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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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Boards of education

Plaintiff granted judgment against school board in accordance with jury’s verdict

Plaintiff student sexually assaulted by another student in school washroom. Student and family members’ commenced action against defendant school board alleging board had failed to properly supervise students. They also alleged board’s post-incident acts or omissions had resulted in adverse effects. During course of jury trial, parties agreed jury should be asked if board had breached standard of care and, if so, how, specifically way or ways in which board had failed to act as careful or prudent parent. Jury found board had breached standard of care after incident and referred to s. 2.6 of Safe Schools Policy and s. 12 of Safe Schools Procedure to explain how. Jury awarded damages to student, mother and grandmother but not brothers or grandfather. Counsel for plaintiffs sought judgment in accordance with verdict pursuant to s. 108(5)(b) of Courts of Justice Act (Ont.) and R. 52.09 of Rules of Civil Procedure (Ont.). Board opposed, claiming jury had misunderstood and failed to comply with court’s instructions. Board submitted there was no evidence of breach of s. 2.6 of Policy and no evidence that breach of s. 12 of Procedure had caused any damage. Judgment for plaintiffs. Standard of review of civil jury verdict exceptionally high. Verdict to be broadly interpreted. From that verdict, it appeared jury had agreed with at least one of plaintiffs’ theories, namely that board had responded inadequately to incident and that inadequate response had caused damage to student, mother and grandmother. Evidence supported those findings. Court not entitled to usurp jury’s role or weigh reasonableness of evidence. Court not in position to disregard verdict.
Prentice v. Thames Valley District School Board (Jan. 30, 2015, Ont. S.C.J., A.D. Grace J., File No. 1467/10) 250 A.C.W.S. (3d) 244.

Civil Procedure


Limitations defence was not advancement of new claim

Plaintiff operated private school. It accepted school-related payments from its students by way of credit cards and debit. Defendant PC was retained by plaintiff to provide merchant services for processing and settling of debit and credit transactions. Plaintiff alleged that some $91,000 in American Express transactions were not properly credited to its bank account, due either to fault of Amex Bank or PC, or both. Plaintiff’s action was commenced on July 8, 2010. Only defendant Bank of Montreal advanced limitations defence. Discoveries were conducted in September 2013, and action was set down for trial in February 2014. At pre-trial in October 2014, Amex Bank and PC indicated their intention to amend their pleadings to include limitations defence. Amex Bank and PC moved for leave to amend their respective statements of defence. Motion granted. Limitations defence was not advancement of new claim. Right to advance defence based on passage of time was not claim to remedy injury, loss or damage. It was defence against such claim. There was absence of evidence of actual prejudice. Discoveries had already covered limitations issue and would not need to be continued.
1309489 Ontario Inc. v. BMO Bank of Montreal (Feb. 17, 2015, Ont. S.C.J., C. Boswell J., File No. CV-10-99670-00) 250 A.C.W.S. (3d) 230.

Judgements and Orders


University satisfied test for setting aside default judgment, writ of execution and garnishment

On April 3, 2012, plaintiff obtained $163,000 default judgment against defendant university. On April 12, 2012, plaintiff obtained writ of execution, and on April 16, 2012, it issued garnishment notice, from which it recovered $163,000. University moved to set aside default judgment, writ and garnishment. Motion granted. Plaintiff’s action alleged that parties had entered into agreement for plaintiff to assist university in recruitment of students and share tuition fees. It claimed university had breached its fiduciary duty by cancelling agreement and establishing satellite campus in Toronto without involvement of plaintiff. In its proposed statement of defence, university claimed it had cancellation rights under arrangement if certain levels of recruitment were not achieved or minimal levels were not reached. University said that it was indebted to plaintiff for only $52,000, and thus, it had been overbilled. Thus, save for $52,000, university had shown defence for claim upon which default judgment was based. There was also genuine issue for trial about whether relationship between parties was fiduciary. University satisfied test for setting aside default judgment, writ of execution and garnishment. Save for $52,000, garnished monies should be returned to university.
Education Invention Centre of Canada v. Algoma University (Feb. 24, 2015, Ont. S.C.J., Perell J., File No. CV-11-433568) 250 A.C.W.S. (3d) 112.


