The Lawyers Weekly - May 21, 2010

to prepare a response and properly prepare to test the evidence of respondent’s appraiser. The issue of the value of the house had only come up very recently as a result of applicant’s latest appraisal, the discrepancy in the appraisal value and the alleged explanation given by the appraiser. It could not be said that respondent was guilty of unreasonable delay.

Séguin v. Séguin, [2010] O.J. No.
1543, Ont. S.C.J., Charbonneau J., Apr.
16/10. Digest No. 3003-012 (Approx. 4
pp.)
EVIDENCE (CRIMINAL)
IDENTIFICATION – The trial judge
did not err in his consideration of the
evidence related to the identification of
accused.

Appeal from convictions for breaking
and entering, committing assault causing
bodily harm, and possession of a weapon for
a purpose dangerous to the public peace.
Accused and a co-accused broke into com-
plainant’s apartment at night. Accused car-
ried something like a pipe. The co-accused
lunged at complainant with a knife. Accused
hit complainant over the head with an
object. The entire incident took about five
minutes. The bedroom lights were off dur-
ing the attack but light was coming from the
television and from the open door into the
apartment hallway. Complainant had
known the co-accused for several years but
had met accused only a few times before the
attack. Accused argued that the trial judge
erred in relying on complainant’s identifica-
tion evidence.

HIGHWAYS
applicant municipality following the
annexation of land.

Application for a declaration that applicant municipality did not become responsible for certain roads as a result of a restructuring order. In 1998 applicant was restructured pursuant to the Municipal Act (Ont.). As a result, it acquired control of substantial adjacent lands. Two roads were included. One road connected the municipality with a First Nation with a population of about 1,000. The second road connected a high school and residence for First Nations students to the municipality. The roads were the sole means of road access to those communities. A dispute arose about which level of government had jurisdiction over the two roads, which were in serious disrepair. Both the province and municipality disavowed responsibility for them.

HELD: Application dismissed. The purpose of ss. 262 and 263 of the Municipal Act was to give the municipality control over the highways and bridges within its boundaries. The province of Ontario dedicated the subject roads by virtue of ss. 262 and 263 of the Act. While the subject roads had status as public forest roads under the Public Lands Act (Ont.) before annexation, that continued status was inconsistent with the scheme of legislative dedication under the Municipal Act. The province also dedicated the roads by its course of conduct. Proof of its intention to dedicate was found in the documentary record, including statements by the minister of transportation of intention to dedicate. The documentary record demonstrated a clear and unequivocal intention to accept the subject roads by the municipality. It performed road maintenance over a sustained period and at significant cost. The maintenance was undertaken by the town’s work force without permission from the province. The municipality represented to the public and various government ministries and agencies that it had undertaken responsibility for the roads within its annexed territory. It endeavoured to seek capital funding to upgrade the roads and accepted payment in lieu of taxes for them. The roads were, and have been, municipal highways since Jan. 1, 1998, and the municipality was under a statutory duty to repair and maintain them.

Sioux Lookout (Municipality) v. Can-
ada, [2010] O.J. No. 1495, Ont. S.C.J.,
Pierce J., Apr. 14/10. Digest No. 3003-
014 (Approx. 13 pp.)

gent lessor’s liability insurance policy with appellant insurer. The third party was sued in a personal injury action after she was involved in a motor vehicle accident with the rented vehicle. Respondent denied a duty to defend and indemnify the third party on the basis that C Co. did not have coverage for that particular car because it did not identify the vehicle in its monthly fleet report. Appellant’s application for a declaration that respondent’s policy covered the vehicle was dismissed.

HELD: Appeal allowed. The parties contracted for monthly reports based upon the actual amount of vehicles in the fleet. Based on the wording of the policy and endorsement, respondent’s insurance contract provided coverage for the leased cars in C Co.’s fleet, the number of which C Co. was obliged to include in a monthly report to respondent. The parties decided to assess the risk based on the number of cars in the fleet, rather than the amount of rental income or rental mileage for the relevant month. A description of each vehicle was not necessary in the fleet insurance context for compliance purposes and to enable the insurer to rate the risk or premium based on the value of the particular automobile.

Lombard Canada Ltd. v. Zurich Insurance Co., [2010] O.J. No. 1645, Ont. C.A., per Lang J.A. (Cronk and Juriansz JJ.A. concurring), Apr. 22/10. Digest No. 3003-015 (Approx. 9 pp.)

ACQUISITION – The court found that two roads became the responsibility of

LABOUR RELATIONS

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COVERAGE – A motor vehicle rented by a third party was covered by optional insurance provided by respondent insurer pursuant to a fleet insurance endorsement.

Appeal from a decision concluding that a motor vehicle rented by a third party from C Co. was not covered by the optional insurance provided by the respondent insurer pursuant to a fleet insurance endorsement. The policy provided specific coverage for a specific automobile and defined a described automobile as one specifically shown on the certificate of automobile insurance. The endorsement provided coverage for licenced automobiles leased from any lessor for more than 30 days where the lease agreement required C Co. to provide automobile insurance. C Co. leased the vehicle from T Co. The form of lease obliged C Co. to provide insurance, but T Co. maintained a contin-

GRIEVANCE ARBITRATION – An
arbitrator did not have jurisdiction to
make an award which altered the policy
of a university senate.

Appeal from an arbitrator’s decision in appellant association’s grievance against respondent university. The association alleged the university’s policy on student evaluation of teaching violated the parties’ collective agreement. It sought a moratorium on the application of the policy pending a resolution of its grievance. The arbitrator agreed with the university that its senate policies were not arbitrable, and found he lacked jurisdiction to sit in judgment on it. The university, as employer, had no power to bind its senate to terms of the collective agreement that conflicted with the terms of the senate’s policies. Because the Labour Relations Board was not entitled to interfere with such policies, the arbitrator appointed pursuant to the collective agreement had no basis for doing so.

HELD: Appeal dismissed. The purpose of the policy was to improve teaching at the university. That objective was within the statutory mandate of the university senate. The arbitrator was correct in finding he lacked the jurisdiction to make an award which detracted from or altered the policy. To the extent that the policy might conflict with the collective agreement, the arbitrator had no power to grant relief through the harmonization of the policy with the collective agreement.

Faculty Assn. of the University of British Columbia v. University of British Columbia, [2010] B.C.J. No. 679, B.C.C.A., per Prowse J.A. (Lowry and Nielson JJ.A concurring), Apr. 20/10. Digest No. 3003-016 (Approx. 19 pp.)