tion from respondent. IT Inc. factored or
sold its accounts receivable from respondent
to applicant. IT Inc. failed to pay certain
consultants as required. Respondent
indirectly paid them in exchange for an
assignment of amounts owing to them by IT
Inc. Respondent refused to pay invoices
totaling $141,562 rendered by IT Inc. and
assigned to applicant because those amounts
had been paid indirectly to the consultants.
HELD: Application dismissed.
Respondent was not relieved of its obligation to make payments under the agreement as a result of IT Inc.’s failure to pay
the consultants. Respondent conceded that
it was not in a position to assert legal set-off but asserted that it was entitled to rely
on equitable set off to set-off the amounts
owing by IT Inc. to the consultants and
assigned to respondent by the consultants.
Applicant had registered a financing statement under the Personal Property Security
Act (PPSA) (Ont.) in respect of the assignment from IT Inc. Paragraph 40(1.1)(a) of
the PPSA provided that an account debtor
may set up all defences available, including
equitable set-off, and para. 40(1.1)(b)
restricted that right to amounts owing
before the account debtor received notice
of the assignment. The court was satisfied
that para. 40(1.1)(b) meant the right to
legal set-off only. The lack of a right of contractual set-off in the agreement was irrelevant to a claim for equitable set-off.
Respondent’s cross-claim was sufficiently
connected for equitable set-off to apply.
Commercial Factors of Seattle LP v.
Canadian Imperial Bank of Commerce,
[2010] O.J. No. 2663, Ont. S.C.J., Hoy
J., June 17/10. Digest No. 3012-012
(Approx. 10 pp.)
& DISMISSAL LAW
maintaining plaintiff’s employment status.
Plaintiff was wrongfully dismissed.
Naccarato v. Costco Wholesale Canada
Inc., [2010] O.J. No. 2565, Ont. S.C.J.,
Pollak J., June 15/10. Digest No. 3012-013
(Approx. 7 pp.)
ESTATES
WRONGFUL DISMISSAL – Plaintiff
was entitled to be paid damages equiva-
lent to 10 months’ notice for wrongful
dismissal.
Action for damages for wrongful dismissal. Plaintiff was terminated by defendant in July 2007. He had commenced
employment with defendant, a big box
wholesale grocery/warehouse chain, in September 1990. He was absent due to illness
from July 2002. Plaintiff received short-term
and long-term disability benefits. In 2007
his doctor could not predict when plaintiff
would be able to return to work. Defendant
terminated plaintiff’s benefits from May
2006 because of the frustration of plaintiff’s
employment contract. Plaintiff was paid
$14,569 for notice and severance pay pursuant to the Employment Standards Act (Ont.).
HELD: Action allowed. Plaintiff was
entitled to pay equivalent to 10 months
notice. Although the duration of illness was
significant, the medical evidence did not
support a finding that there was no reasonable likelihood of plaintiff returning to work
in the reasonably foreseeable future. Plaintiff
was still being treated by his doctor. There
was no evidence of any hardship or disruption to defendant’s business as a result of
SUPPORT OF DEPENDENTS –
Applicant failed to demonstrate that pro-
visions made by a deceased for her proper
support were not adequate.
Application pursuant to s. 58(1) of the
Succession Law Reform Act (Ont.) for support from respondent estate. Applicant
sought a lump sum of $500,000 or the
monthly sum of $2,000. Applicant and
deceased were married in 1958. They had
two children. They separated in 1973 and
divorced in 1975. No spousal or child support
order was made at the time nor was monthly
spousal support ever paid by deceased to
applicant. Applicant did receive a property
settlement in the form of title to an income
property. In 2003 applicant learned through
her children that deceased had cancer. She
sent him a card and pointed out that she was
having financial difficulties. Deceased contacted her and over the next five years up to
his death in 2008 he provided her with
$37,000 in cash. He also provided her with
$124,000 to purchase a life lease in a retirement home and purchased an annuity for
her that would provide her with $761 per
month for the rest of her life.
