forum selection clause in escrow agreement in favour of Ontario would frustrate some clear public policy. Defendants failed to meet burden to show Andorra would clearly be more convenient forum. Action was to proceed in Ontario.
Terracap Investments Inc. v. Credit Capital Immobilliari, S.A. (July 14, 2016, Ont. S.C.J. [Commercial List], Mesbur J., CV-15-11016-00CL) 268 A.C.W.S. (3d) 544.


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