judge entered convictions on the basis that
the vehicle remained a truck. The appellate
court found that the modifications did not
change the character of the vehicle and
that it was still capable of use for the purpose for which it was originally designed.
HELD: Appeal dismissed. The HTA
required a narrow interpretive approach to
avoid undermining its broad purpose. The
plain dictionary meaning of the term “
convert” encompassed a change of an objective
quality that was significant enough to
transform the vehicle into something different for a specific use in farming. Appellant failed to establish that his vehicle fell
within the statutory exception. As found by
the courts below, the modifications under-taken by the defendant did not change the
character of the vehicle and did not point
to the specific use of irrigation.
R. v. Van Berlo, [2010] O.J. No. 1307,
Ont. C.A., per Goudge J.A. (Juriansz
and Watt JJ.A. concurring), Apr. 01/10.
Digest No. 3001-016 (Approx. 6 pp.)
bour, respondent, was obliged to contribute to repairs to a party wall and for
damages for its failure to do so. The parties had adjacent lots which shared a wall
until a fire in 2004 destroyed the building
on respondent’s lot and caused significant
damage to the building on appellant’s lot
and the shared wall. Respondent decided
not to rebuild and instead operated a
parking lot on its property. Appellant
spent $750,000 to repair the fire damage
to the party wall to support its building
and asked respondent to contribute.
Respondent refused. Appellant pointed to
an 1898 agreement pursuant to which the
owner of its lot was permitted to build the
party wall and the owner of respondent’s
lot was permitted to use the wall. The
agreement provided that in the event of
the wall’s destruction, the lot owners
would share the costs of its rebuilding, if
and only if the owner of respondent’s lot
had used the wall. The judge found appellant was a tenant in common of the party
wall, but was in sole possession of it, and
was not entitled to be paid for any repairs
by respondent. She also interpreted the
agreement to discharge respondent from
any obligation to repair the wall if it had
no intention of using it.
HELD: Appeal dismissed. There was no
error in the judge’s conclusions. Only in the
event that respondent chose to rebuild and
to use the party wall would it have been
obliged to contribute proportionally to its
costs. The predecessors to respondent and
respondent itself may have received a
benefit in the past from the use of the party
wall, but they had paid for that benefit
under the agreement. The past benefit did
not support a present obligation to contribute to the rebuilding of the wall.
Oddguys Holdings Ltd. v. S.C. Y. Chow
Enterprises Co., [2010] B.C.J. No. 605,
B.C.C.A., per Saunders J.A. (Finch
C.J.B.C. and Mackenzie J.A. concur-
ring), Apr. 07/10. Digest No. 3001-018
(Approx. 7 pp.)
conditional legal burden on the Crown to
establish that the assessment was valid,
and imposed both on the taxpayer. The
judge stated she did not decide the case on
appellant’s failure to disprove the assumptions, but on appellant’s failure to make its
case. The taxpayer’s only case, however,
was to disprove the assumptions.
Northland Properties Corp. v. British
Columbia, [2010] B.C.J. No. 627,
B.C.C.A., per Huddart J.A. (Smith and
Frankel JJ.A. concurring), Apr. 09/10.
Digest No. 3001-019 (Approx. 10 pp.)
nomic advantage that would have otherwise
accrued to appellants but for the alleged
breach. Nor did respondent derive a benefit
as a result of the First Nation’s breach of the
construction contract. There was no intent
by respondent to induce a breach of appellants’ agreement with the First Nation.
SAR Petroleum Inc. v. Peace Hills
Trust Co., [2010] N.B.J. No. 104,
N.B.C.A., per Robertson J.A. (Turnbull
and Green JJ. A. concurring), Apr. 08/10.
Digest No. 3001-020 (Approx. 26 pp.)
TORTS
WORKERS COMPENSATION
NATURAL RESOURCES
OIL AND GAS – Appellants’ claim
for damages against respondent fell
within the jurisdiction of the Ontario
Energy Board.
Appeal from summary judgment dismissing appellants’ action. The motion
judge concluded that s. 38 of the Ontario
Energy Board Act conferred exclusive
jurisdiction on the Board to decide all
issues pertaining to compensation from
the operation of the gas storage operation
run by respondent, and that the various
claims by appellants fell within that
exclusive jurisdiction. On appeal, appellants contended that, as their claim
attacked the validity of agreements relied
upon by respondent and alleged breach of
contract, negligence, unjust enrichment
and nuisance, it fell outside the ambit of
s. 38 or, at the very least, there was a triable issue as to jurisdiction that should
not have been decided on a motion for
summary judgment.
HELD: Appeal dismissed. In substance,
all of the claims raised by appellants fell
within the language of subs. 38( 2) as claims
for “just and equitable compensation in
respect of the gas or oil rights or the right
to store gas”, or for “just and equitable
compensation for any damage necessarily
resulting from the exercise of the authority
given by the [designation] order”. The position advanced by appellants that the
Board’s jurisdiction could have been
avoided by virtue of the legal characterization of the cause of action asserted would
have defeated the intention of the legislature. As the issue of jurisdiction was an
issue of pure law, the motion judge was
correct in dealing with it by way of summary judgment.
Snopko v. Union Gas Ltd., [2010]
O.J. No. 1335, Ont. C.A., per Sharpe J.A.
