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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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Courts

STAY OF PROCEEDINGS

Plaintiffs had avenues available within labour relations regime to challenge agreements

Plaintiffs were unionized masonry contractors in industrial, commercial and institutional sector of Ontario’s construction industry. Defendants were construction trade unions. Plaintiffs entered into independent contractor agreements with bricklayers. Plaintiffs alleged that defendants entered collective agreements and memorandum of agreement that prevented plaintiffs from continuing to enter into independent contractor agreements. Plaintiffs commenced action against defendants claiming that memorandum of agreement and collective agreements were unlawful and void, seeking injunctive relief and damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means. Defendants moved for order dismissing or staying action on ground that court had no jurisdiction over subject matter of action. Motion was granted. Motion judge stayed action on ground that essential character of dispute was labour relations over which Labour Relations Board had exclusive jurisdiction. Plaintiffs appealed. Appeal dismissed. Motion judge applied correct test and reached correct result. Essential character of dispute fell within board’s exclusive jurisdiction. Plaintiffs had avenues available within labour relations regime to challenge validity of memorandum of agreement and collective agreements. There was no deprivation of ultimate remedy plaintiffs sought. Motion judge did not err in refusing to grant interlocutory relief.
Limen Group Ltd. v. Blair (Sep. 23, 2014, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M. Tulloch J.A., File No. CA C59045) Decision at 242 A.C.W.S. (3d) 421 was affirmed.  245 A.C.W.S. (3d) 200.

Contracts

FORMATION

Issue of set-off had not been raised during contractor’s attempts to collect payment

Company related to contractor owed property owner money. Contractor rented certain equipment with operator to property owner. Contractor rendered invoice to owner for $34,860 but owner never paid. Owner alleged work was supposed to be performed by related company and was to be credited against amount owing by related company. Contractor brought action against owner for amount owing. Action allowed. Contractor was awarded $34,860 as claimed. Owner’s allegations were not supported by evidence. Evidence of contractor was accepted. Contractor never agreed to provide work to owner on basis that it would be set off against related company’s obligations to owner. Further, contractor never did anything to lead owner to believe contractor did not expect payment of its invoice. Issue of set-off had not been raised during contractor’s attempts to collect payment until contractor’s counsel sent demand letter.
Atlas Corp. v. Walker Aggregates Inc. (Aug. 21, 2014, Ont. S.C.J., DiTomaso J., File No. Barrie CV-12-0357OTSR) 245 A.C.W.S. (3d) 81.

Civil Procedure

SUMMARY JUDGMENT

Actions and steps taken by defendant were prima facie authorized by statute

Plaintiff was ordered by municipality inspectors to remove materials on land owned by him. Plaintiff failed to comply with order and had materials removed at his costs and against his wishes. Plaintiff brought action against municipality alleging that decision and its enforcement was negligent and excessive. Defendant brought motion for summary judgment for dismissal of plaintiff’s action. Motion granted. Actions and steps taken by defendant were prima facie authorized by statute. There was no evidence suggesting that actions were beyond what was authorized by law. Plaintiff failed to present genuine issue for trial, as he adduced no evidence of defendant’s alleged negligence or bad faith.
Meloche v. Alfred and Plantagenet (Township) (Sep. 19, 2014, Ont. S.C.J., Ronald M. Laliberte Jr. J., File No. L’Orignal 534-2012) 245 A.C.W.S. (3d) 67.

Arbitration

STAY OF PROCEEDINGS
Court had concurrent and not exclusive jurisdiction to hear matters
Parties were each residential condominium corporations that were developed by same declarant and which together made up condominium development. Pursuant to shared facilities agreement (SFA) dated 7 May 1991, parties shared certain costs in connection with operation, management, maintenance and repair. Plaintiff’s action alleged various failures on part of defendants to comply with provisions of SFA and asserted that conduct of defendants was or threatened to be oppressive or unfairly prejudicial to plaintiff or to unfairly disregard interests of plaintiff. Defendants moved for stay of action and for order appointing arbitrator. They relied on arbitration clause contained in SFA. Plaintiff opposed stay on basis that action was appropriate vehicle for resolving dispute since claims for oppression remedies under s. 135 of Condominium Act (Ont.), were not arbitrable. Motion granted. Section 135 of Act was permissive in its terms. It said that corporation may make application to Superior Court for oppression remedy. Court had concurrent and not exclusive jurisdiction to hear such matters. It was equally appropriate for parties to resolve their disputes through arbitration. In determining its own jurisdiction, arbitral tribunal would take into account what true nature of dispute between parties was, and whether it actually involved oppression or was simply dispute involving SFA. It was at least arguable that dispute between parties was arbitrable and stay of proceedings should be ordered.
Metropolitan Toronto Condominium Corp. No. 965 v. Metropolitan Toronto Condominium Corp. No. 1031 (Sep. 23, 2014, Ont. S.C.J., Graeme Mew J., File No. Toronto CV-14-00497413) 244 A.C.W.S. (3d) 767.

