passed in bad faith, was ultra vires, anti-competitive, an improper delegation of
authority to the chief of police and violated
subs. 2(b) of the Charter.
HELD: Application dismissed. The by-
law had been passed after a long debate.
Policy considerations were not subject to
review for reasonableness and there was no
evidence of bad faith. Customers had long
complained that private companies dis-
guised their tickets as official city tickets and
complained of poor treatment by private
parking enforcement agencies. The amend-
ments did not create an outright prohibition
on applicant’s business and applicant failed
to adduce any evidence of the financial
impact. The by-law would only be ultra vires
if it created an operational conflict with
another Act, which it did not. Applicant
complained it prevented property owners
from exercising their rights under the
Trespass Act (Ont.) but applicant had no
standing to argue on behalf of property own-
ers. Furthermore, applicant was mischarac-
terizing the by-law, which regulated parking
enforcement agencies, not property owners.
Applicant adduced no relevant evidence in
support of its anti-competition claim. The
chief of police was obviously familiar with
parking enforcement issues and it was rea-
sonable to delegate approval of parking
notices to him. This was not an improper
delegation and did not give him authority
over choosing which agencies would be
licensed. The city conceded the by-law vio-
lated subs. 2(b) of the Charter by infringing
upon applicant’s right to commercial free-
dom of expression. However, the city estab-
lished a pressing and substantial objective to
amending the by-law and the means adopt-
ed were both proportional and rational.
TORTS
FATAL ACCIDENTS – A bereavement
claim was not a cause of action under the
Fatal Accidents Act (Alta.).
Appeal from the dismissal of appellants’
claim against respondents. Appellants’ son
was killed in a pedestrian and motor vehicle
accident. The Workers’ Compensation
Board found that the driver of the vehicle
and the son were ``workers`` under the
Workers’ Compensation Act (WCA)
(Alta.), and that the driver`s employer and
owner of the vehicle were “employers” under
the WCA. The Board paid funeral expenses,
but no further compensation. Appellants
filed a statement of claim seeking bereave-
ment damages pursuant to para. 8( 2)(b) of
the Fatal Accidents Act (FAA) (Alta.).
Respondents took the position that the FAA
claim was dependent upon an action by the
son’s estate, which was barred by subs. 23( 1)
of the WCA. The trial judge found that s. 2
of the FAA created a cause of action only
where a deceased was entitled to maintain
an action had death not occurred. The judge
also found that the son would not have been
entitled to maintain an action by reason of
subs. 23( 1) of the WCA, which removed a
cause of action for a death occurring in the
course of employment.
the property was purchased as their matrimonial home with a loan from F to help
facilitate the purchase. The trial judge found
that F had advanced $175,741, of which
$145,964 was not intended to be a gift, with
the remainder dedicated to property
improvements. The judge ordered a constructive trust over 80 percent of the farm
on the basis of an unjust enrichment.
HELD: Appeal allowed. Appellant and M
were unjustly enriched. The simple movement of money from one party to another
established the enrichment and corresponding deprivation. There was no juristic reason
for the enrichment, as there was insufficient
evidence to establish a valid and enforceable
contract. Despite indications in the documentary evidence that the advances from F
were in the nature of loans, there was nothing that established an unambiguous debt of
a certain amount or terms of sufficient certainty. The fact that the parties intended to
treat the transfers as loans was insufficient in
the absence of a valid and enforceable contract. However, a constructive trust was not
the appropriate remedy for the unjust
enrichment of the couple, as monetary compensation was sufficient. F had advanced the
monies as a loan. She did not intend to
become a part-owner of the farm or share in
its appreciation. The order was set aside. F
was awarded judgment against appellant
and M in the amount of $145,964.
Harraway v. Harraway, [2009]
B.C.J. No. 2457, B.C.C.A., per Finch
C.J.B.C. (Kirkpatrick and Smith JJ.A.
concurring), Dec. 10/09. Digest No.
