IS THAT LEGAL.CA

These are annotations of selected court cases that bear on all areas of Ontario and Canadian law, including areas that I do not practice [see Areas of Practice]. Where possible I attempt to 'mine' the cases for underused or neglected tactical points, and to cross-apply those points outside of the immediate subject area of the particular case being considered. Cases from more obscure areas of law, of less interest to most people, may receive only cursory treatment.

As a 2013 New Year's resolution I plan to regularly canvass all new Supreme Court of Canada and Ontario Court of Appeal cases, selecting and annotating them where merited. I plan to slowly catch up on earlier cases from those courts, though how far back that will go is yet to be seen. The below chart indicates which cases I have reviewed, and selectively annotated, to date.

Cases Considered

Court	From	To
Ontario Court of Appeal	***	***
Supreme Court of Canada	***	November 2012

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BAILMENT

. Ferguson v. Birchmount Boarding Kennels Ltd., 2006 CanLII 2049 (Ont Div Ct, 2006)
- an interesting case where bailment was considered in the context of dog escaping from a boarding kennel

BIAS

. Ontario (Attorney General) v. Powell, 2009 CanLII 7167 (Ont Div Ct, 2009)
- discussion of judicial bias

CONTRACTS

Business Efficacy

. Toronto Hydro Corporation v. Schmidt, 2009 CanLII 9481 (Ont Div Ct, 2009)
- where terms of Hydro's "Conditions of Service" were not brought to the attention of the defendant before entering into an account agreement, the contractual interpretation principle of 'business efficacy' would have inferred them as terms regardless

Contract of Adhesion

. Celebre v 1082909 Ontario Limited, 2007 CanLII 65609 (Ont Div Ct, 2007)
- a clause in a home inspection agreement purporting to limit liability was not enforced in a 'contract of adhesion' (supplier-issued standard consumer contract) where there was no true negotiation and consideration of the terms before the contract is executed, where the consumer was under time pressure to close a house sale, and where the contract was only presented for consumer signature after part of the inspection work had been completed

Fundamental Breach

. Celebre v 1082909 Ontario Limited, 2007 CanLII 65609 (Ont Div Ct, 2007)
- the court considers and reviews case law on what constitutes 'fundamental breach' of a contract, and relies on a finding a fundamental breach to hold that enforcing a clause limiting the defendant's liability would be unfair in the circumstances of the case

. Solway v. Davis Moving & Storage Inc., 2001 CanLII 28079 (ON SC)
- in this 2001 case the Superior Court discusses at length the modern position on the doctrine of fundamental breach, more particularly that it may be on it's last legs; discussion is in context of a claim for lost household property against a moving company

Interpretation

. Ha et al. v. Arista Homes, 2011 ONSC 4561 (CanLII)
- in this case the court engages in a review of recent case law on the principles of contractual interpretation, particularly in the face of ambiguity within the contract

COSTS

. Kuzev v. Roha Sheet Metal Ltd 2007 CanLII 25656 (Ont Div Ct, 2007)
- costs on appeal of small claims court judgment must be reasonable and fair in light of amount at stake at trial

CRIMINAL -->

DAMAGES

Betterment

. Bookman v. U-Haul Co.(Canada) Ltd., 2007 CanLII 37462 (Ont Div Ct, 2007)
- the principle of betterment was applied against an otherwise successful plaintiff to reduce an award which overcompensated for them for the loss of used chattels by awarding the value of new ones

DEFAMATION

. Martinek v. Dojc, 2011 ONSC 3795 (CanLII) (Ont Div Ct, 2011)
- interesting discussion of defamation basics in context of internet postings

DEPOSIT MONIES

. Brown v. Godfrey, 2006 CanLII 16540 (Ont Div Ct, 2006)
- forfeiture of deposit monies: forfeiture of deposit on breach allowable even where not expressly required