Criminal Law

TOBACCO OFFENCES

Mandatory for prohibition order to be issued after two convictions

Applicant’s owner was charged with selling cigarettes to minor and pled guilty and paid fine. Applicant received notice of non-compliance that made it clear two convictions in five years could lead to automatic prohibition from selling tobacco products. Weeks later, applicant’s employee was charged with, and pled guilty to, selling cigarettes to minor. As a result, applicant was charged under s. 3(1) of Smoke-Free Ontario Act and sent notice of non-compliance. Applicant pled guilty and paid fine. Appeal periods for three charges were long expired. Minister issued prohibition order to applicant, which prohibited it from selling tobacco products for six months. Motion by applicant for stay of prohibition order pending appeal and application for judicial review. Motion dismissed. There was no serious issue to be tried. Section 16(2) of Act made it mandatory for Minister to issue prohibition order after two convictions; there was no discretion and thus, no decision. Applicant had right to hearing and appeal upon being charged. Section 7 of Canadian Charter of Rights and Freedoms did not apply to corporations and economic rights. Applicant was expected to know Regulations and chose to proceed without legal advice, despite notice of consequences. Sale of tobacco to minors was serious issue and six-month prohibition after two convictions was not arbitrary, overbroad or grossly disproportionate, nor was it cruel and unusual punishment or a secondary sentence.
1251553 Ontario Inc. v. Ontario (Minister of Health and Long-Term Care) (Aug. 19, 2014, Ont. S.C.J., H.S. Arrell J., File No. St. Catharines 55240/14) 244 A.C.W.S. (3d) 270.

Civil Procedure

JOINDER

Affidavit did not support cause of action against employees as proposed defendants

Plaintiff brought motion to add two lawyers and law firm as additional defendants and to add two employees of doctor as defendants. Plaintiff sought to add estate as additional plaintiff and to claim wrongful death of deceased. Plaintiff sought to convert action to class action. Plaintiff sought leave to increase amount of her claim from $1 million to $100 million. Plaintiff sought permanent injunction restraining doctor or his staff or any person at law firm from having contact with plaintiff. Plaintiff sought order against doctor enjoining him from practising medicine. Plaintiff’s request for order that she be heard by teleconferencing or Skype was considered and order was made for all parties to appear in person when motion was heard. Plaintiff did not appear in person. Plaintiff’s written request for adjournment was dismissed. Plaintiff was deemed to have abandoned motion. Parts of motion would have been dismissed in any event for lack of evidence or for reasons that relief requested was contrary to law or Rules of Civil Procedure (Ont.). It was premature to seek leave with respect to testimony of experts for any reason in action. Plaintiff did not attach amended statement of claim to her materials containing precise allegations or showing how any claim could be made against proposed defendants. Affidavit material did not support any cause of action against employees as proposed defendants. There was no evidence that estate trustee consented to add estate as plaintiff. Plaintiff was sole plaintiff and Class Proceeding Act, 1992 (Ont.), did not apply. Plaintiff provided no evidence as basis for increasing amount of damages claimed. Supporting affidavit did not establish serious question to be tried in action that would support claim for injunctive relief. Court had no jurisdiction to make order for injunction prohibiting doctor from practising medicine.
Miller v. Turliuk (Aug. 25, 2014, Ont. S.C.J., Emery J., File No. 2598/13) 244 A.C.W.S. (3d) 46.

Damages

MALICIOUS PROSECUTION

Defendant lied to police to cover up his own negligence

Plaintiff drove to gas station to fill his tire and saw area marked off by cones for fuel truck. Plaintiff drove through what he saw was open lane and defendant fuel truck driver waved plaintiff to a stop, put his legs in contact with plaintiff’s bumper and then reported plaintiff to police for striking him. As a result, plaintiff was charged with mischief and dangerous driving and commenced action against defendant alleging malicious prosecution to which defendant did not respond. Motion by plaintiff for default judgment for legal fees and rent for accommodation for six months because charges prevented him from entering United States where he had bought home. Motion granted. Defendant initiated and was instrumental in criminal proceedings against plaintiff, and plaintiff was acquitted so proceedings were clearly terminated in his favour. Plaintiff established defendant lacked subjective basis for making complaint and evidence described man who was angry and vindictive at what he saw as plaintiff’s disregard for his cones. Defendant lied to police to cover up his own negligent cone placement and plaintiff did nothing more than drive through what he saw as open lane and stop to avoid defendant. Improper purpose and malice established. Plaintiff granted judgment for $23,866.37.
Drainville v. Vilchez (Jul. 4, 2014, Ont. S.C.J., P.H. Howden J., File No. Newmarket CV-12-110766-00) 242 A.C.W.S. (3d) 986.
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