2933-020 (Approx. 9 pp.)
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TRESPASS – Defendant was ordered
to fill in a pond that he had built, which
was partly on plaintiff’s lot.
Action for damages for trespass, punitive
damages and an order that defendant fill a
pond on her lot. Counterclaim by defendant
for an order of partition and sale. Plaintiff
had co-owned an undeveloped lot with her
sister. Defendant owned the lot adjacent to
plaintiff’s lot. Without obtaining plaintiff’s
consent, defendant had a large pond built
on both lots. In 2004, defendant purchased
plaintiff’s sister’s interest. Defendant
claimed he was unaware of the lot boundary
and suggested the surveyor had made a mistake. Defendant presented the survey, which
showed just one big lot belonging to defendant. Plaintiff presented a survey that
showed two, clearly demarcated lots.
HELD: Action allowed. Counterclaim
dismissed. Plaintiff’s husband testified that
defendant had approached him in 1987
about buying plaintiff’s lot in order to build
a pond. The parties were unable to agree on
a purchase price. It was clear that defendant
was fully aware of the boundary and had
altered the survey filed with the town.
Defendant had deliberately trespassed on
plaintiff’s land and then managed to purchase the sister’s land in order to claim status
as a co-owner of the lot and seek a partition
order. The court exercised its jurisdiction
not to make an order of partition and sale
because defendant could not be allowed to
benefit from his unlawful actions. Defendant
was ordered to fill the pond at his own
expense. If the town would not allow him to
fill the pond, he was to pay plaintiff damages
of $27,000. Plaintiff was also entitled to
punitive damages of $19,000, as defendant’s
behaviour was outrageous.
Zambri v. Grammelhofer, [2009] O.J.
No. 5043, Ont. S.C.J., Glass J., Nov. 23/09.
Digest No. 2933-019 (Approx. 6 pp.)
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CONSTRUCTIVE TRUSTS – A constructive trust remedy was not an appropriate remedy to compensate a mother-in-law for loans made to her son and his
former wife.
Appeal from a declaration awarding an
80 percent beneficial interest in farm property to respondent F. Respondent F was the
mother of respondent M. Appellant and M
were engaged in matrimonial litigation. F
was added as a defendant. F applied for an
order declaring that the couple held legal
title to a farm in trust for her as beneficiary.
M supported her position. F had contributed substantial sums of money toward the
farm’s purchase. Appellant contended that
REVOCATION – The mother of a
deceased could not enforce a provision in
a separation agreement between the
deceased and his former spouse renouncing any claim in the deceased’s estate.
Appeal from an order directing that a
separation agreement between M, now
deceased, and his former wife, did not revoke
his will. In his will, M left his wife, respondent O, the residue of his estate. During their
marriage they signed a separation agreement which included a provision whereby
they agreed to renounce and waive any claim
in the estate of the other and any right to
share in the estate of the other. When they
divorced, the terms of the separation agreement were incorporated into the corollary
relief judgment. When he died, M had not
changed his will, which left the residue of his
estate to O. Appellant was M’s mother. She
sought specific performance of the renunciation term. The chambers judge held that the
separation agreement did not revoke the will
and accordingly, O was entitled to the testamentary gift. Appellant contended that
before a testator’s death, a person could have
contractually obligated himself or herself to
renounce a testamentary gift.
HELD: Appeal dismissed. Appellant
failed to produce any legal authority that a
contractual promise to renounce, given for
consideration before the death of a former
spouse, bound a person to renounce a testamentary gift after his death. Even if the former spouse were so bound, there was no
privity of contract which would have allowed
appellant, who was not a party to the separation agreement, to enforce the agreement.
Robinson v. Morrell Estate, [2009]
N.S.J. No. 597, N.S.C.A., per Oland J.A.
(Saunders and Fichaud JJ.A. concurring), Dec. 10/09. Digest No. 2933-021
(Approx. 12 pp.)
