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Civil Procedure

TRIAL

Questionable evidence had any probative value

Plaintiff brought negligence action for motor vehicle collision. Jury verdict found defendants were not liable. Jury fixed damages. Plaintiff brought motion for mistrial because defendants failed to make disclosure of relevant documents. Motion was dismissed. Production of memo was collateral and privilege was maintained for it. There was no implied waiver of privilege of memo. Purchaser’s financial documents were not relevant at time they were received from purchaser. Counsel had reasonable factual basis for determination of relevancy. Evidence was weak and comparison could not be drawn out and it therefore was not relevant to plaintiff at time of discovery. There was no satisfactory evidence that evidence would have been presented. There was no evidence plaintiff searched out evidence and was denied it. It was not just to order new trial. It was questionable evidence had any probative value. There was no evidence counsel would use evidence.

Dali v. Panjalingham
(July 12, 2011, Ont. S.C.J., McLean J., File No. 07-CV-40166) 205 A.C.W.S. (3d) 94 (14 pp.).

Appeal

FRESH EVIDENCE

Proposed fresh evidence did not support reasonable inference of perjury

Plaintiff was awarded $4,355 plus interest. Defendants appealed. Defendants sought to introduce fresh evidence. Motion to adduce fresh evidence was dismissed. Submission that proposed fresh evidence established perjury or fraud was rejected. Proposed fresh evidence did not support reasonable inference of perjury or fraud in light of other evidence on motion. Appeal was dismissed. There was no basis on which to interfere with finding that there was oral agreement. Appellant did not show error of law or error of legal principle. Appellant did not show palpable and overriding error in findings of fact or of mixed fact and law.

Boghossian Legal Professional Corp. v. Permacharts Inc. (June 17, 2011, Ont. S.C.J. (Div. Ct.), Aston J., File No. DC-09-547-0000) 205 A.C.W.S. (3d) 11 (5 pp.).

Contempt Of Court

PROOF OF OFFENCE

Mother never purposely frustrated access

Motion by father for finding mother in contempt of access order. Parties had two daughters, aged 15 and 19. Until father was charged with harassment and sexual assault in 2009, his access was frequent and positive. Father was eventually convicted of harassment and received conditional discharge. Father argued mother had thwarted his access ever since. Motion dismissed. This was not a case of parental alienation. Problems with access were due to criminal charges, distance between parties, weather and father’s own temper. Mother never purposely frustrated access. Father was to contact older daughter directly to arrange access. Father was to have access to younger daughter on alternate weekends and half the holidays.

Karounos v. Karounos
(July 5, 2011, Ont. S.C.J., Desotti J., File No. 3207/04) 204 A.C.W.S. (3d) 783 (15 pp.).

Landlord And Tenant

RESIDENTIAL TENANCIES

Rental application did not address issue of deposit in satisfactory manner

This was appeal from divisional court’s decision refusing to return rental deposit to appellant. Appellant submitted application to rent apartment for one-year period and she provided respondent with deposit equal to one month of rent. Respondent accepted application. Six weeks before appellant was to take possession she told respondent that she would not proceed with rental. Respondent would not return deposit. Appellant unsuccessfully applied for return of deposit pursuant to s. 135(1) of Residential Tenancies Act, 2006 (Ont.), based on s. 107(1) of Act. Appeal allowed. Section 107(1) of Act did not authorize tenant to automatic return of rent deposit where landlord had done everything necessary to give possession and tenant had unilaterally repudiated rental agreement. It was not clear here that agreement formed by respondent’s acceptance of appellant’s rental application authorized respondent to use deposit as security against payment of rent. As appellant breached agreement to rent, parties did not enter into tenancy agreement. Rental application did not address issue of deposit in satisfactory manner, as provision was illegal and confusing. In effect respondent treated deposit as forfeiture penalty, which was not permitted under Act. In circumstances respondent could not retain deposit.

Musilla v. Avcan Management Inc. (July 12, 2011, Ont. C.A., O’Connor A.C.J.O., Cronk and Rouleau JJ.A., File No. C53166) Decision at 196 A.C.W.S. (3d) 554 was reversed. 204 A.C.W.S. (3d) 173 (7 pp.).

