ciency on a mortgage notwithstanding
that both the plaintiff and the bank were
victims of fraud.
Motion for summary judgment for the
deficiency on a residential mortgage.
Defendant bank sold the property, but
there was a shortfall of approximately
$95,000, which the bank sought to recover
from plaintiff, a co-signor on the mortgage
and a joint owner of the property secured
by the mortgage. The mortgage was
obtained by fraud and both plaintiff and the
bank were victims of the fraudsters. In
exchange for $6,000, plaintiff agreed to co-sign a mortgage for strangers. She testified
that she did not read the mortgage documents, did not ask what they were, and did
not ask for copies. She was told by the
fraudsters that she would only be liable as a
co-signor for six months and that during
that time the real borrower, F, would be
making all the payments. She claimed she
did not know that the deed registered on
title showed her to be a joint owner of the
property. She had never seen the property
prior to closing. She believed that F was the
owner, that he would live at the property,
and that he would pay the mortgage. When
she discovered that mortgage payments
were not being made, plaintiff began paying the mortgage, took over management of
the property, and listed it for sale. The bank
sold the property for $225,000. Plaintiff
sued the bank for damages to compensate
her for the losses she sustained in attempting
to carry the mortgage. The bank sought
summary judgment.
HELD: Motion allowed. There were no
issues for trial. The bank was granted judgment against plaintiff for $94,756 plus interest. As between plaintiff and the bank, plaintiff was in the best position to notice
something was amiss. If she had taken the
trouble to read the documents she signed,
she would have immediately known that the
transaction was not what she understood it
to be. Because of her carelessness, plaintiff
could not avoid liability for what she had
signed. She was in the best position to avoid
the fraud and did nothing to protect herself.
There was no obligation on the bank to
explain the documents to plaintiff or verify
that she knew what she was getting into. The
bank was not required to protect plaintiff
from others who were deceiving her without
any knowledge of the bank. The bank had a
valid claim against plaintiff for the full
amount of the mortgage.
Isaacs v. Royal Bank of Canada,
[2010] O.J. No. 2620, Ont. S.C.J., Molloy
J., June 17/10. Digest No. 3012-017
(Approx. 14 pp.)
that his inability to determine that respond-
ent’s vehicle was stationary was as a result of
his inattention to the road before him.
HELD: Appeal allowed. The dismissal
was set aside and a new trial was ordered.
The trial judge should have asked whether
“but for” respondent’s breach of the standard
of care, would appellant have suffered damage. The judge erred in failing to apply the
“but for” analysis and failing to consider
whether respondent’s conduct created an
unreasonable risk of harm.
Skinner v. Guo, [2010] B.C.J. No. 1258,
B.C.C. A., per Garson J. A. (Ryan and Hink-
son JJ.A. concurring), June 25/10. Digest
No. 3012-018 (Approx. 8 pp.)
the sole beneficiary of the mother’s
$2,000,000 estate. His sisters learned of the
will only after their mother died. They challenged its validity. The trial judge found that
the mother had executed her will as a consequence of undue influence exerted by appellant such that it was void.
HELD: Appeal dismissed. The mother
had become vulnerable and dependent on
appellant for all aspects of her life. He was
clearly in a position to influence her, and it
served his interests to do so. There was no
sound basis on which it could be said that
there was an equally plausible explanation
that would have defeated the case against
appellant. Apart from his rejected asser-
tions, there was no evidence that the mother
wanted to change her will in 2004. Nothing
had been shown to have happened in the fall
of 2003 that would have altered the mother’s
wishes with respect to her estate, which up
until that point had provided for her chil-
dren equally.
PLANNING
& LAND USE
Classifieds
NON-CONFORMING USES –
Respondent was not entitled to rely on a
prior legal non-conforming use to
restore a sunken cottage because the use
was discontinued.
Appeal from a finding that a legal non-conforming use of a cottage entitled respondent to restore a sunken cottage. Respondent
purchased the sunken cottage in 2005. The
cottage began to sink in 1980 and was
inhabited until 1991. The property changed
ownership several times thereafter. In 2004
and 2005 the property was rented to tenants
who docked a houseboat to the roof of the
cottage and who used the cottage roof as a
deck. Respondent started to raise the submerged cottage in 2006. Appellant town
advised respondent that he required a building permit and issued a stop work order.
Respondent’s application for a building permit was denied on the ground that the proposed work did not comply with the town’s
zoning bylaw and, as the cottage had been
abandoned, it was no longer allowed as a
legal non-conforming use. The application
judge found that respondent had a legal
non-conforming use with respect to the
property and buildings.
HELD: Appeal allowed. The application
judge erred in concluding that any legal non-conforming use of the cottage that might
have existed in 1971 had continued to the
present day. From 1994 to 2004, use of the
cottage structure for the purpose for which it
had been built had been wholly discontinued. To dock boats and occasionally to
stay in a tent trailer was of little relevance to
the continued use of the cottage structure.