Final or interlocutory order

Decision granting leave to amend statement of claim was interlocutory in nature

Plaintiff sued defendant in negligence, alleging that defendant had actual and constructive knowledge of fraudulent dealings by third party that caused plaintiff to lose about $17 million. Judge struck out portions of statement of claim that alleged negligence as result of constructive knowledge on basis that circumstances of case were not capable of establishing relationship of sufficient proximity to found duty of care. Plaintiff brought motion to amend statement of claim to reintroduce allegations grounded in constructive knowledge. Plaintiff was granted leave to amend statement of claim. Defendant appealed. Plaintiff brought motion to quash appeal on basis that order was interlocutory, not final. Appeal quashed. Defendant misconceived nature of motion judge’s decision. Decision allowed matter to proceed to trial and did not have effect of depriving defendant of substantive defence. It remained open to defendant to advance substantive defence to argument that duty to non-customer could be created based on constructive knowledge and that constructive knowledge could be made out on facts. Decision was interlocutory in nature and appeal lay to Divisional Court.
Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank (Feb. 23, 2015, Ont. C.A., John Laskin J.A., Paul Rouleau J.A., and Grant Huscroft J.A., File No. CA M44316, C59401) 250 A.C.W.S. (3d) 11.



Motion judge erred in ignoring uncontested sworn evidence

Appellants purchased house from defendants and later discovered structural problems. Expert report identified problems including load-bearing ability of roof and recommended further investigation. Appellants brought action against vendors, their realtor, two real estate agents and City. Second expert report identified further problems and raised safety concerns about roof. One of defendants testified that respondents designed house and prepared working drawings. Appellants moved to amend claim to add respondents as defendants for negligent design of house causing it to be danger to safety. Respondents brought motion for summary judgment. Motion judge granted summary judgment dismissing claim on basis it was barred by limitation period. Plaintiffs appealed. Appeal allowed. Summary judgment was set aside. Motion judge erred in ignoring uncontested sworn evidence on central matter in issue without giving any reasons for so doing. Motion judge did not refer to lawyer’s affidavit that indicated second report was first information that house might be dangerous by design.
O’Dowda v. Halpenny (Jan. 19, 2015, Ont. C.A., K.M. Weiler J.A., K. Feldman J.A., and M.L. Benotto J.A., File No. CA C59091) 248 A.C.W.S. (3d) 816.

Civil Procedure


Language of minutes of settlement not vague, contradictory or unclear

Deceased had been in common law relationship with wife for 18 years when he died. Deceased and wife resided in home that was in name of company, whose shares were in deceased’s name. Deceased had two children from prior union, son and daughter. Deceased’s will named wife executrix and trustee of estate. Will provided that residue of estate would be transferred in equal shares to wife, son and daughter. Wife filed application for certificate of appointment of estate trustee, which son objected to. Son raised issue of validity of will. Sister brought motion for directions. Court appointed B estate trustee during litigation. B tried to sell home but wife resisted his efforts, claiming she was owner of property. B sought advice and directions from court. Wife initiated lawsuits. Son brought motion to remove B as estate trustee and to have sister appointed estate trustee. Parties entered into minutes of settlement. Son brought motion for order nullifying settlement agreement. Motion dismissed. Minutes of settlement were binding contract between those who executed agreement. There was no issue of son’s capacity or intention to enter into minutes of settlement. Mediation and resulting settlement addressed all outstanding issues. Language of minutes of settlement was not vague, contradictory or unclear. There was no basis in law to nullify minutes of settlement.
Bryant v. Bryant Estate (Jan. 9, 2015, Ont. S.C.J., Louise L. Gauthier J., File No. 2013-6967) 248 A.C.W.S. (3d) 804.



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.
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