Contracts

MISREPRESENTATION

No active concealment of material facts

Action by plaintiff for damages for fraudulent misrepresentation, breach of fiduciary duty, insider trading, and oppression. Plaintiff was experienced businessman who hired defendant as executive assistant. Plaintiff and defendant became unequal partners in company that defendant was permitted to operate. Subsidiary of company acquired small brewery with $3.3 million from plaintiff. Defendant successfully operated brewery. Plaintiff eventually wanted to be bought out for $9 million. Creditor agreed to refinancing subject to preparation of valuation report. Valuator prepared report using information and projections provided by defendant. Refinancing resulted in defendant being sole owner of brewery after plaintiff was paid $9.3 million in full satisfaction of his interest in brewery. Brewery ended up performing better than expected. Plaintiff felt cheated when large brewery offered to buy defendant’s brewery. Action dismissed. Brewery’s unexpected success was not product of deceit or fraud. Further, there was no misrepresentation of fact made by defendant to valuator or to plaintiff. There was no active concealment of material facts or any conduct preventing or discouraging discovery of true state of affairs. Defendant had not taken advantage of plaintiff in any way. Forecasts were intrinsically uncertain and inaccurate. Plaintiff had not been induced to act as result of any false statement in valuation report. Plaintiff had named his price prior to valuation and was indifferent to valuation in report. Plaintiff had acknowledged valuation report was prepared for creditor rather than him. Neither creditor nor valuator alleged they had been misled. Plaintiff had independent legal representation. Plaintiff would not have expected to pay refund if brewery had not performed as well as expected. Plaintiff had not suffered any damages since no superior transaction had materialized before he sold his interest.

Fracassi v. Cascioli (May 30, 2011, Ont. S.C.J. (Comm. List), Pepall J., File No. CV-08-7730-00CL) 204 A.C.W.S. (3d) 65 (100 pp.).

Wills And Estates

ESTATE ADMINISTRATION

Bill of costs in excess of $700,000 must be able to stand on its own

This was appeal from motion judge’s decision ordering partial probate. Parties were brother and sister. Mother made will in 1987, which expressly excluded appellant and her children. After will was executed there were four codicils. Mother died in November 2007. Respondent applied for summary judgment in respect of 1987 will and codicils. Motion judge granted partial probate in respect of 1987 will and first two codicils. Motion judge made award for full amount of fees requested by respondent. Appeal allowed in part. Appellant raised significant concerns about bill of costs presented by respondent and they must be addressed even if appellant failed to file own bill of costs. Bill of costs in excess of $700,000 must be able to stand on own without reference to bill of costs from appellant. Costs award was set aside and issue of quantum was referred to motion judge for reassessment.

Smith Estate v. Rotstein
(July 5, 2011, Ont. C.A., Armstrong, Epstein and Karakatsanis JJ.A., File No. C52105) Decision at 187 A.C.W.S. (3d) 900 was affirmed. 203 A.C.W.S. (3d) 898 (23 pp.).

Civil Procedure

WANT OF PROSECUTION

Respondents did not proceed as if they were acting on principle of finality

This was appeal from motion judge’s dismissal of motion to set aside registrar’s administrative dismissal order. Motor vehicle accident occurred on October 5, 2001. Appellant alleged that tractor trailer driven by respondent swerved into her lane on highway. Appellant was involved in second motor vehicle accident in March 2005 and commenced separate action. In August 2007 registrar made administrative dismissal of action. Status notice and order dismissing action were sent to appellant’s former counsel. On application to set aside dismissal order motion judge found delay was not adequately explained, prejudice could be inferred and presumed and respondents were entitled to rely on finality of registrar’s order. Appeal allowed. It was palpable and overriding error to say that appellant did not give any reason for slow progress of matter up to date of status hearing notice. Respondents’ counsel continued to attend discoveries in second accident and did not raise any indication that something was wrong so it was hard to see what prejudice respondents were suffering. Respondents did not proceed as if they were acting on principle of finality, as they continued to participate in litigation. Registrar’s order should have been set aside.

Aguas v. Rivard Estate
(July 5, 2011, Ont. C.A., Rosenberg, Feldman and Juriansz JJ.A., File No. C52438) 203 A.C.W.S. (3d) 741 (25 pp.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.