While the residential use of the cottage had
been lost, respondent continued to enjoy a
right to use the land generally for the docking of boats. Such activities had occurred
since before the passage of the bylaw.
Feather v. Bradford West Gwillimbury
(Town), [2010] O.J. No. 2549, Ont. C.A.,
per Rouleau J.A. (Sharpe and Epstein
JJ.A. concurring), June 16/10. Digest No.
3012-019 (Approx. 9 pp.)
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
SOLICITOR PRACTICE
IN OIL AREA
This is an opportunity for two or
more lawyers to acquire a well
established high volume solicitors’
practice in the heart of the oil & gas
industry & bakken oil discovery in
southeast Saskatchewan. Direct
inquiries to: Lyle Cundall or Robert
Baumgartner at 306-634-2676 or
Email: lyle@cbclaw.ca
(AAA) YOUR OWN WSIB/CPP
LITIGATION AND FAMILY
LAWYER
GRILLO BARRISTERS P.C. IS A
PERSONAL INJURY FIRM.
We have been representing injured
clients for over 25 years. If you are up
to working in a fast paced dynamic
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applications for employment for
two positions. Lawyers with 5-10
years experience in personal
injury litigation with trial experience
and new calls. The potential
candidates will be expected to work
independently on their own files.
Please submit a cover letter and
resume via e mail to laya@grillo.ca
or fax 416-614-6082. All applications
are confidential.
LITIGATION LAWYER
REQUIRED
LITIGATION FUNDING FOR
PLAINTIFFS
SPECTACULAR OPPORTUNITY
AT A LEADING MISSISSAUGA
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RZCD Law Firm is a 22 lawyer full
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LEGAL TELEPHONE
CONSULTANTS
Lawyers in all provinces for part
time positions. Work from home or
office. Flexible hours. Consultants
will provide general legal advice
via telephone. Competencies:
Computer proficiency, strong
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kkotansky@lawassist.ca
MANAGER
for large real estate firm, familiar
with legal proceedings, marketing,
small claims court, and civil
litigations. Can refer business.
Slated for completion Paralegal
shortly. Desiring part time position
with a law firm. 416-818-6130.
NEGLIGENCE
CAUSATION – Trial judge erred in
applying the wrong test for causation in
appellant’s claim for damages arising out
of a motor vehicle accident.
Appeal from the dismissal of appellant’s
action for damages as a result of a motor
vehicle accident at the conclusion of a summary trial. Appellant contended that the
trial judge applied a last clear chance analysis to the issue of causation, contrary to the
Negligence Act (B.C.). The judge resolved the
question of causation against appellant on
the ground that respondent’s negligent conduct when he parked on a highway, without
lawful excuse, at night, without using any
warning lights, was not the proximate cause
of the accident. Instead, he determined that
respondent’s vehicle was seen by appellant
as far as 1,000 metres down the road, and
WILLS
BRAMPTON OFFICE SPACE
Peel Law Chambers is expanding
with 7 new fully furnished and
recently renovated offices available
in the heart of Downtown Brampton.
Office includes a reception area and
boardroom. Some referrals available.
Offices available starting August 1st
2010 with early move in possible.
Contact John at 905-866-6464.
SENIOR PERSONAL INJURIES
AND FAMILY LAW LAWYER
in Southwestern Ontario wants
to relocate and is looking for
opportunity in these areas in GTA
or Golden Horseshoe. Resume
and references on request.
Please respond by e-mail to
lawopp@hotmail.com
UNDUE INFLUENCE – Appellate
court upheld a determination that a will
was void because of undue influence
asserted by appellant.
Appeal from the trial judge’s determination that a will was void. Appellant’s mother
died in June 2006 at the age of 90 survived
by appellant son and two daughters. Her last
will was drawn and executed in January
2004 by appellant, who once practiced law.
Under its terms, appellant effectively became
FURNISHED EXECUTIVE
TORONTO OFFICE FOR RENT
at 120 Carlton St includes reception
area, secretarial station, two
smaller offices, large executive
office, kitchenette, phone system,
use of pool, gym and other building
amenities. Can be rented per office
or entire unit. Available September
1st. Please call Denise at
416-605-3810 for details.
LITIGATION/FAMILY LAWYER
A continually growing North York
firm with a solid client base has an
immediate opening for a litigation/
family lawyer. The successful
candidate must have a sound worth
ethic, the ability and willingness to
work within a team environment,
be a self starter highly dedicated
to obtaining excellence in results
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If interested please respond in
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1E6 or fax to 416-631-6170 or e-mail
to esther@zeppieri.com
POWER PAUSE INC. Housecall
and On Site Massage Therapy
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Operated by: Brendan M. Staples,
RMT. Phone: 905-945-9512 E-mail:
pwrpause@yahoo.com. References
Available.