HELD: Application dismissed. The definition of “spouse” in the Act made applicant a dependant of deceased. Deceased
was providing support for applicant even
though he had no obligation in law to do
so. Applicant failed to prove a need to be
granted relief from the estate. She also
failed to provide any credible evidence as
to her assets and means. The result of the
provisions deceased made for applicant
was to provide her with shelter in the
home of her choice for the rest of her life
and an annual income for the rest of her
life. Those provisions were adequate for
applicant’s proper support.
Middel v. Vanden Top Estate, [2010]
O.J. No. 2562, Ont. S.C.J., Taliano J.,
June 16/10. Digest No. 3012-014
(Approx. 11 pp.)
liable for the accident. Appellant’s subsequent action against respondent was dismissed on the basis of res judicata. The judge
found that the parties to the two actions
were the same, that the issues raised were
the same and that the small claims judge
had made a conclusion on liability that
barred a subsequent action by appellant.
HELD: Appeal allowed. The small claims
judge never made a determination of liability upon which the defence of res judicata
could have rested. He never considered the
important factual question of whether or not
respondent had her left turn signal on at the
time of the collision. There was also some
question as to whether appellant was the
proper defendant in small claims court and
as such, whether or not the actions involved
the same two parties.
Innes v. Bui, [2010] B.C.J. No. 1269,
B.C.C.A., per Low J.A. (Newbury and
Levine JJ.A. concurring), June 28/10.
Digest No. 3012-015 (Approx. 8 pp.)
LIMITATION OF ACTIONS
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RES JUDICATA – Appellant’s action
was not barred on the basis of res judi-
cata because of a previous small claims
court decision.
Appeal from an order summarily dismissing, as res judicata, appellant’s claim for
damages for personal injuries resulting from
a motor vehicle accident. Respondent struck
appellant’s vehicle as she was making a left
turn at an intersection. Both parties had the
same insurer. After the accident, respondent’s insurance premiums went up, based on
a finding by the insurer that she was liable
for the accident. Respondent commenced a
small claims action against the insurer, seeking the restoration of her safe driver insurance rate and denying liability for the accident. Appellant was later substituted as
defendant in the small claims action. The
small claims judge dismissed respondent’s
action, stating that he could not decide liability. He found that the parties likely left
their positions stopped at an intersection at
roughly the same time, but that it was
impossible to determine which one was
COMMENCEMENT – Motion judge
erred in failing to consider the issue of the
$15,000 statutory deductible in deter-
mining when appellant ought to have
been aware she had a cause of action.
Appeal from the summary dismissal of
appellant’s action for damages for personal
injuries suffered in a motor vehicle accident
on May 24, 2000. The action was dismissed
as statute-barred. Appellant had continuous
pain after her accident and an MRI in
March 2006 revealed a disc bulge at two
locations. Although appellant’s family doctor
had advised her by May 2004 that she suffered from a chronic pain condition that
could continue for an indeterminate time,
the MRI result provided objective proof of
permanent injury, potentially sufficient to
base a claim that would meet the statutory
threshold and for which an award would
likely exceed the $15,000 statutory deductible. Appellant commenced her action on
Aug. 1, 2007. On a summary judgment
motion by defendant, the motion judge
found that the action was statute-barred as
of May 2006, because appellant knew or
ought to have known by May 2004, when
she was diagnosed with chronic pain, that
she had a claim for permanent serious
impairment of an important physical, mental or psychological function. The motion
judge did not address the issue of the
$15,000 deductible.
HELD: Appeal allowed. It was not the
policy of the law or the intent of the limitations provisions to require people to commence actions before they knew that they
had a substantial chance to succeed in
recovering a judgment for damages. In arriving at his conclusion regarding when appellant ought to have been aware that she had a
claim that potentially met the statutory criteria, the motion judge did not include the
$15,000 deductible as one of those criteria.
That omission constituted an error. The dis-coverability of a claim by appellant was a
genuine issue for trial.
Everding v. Skrijel, [2010] O.J. No.
2534, Ont. C.A., per Feldman J.A.
(Armstrong and Epstein JJ.A. concur-
ring), June 15/10. Digest No. 3012-016
(Approx. 6 pp.)
MORTGAGES
FRAUD – Defendant bank was entitled
to judgment against plaintiff for the defi-