. Allied Canadian Acquisition Corporation v. 1012689 Ontario Limited, [2002] O.J. No. 289 (Ont Sup Ct, 2002)
- forfeiture of deposit monies: paid deposit may be retained on breach unless unconscionable to do so

. Pleasant Developments Inc. v. Iyer, 2006 CanLII 10223 (Ont Div Ct, 2006)
- desposit towards purchase of home may be retained by vendor on breach by purchaser unless expressly agreed otherwise; exception where amount of deposit forfeited is punitive or out of proportion to the losses suffered, in which case law of contractual penalties applies, or where forfeiture is unconscionable

DISMISSAL FOR DELAY

. Bohumil Janicek v. OC Transpo, 2011 ONSC 2601 (CanLII) (Div Ct, 2011)
- the court sets out the principles to be applied when dismissing an action for delay by the plaintiff

ELECTRICITY BILLS

. Toronto Hydro Corporation v. Schmidt, 2009 CanLII 9481 (Ont Div Ct, 2009)
- an argument by an account-holder that he did not have to pay for electrical usage by unauthorized tenants was unsuccessful; terms of Hydro's "Conditions of Service" were binding on the defendant despite not having been brought to his attention as contractual terms on policy grounds given the highly regulated nature of the activity

EVIDENCE

Use of Examination for Discovery in Subsequent Criminal Proceedings

. R v Nedelcu, 2012 SCC 59 (CanLII)
- this case involved the application of the Charter s.13 protection against self-incrimination right:

s.13
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

- the defendant was both sued for and criminally charged with respect to an MVA
- the defendant elected to testify in his criminal trial, and the Crown wanted to use a transcript of his (inconsistent) examination for discovery to impeach his testimony in the criminal trial (at discovery he said he remembered nothing of the events)
- the court held that the Crown could use the discovery transcript to impeach the defendant because it was not being (nor could it be) offered for it's truth-value directly to incriminate him, only to impeach his credibility; further, the evidence given in the discovery was not 'incriminating evidence' (it had no potential to incriminate in the civil action because it was a civil action) - for both reasons Charter s.13 was not engaged:

[para 22] .... The use of Mr. Nedelcu’s discovery evidence to test his credibility, and nothing else, could not convert his discovery evidence into incriminating evidence. The discovery evidence would retain its original characteristics and it would not become evidence from which the triers of fact could infer guilt.
- there is extensive discussion of the earlier related case of R v Henry, 2005 SCC 76 (CanLII) and whether it is still good law, and the relevance to the application of Charter s.13 of whether the defendant was 'compelled' to testify in the earlier proceeding

Expert Evidence

. Reid v. R.L. Johnston Masonry Inc., 2009 CanLII 30452 (ON SCDC)
- an expert witness should not be a party or an advocate for a party, they must be independent

Fresh Evidence on Appeal

. CIBC v. Houlahan, 2011 ONSC 558 (CanLII) (Ont Div Ct, 2011)
- consideration of factors to be considered on request to admit fresh evidence on appeal

Negative Inference due to Failure to Call Witness

. Coffee Time Donuts Incorporated v. Toshi Enterprises Ltd, 2008 CanLII 68167 (Ont Div Ct, 2008)
- while a party's failure to call an otherwise available witness may result in a negative inference against them, such inferences must be logically generated from the issue and the circumstances of the case; a finding a causation (of a fire) against an absent party was not warranted

EXTENDING TIME TO FILE APPEAL

. Petrykowski v. Bell Cartage and 553562 On. Ltd., 2011 ONSC 1101 (CanLII) (Ont Div Ct, 2011)
- extensive review of factors applied under RCP to extend time to file an appeal

. Boone v. Advantage Car and Truck Rentals Ltd., 2008 CanLII 54314 (Ont Div Ct, 2008)
- factors applicable to extending time for commencing appeal applied to extend time to serve appeal

FALSE ARREST AND FALSE IMPRISONMENT (TORTS)