(MacFarland and Watt JJ.A. concur-
ring), Apr. 07/10. Digest No. 3001-017
(Approx. 7 pp.)
TAXATION
INTERFERENCE WITH CON TRAC-
TUAL RELATIONS – The trial judge did
not err in summarily dismissing appel-
lants’ claim against respondent lender
for inducing a breach of contract.
Appeal from the summary dismissal of
their action against respondent lender.
Appellants entered into a $4,900,000 contract with a First Nation to construct a gas
bar and convenience store. Respondent
agreed to provide financing to the First
Nation in the amount of $3,000,000. The
terms of the construction contract expressly
provided for no holdbacks. However,
respondent determined that it was obliged
to holdback a portion of each progress payment. The holdback contravened the construction contract but was within the terms
of the lending contract. The project completed at a cost of $5,500,000. Appellants
did not receive full payment and were
unable to pay their subcontractors. They
eventually went into receivership. Appellants sued the First Nation, respondent,
and respondent’s lawyer. A motions judge
summarily dismissed appellants’ action as
against respondent. Respondent acted in
accordance with its contractual rights
according to the terms of its contract with
the First Nation.
HELD: Appeal dismissed. Mere knowledge of appellants’ contract with the First
Nation did not impute intent or liability to
respondent, as the resulting breach was not
a desired end in itself or a means to an end.
Respondent did not act improperly, maliciously or opportunistically with a view to
causing appellants economic harm.
Respondent did not pursue a course of
action designed to secure a benefit or eco-
ARISING OUT OF AND IN THE
COURSE OF EMPLOYMENT – The
Workers’ Compensation Appeals Tribu-
nal did not err in finding that appellant’s
slip and fall did not arise out of or in the
course of her employment.
Appeal from a decision of the Workers’
Compensation Appeals Tribunal (“WCAT”)
dismissing appellant’s appeal from a finding of the Workers’ Compensation Board
that a personal injury by accident in which
appellant was involved did not arise out of
and in the course of her employment.
Appellant was employed as a district nurse
with the Victorian Order of Nurses. While
at home one evening, she went out to her
vehicle to retrieve a work-related form. She
fell and fractured her left ankle. She considered her injury to be related to work and
claimed workers’ compensation benefits.
The Board and the WCAT decided that her
injury was not related to work.
HELD: Appeal dismissed. The WCAT’s
decision was reasonable. The WCAT reasoned that the accident did not arise out of
or in the course of employment because
appellant was not required to be working
at the time the accident occurred and was
not being paid. The accident occurred on
her own property and the slip and fall in
the driveway was not a risk associated with
her employment. Those factors provided a
rational basis for the WCAT’s conclusion
that her injury by accident did not arise out
of and in the course of her employment.
Gillis-Andrea v. Nova Scotia Workers’
Compensation Appeals Tribunal,
[2010] N.S.J. No. 172, N.S.C. A., per Far-
rar J.A. (Saunders and Hamilton JJ.A.
concurring), Apr. 08/10. Digest No.
3001-021 (Approx. 6 pp.)
Classifieds
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
KITCHENER/WATERLOO
prominent boutique law firm seeks
junior Associate for Real Estate
and Wills. Must have minimum of
2 yrs experience. Please email
resume to irene@vhlaw.ca
RES JUDICATA CONSULTANT
Opinions, co-counsel, expert
evidence. Contact the author of
The Doctrine of Res Judicata in
Canada: www.donaldlange.com
REAL PROPERTY
TENANCY IN COMMON – Appel-
lant was a tenant in common, in sole
possession of a party wall, and had sole
obligation for the costs associated with
the wall.
Appeal from an order dismissing appellant’s claim for a declaration that its neigh-
CORPORATE TAX – The chambers
judge erred in dismissing appellant’s
appeal from a tax assessment.
Appeal from the dismissal of appellant’s appeal from a tax assessment under
the Corporation Capital Tax Act (B.C.)
on the ground that the chambers judge
misplaced the legal burden on the taxpayer rather than the Crown. The judge
concluded that appellant failed to establish that the tax return financial statements were prepared in accordance with
generally accepted accounting principles
or that the figures put forward by appellant should have been accepted. The judge
also found that appellant failed to establish that the assessment was otherwise in
error as appellant had not made its case
on a balance of probabilities. The Crown
argued that the judge held that appellant
probably failed to disprove the minister’s
assumptions, but went on to find that the
assessment was correct on the facts.
Because the assessment as a whole was
found to be valid on the facts, it was not
necessary for the judge to decide conclusively whether the taxpayer had discharged its initial legal burden.
HELD: Appeal allowed. A new trial was
ordered. The chambers judge appeared to
have improperly combined the initial legal
burden on the taxpayer to disprove some or
all of the minister’s assumptions and the
NORTH YORK CIT Y CEN TRE
15th Floor office with a great
view and reception/clerk room.
Sublease for $1,414.84 per month
including TMI. Prime location
and reasonable price. Telephone
416-487-8611 or email
mmohajer@mmohajer.com
MARKHAM
STARKMAN BARRISTERS
a Civil Litigation Boutique firm seeks
an associate lawyer with 1 to 3 years
experience. Must have superior
written and oral skills, strong
attention to detail, must be able to
work independently and thrive in a
fast paced work environment. Email
resumes and salary expectations to
tracy@starkmanbarristers.com —
No phone calls please.
CLASSIFIED AD