. Collis v. Toronto Police Services Board, 2007 CanLII 36634 (ON SCDC)
- an extensive consideration of the torts of false arrest and false imprisonment in the context of the arrest of a protester on grounds of breach of recognizance; focus is on whether 'reasonable and probable grounds' for the arrest existed

FRESH ARGUMENT ON APPEAL

. Ferguson v. Birchmount Boarding Kennels Ltd., 2006 CanLII 2049 (Ont Div Ct, 2006)
- an appellant was denied the right to argue a new legal theory on appeal; test to allow fresh argument is whether the evidence record below is as complete as it would be had the issue been raised squarely at trial, and where there is otherwise no prejudice to the respondent by the introduction of the new issues

HUMAN RIGHTS

. Moore v British Columbia (Education), 2012 SCC 61 (CanLII)
- this was a BC Human Rights Code case that alleged discrimination on the basis of disability (dyslexia) in the provision of services (education), when remedial school services geared to the applicant's disability were discontinued
- while the case turned largely on the specific wording of the BC Code's s.8 provision that protected a right to "any accommodation, service or facility customarily available to the public", and of the BC School Act which promised adequate education to "all learners", it is possible to read those protections as being implicit in the Ontario and other Canadian Human Rights Codes
- relying largely on fact-findings that the District has made no alternate provisions for such special needs students, that it conducted no study to determine possible replacement programming, and that the cutting of the program as a budget measure was born disproportionality by the special needs program (in contrast to other programs), the court found for the applicant:

[para 52] The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.

- while the court upheld compensatory remedies granted to the applicant to pay for private remedial services and related expenses, it overturned - on the basis of remoteness - 'systemic' remedial orders of the Tribunal requiring increased funding for special education, the establishment of mechanisms to ensure future special needs service delivery and that the Tribunal retained jurisdiction over the matter to ensure compliance

INTELLECTUAL PROPERTY

Patents

. Teva Canada Ltd. v. Pfizer Canada Inc., 2012 SCC 60 (CanLII)
- the court here voided Pfizer's patent, holding that part of the 'bargain' made with the public in exchange for the granting of a patent (which gives the holder the right to prohibit other from making the invention for a limited time) is that the inventor provide full 'disclosure' so that after that period has expired the invention can be replicated by anyone without legal impediment

LABOUR RELATIONS

Federal Public Service

. Canada (Attorney General) v. Kane, 2012 SCC 64 (CanLII)
- a pretty fact-specific appeal of a judicial review of the process used to select an employee for a newly-created federal public service position; discusses applicable standard of review and the role of the Public Service Staffing Tribunal

LACHES

. Cosentino v. Roiatti, 2006 CanLII 42063 (Ont Div Ct, 2006)
- the equitable doctrine of laches considered in the context of a solicitor suing for his fees

LEGISLATION

Retrospective Effect

. R. v. Dineley, 2012 SCC 58 (CanLII)
- in this criminal case, legislation as to what evidence a defendant could adduce in defence (a toxicology report in a DUI case) was amended between the time of the offence and the time of the trial (to bar such reports)
- traditionally the law in these circumstances has been that if a legislative change is procedural then it applies right away, but if it is substantive (ie. about rights) then the new law cannot apply to the case
- the court here however held that the proper test was not whether the legislative change was procedural or substantive in nature, but whether it effected substantive rights, which the court here held that it did
- as well, any legislative change that effected Charter rights would be presumed to effect substantive rights as well

MENTAL DISTRESS

. Brown v. Godfrey, 2006 CanLII 16540 (Ont Div Ct, 2006)
- mental distress damages in contract only where contract for peace of mind

. Ferguson v. Birchmount Boarding Kennels Ltd., 2006 CanLII 2049 (Ont Div Ct, 2006)
- damages for pain and suffering upheld where a pet dog escaped from a boarding kennel and was lost

MORTGAGE BROKERS ACT

. 1079022 Ontario Inc. (Nicolini Construction) v. Market Leadership Inc., 2009 CanLII 25607 (Ont Div Ct, 2009)
- fee forfeited where party not properly registered under Mortgage Brokers Act

NEGLIGENCE

. R. v. Henderson, 2008 CanLII 17305 (Ont Div Ct, 2008)
- consideration of negligence in context of government flood control release causing damage to a dock

NEGLIGENT INVESTIGATION

. Collis v. Toronto Police Services Board, 2007 CanLII 36634 (ON SCDC)
- a brief consideration of the tort of 'negligent investigation' in the context of the arrest of a protester on grounds of breach of recognizance

NUISANCE, PRIVATE

. R. v. Henderson, 2008 CanLII 17305 (Ont Div Ct, 2008)
- consideration of private nuisance in context of government flood control release causing damage to a dock; defence of statutory authority dismissed

PAROL EVIDENCE RULES

. Ha et al. v. Arista Homes, 2011 ONSC 4561 (CanLII)
- discussion of modern (and quite lax) form of parol evidence rules (that verbal evidence is not admissible to vary the terms of a written contract) in context of verbal misrepresentation of meaning of written term

PARTIES
.Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501 (CanLII) (Ont CA, 2010)
- this case engages in an extended discussion of when non-corporate statutory bodies (here a commission established under the Buildng Code Act) are categorically exempt from being sued

PENSIONS

Public Sector

. Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71 (CanLII)
- the issue here was whether the federal Crown, having charge of accounts containing employee and employer contributions accumulated in furtherance of statutory pension requirements (for public servants, the RCMP and the Canadian Forces), thereby owed a fiduciary duty with respect to such funds to the present and future pension recipients; the context was that the federal Crown transferred, under a statutory requirement to do so, of such funds ($28 billion) into it's general revenue fund when the total amounts were deemed actuarially surplus to meet projected entitlements
- the various employee groups challenged this transfer, largely on 'expropriation without compensation' and breach of fiduciary duty arguments; the court however relied heavily on the statutory basis of the transaction to reject these arguments; the court held that the only legal or equitable interest of the employees was in their defined pension entitlements (to which extent the Crown, as manager of such funds, was indeed a fiduciary), not to any surplus in the accounts pooled to fund such entitlements
- the court even reasoned (IMHO quite dubiously) that the holding of the funds in accounts separate from the Consolidated Revenue Fund was merely an accounting convenience, and that as such the funds could not thereby be taken ('deprived') from the employees, never have been held to the employees' account at any time

POLYGRAPH EVIDENCE

. Petti v. George Coppel Jewellers Ltd., 2008 CanLII 10051 (Ont Div Ct, 2008)
- polygraph evidence in civil case is not allowed to weigh towards truth as it amounts to a delegation by the judge of their credibility-assessing function

PROMISSORY ESTOPPEL

. Cosentino v. Roiatti, 2006 CanLII 42063 (Ont Div Ct, 2006)
- promissory estoppel considered where the defendant client claimed that the plaintiff solicitor would only take his fees from recovery

QUANTUM MERUIT

. Multi-Tech Contracting 2000 Inc. v. Weston Property Management, 2009 CanLII 31602 (Ont Div Ct, 2009)
- simple application of quantum meruit to award value of work done to premises

REAL ESTATE PRACTICE

. Esbin Realty Corporation and Dauson Properties Ltd. v. Noik Group of Companies, 2006 CanLII 20089 (Ont Div Ct, 2006)
- realtor sues landlord for loss of commission brought about by landlord's failure to refer interested tenant to realtor in breach of listing agreeent

REAL PROPERTY

. Ardavicius v. Kairys, 2009 CanLII 29485 (Ont Div Ct, 2009)
- adjoining landowners owe each other a duty of 'lateral support' with respect to each other's land, which is sometimes characterized as an easement; the result is that any actions by one which negatively effect the lateral support of the land of the other give rise to liability, whether it be characterized as nuisance, trespass or negligence

. Meyknecht Lischer Contractors Ltd. v. Stanford, 2006 CanLII 36952 (Ont Div Ct, 2006)
- a fence company installing a fence at the instruction of the property owner has no responsibility to ensure that it comply with local by-laws

REASONS, DUTY TO PROVIDE

. Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65 (CanLII)
- an Alberta labour relations board finding, that an employer was bound by a collective agreement, was upheld on judicial review on a reasonableness standard against an argument that the board did not provide adequate reasons in it's decision; the basis for this was that the board was an expert tribunal and that:

[para 3] The Board did not have to explicitly address all possible shades of meaning of these [SS: statutory] provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons.

RIPARIAN RIGHTS

. R. v. Henderson, 2008 CanLII 17305 (Ont Div Ct, 2008)
- consideration of riparian rights in context of government flood control release causing damage to a dock

RYLANDS V FLETCHER

. R. v. Henderson, 2008 CanLII 17305 (Ont Div Ct, 2008)
- consideration of Rylands v Fletcher in context of government flood control release causing damage to a dock

SALE OF GOODS ACT
. Prevost v. Gilmour, 2009 CanLII 19937 (Ont Div Ct, 2009)
- discussion of Sale of Goods Act application to sale of collector coins

SOLICITOR'S BILL

. Cosentino v. S. Cosentino Leasing, 2010 ONSC 2611 (Ont Div Ct, 2010)
- discussion of when limitation period commences running for solicitor when suing client on bill; possible variation under old and new (2002) Limitation Acts

STOCKS

. Questrade Inc. v. Gu, 2011 ONSC 4106 (CanLII) (Ont Div Ct, 2011)
- this case is interesting not so much for any legal principles that it applies but for the insight it gives into the world of 'margin trading' in the stock market

STUDENT LOANS

. CIBC v Houlahan, 2011 ONSC 558 (CanLII) (Ont Div Ct, 2011)
- informative and extensive consideration of legislative history of student loans in context of whether certain loans were 'student loans' such as to be exempt from the general two-year limitation period of Limitations Act, 2002

TRAVEL

. Ace Aviation Holding Inc. v. Holden, 2008 CanLII 40223 (Ont Div Ct, 2008)
- lost airline luggage lawsuit; whether second passenger who had property in lost luggage can also sue and thus double the liability cap

. Princess Cruises v. Nicolazzo, 2009 CanLII 28217 (Ont Div Ct, 2009)
- lost property on ocean cruise lawsuit (venue issues)

. Miskewycz v. Gaal, 2009 CanLII 2489 (Ont Div Ct, 2009)
- travel agent found liable on breach of duty under TI/A to inform client of travel documentation requirements to destination country

UNJUST ENRICHMENT

. Grover v. Hodgins, 2011 ONCA 72 (CanLII)
- In this case the court reviews the doctrine of unjust enrichment (which requires the three elements of: enrichment, deprivation and 'no juridical reason for the enrichment and deprivation') by drawing a distinction between enrichment by the provision of money versus that by the provision of services. 'Enrichment' by the provision of services is limited to situations where the services were either requested, or where the recipient was" incontrovertibly benefited" by them (ie. there was a "clear and manifest" benefit). As well, the court seems to resolve the third element for unjust enrichment, that of 'no juridical reason for the enrichment and deprivation', into the question of whether the alleged recipients "requested or otherwise indicated that they wanted the service" - an odd interpretation which, in light of the court's take on 'enrichment', may render the third element redundant, at least in the case of enrichment by services.

VICARIOUS LIABILITY

. Coffee Time Donuts Incorporated v. Toshi Enterprises Ltd, 2008 CanLII 68167 (Ont Div Ct, 2008)
- the court, in the context of a franchisor-franchisee relationship, discusses the principle that a party will generally be held to be vicariously liable for the actions of their employee, but not for those of of independent contractors whom they hire; the key factor is the degree of control exercised by the party against whom vicarious liability is alleged