alleging he was assaulted in the late hours
of June 27, 2003 and again two months
later. On the city’s motion, a judge dismissed the claim arising from the later
incident as it was an amendment to plaintiff’s statement of claim made without leave
and because it was not commenced within
the applicable two-year time limit. The
judge found that the claim arising from
plaintiff’s June 2003 arrest was not statute-barred because the limitation period did
not commence until the day after the arrest,
or June 29, 2003.
HELD: Appeal by the city allowed.
Appeal by plaintiff dismissed. The action
was dismissed in its entirety because it was
commenced one day after the two-year limitation period expired. The limitation period applicable to the action expired on the
second anniversary of plaintiff’s arrest, or at
midnight on June 28, 2005. The judge erred
in calculating the limitation period. Plaintiff’s allegation that he had been assaulted a
second time was statute-barred. His initial
reference to that incident was inadequate,
as a date was not even specified. His subsequent addition of the September 2003 date
was not acceptable as a way to avoid the
application of the limitation period.
Fredericton (City) v. Ferris, [2010]
N.B.J. No. 245, N.B.C.A., per Richard
J.A. (Turnbull and Bell JJ.A. concur-
ring), July 22/10. Digest No. 3014-012
(Approx. 11 pp.)
for use of his methods of manufacturing
carbon fibre sail masts. Plaintiff alleged
that he designed this method, in April 1998.
He told defendant about the method and
together they built a prototype with the
intention of entering into a joint venture,
which did not happen. Plaintiff registered
his method as a patent in June 1998. In
2003-2004 three boats were manufactured
by a company operated by defendant using
plaintiff’s methods and design. In 2005
defendant advised plaintiff that he built
three masts for the boats using plaintiff’s
method and had obtained a US patent for
the design.
HELD: Motion granted. The Limitations
Act 2002 (Ont.) applied to the action. Plaintiff had two years from the date his claim was
discovered to start a proceeding. Plaintiff’s
position was that the limitation period commenced on April 17, 2007 when he obtained
information and photographs of the masts.
However, when plaintiff discovered the patent infringement in August 2005 he formed
sufficient knowledge to bring and maintain a
cause of action against defendant. The limitation period began from that period. Plaintiff’s action was brought outside the two-year limitation period.
Beadon v. Countouris, [2010] O.J. No.
3118. Ont. S.C.J., Kruzick J., July 14/10.
Digest No. 3014-014 (Approx. 8 pp.)
BYLAWS – Court quashed two bylaws
approving the expenditure of city funds
to reimburse legal expenses of two mem-
bers of city council.
Application for judicial review of four
resolutions of Toronto city council, confirmed by bylaw, approving the expenditure
of city funds to reimburse legal expenses of
three members of council. One of the
bylaws authorized reimbursement to councillors H and M for their legal expenses
arising out of requests by electors for compliance audits. The second bylaw related to
H’s expenses in defending a defamation
action, and the third related to councillor
B’s expenses in pursuing a defamation
action. Applicant argued that the city had
no jurisdiction to pass the bylaws.
HELD: Application allowed in part.
The bylaw relating to the payment of legal
expenses for the two compliance audits
was quashed. It was not demonstrated
that there was a reasonable connection
between the payments to H and M and
permitted municipal objectives, and the
bylaw was not authorized under s. 83 of
the City of Toronto Act (Ont.). However,
the defamation action was brought to protect B’s reputation, and therefore did not
constitute an expense incurred in her capacity as a city councillor. The city defended
the payment to B on the basis that it was
authorized under s. 222( 2) of the Act.
Council made the decision to reimburse
B’s expenses only after obtaining an opinion from outside counsel that the attack
on her reputation would likely affect her
ability to carry out her duties and undermine public confidence in municipal government. Council’s conclusion that the
expense was incurred in her capacity as a
Classifieds
MORTGAGES
DISCOVERABILITY – Plaintiff’s
claim against defendant city related to
flaws in a tender process was brought
outside the two-year limitation period.
Motion for summary judgment to dismiss plaintiff’s claims on the grounds that
they were statute-barred. Plaintiff and
others responded to a notice of tax sale in
respect to a property. The tenders for acquisition of the property were opened on May
13, 2004. Plaintiff’s tender was the second
highest. Plaintiff’s address was an address
of convenience where he collected mail
periodically. At his request defendant city
mailed a copy of the higher tender and
envelope to him, which he received on July
5, 2004. On Feb. 4, 2005 plaintiff put
defendant on notice of certain demands
and attached a notice of application for
judicial review. Plaintiff issued a statement
of claim on July 6, 2006 alleging fatal flaws
in the tax sale process.
HELD: Motion granted. Plaintiff
knew of his right to attend the tender
opening session and audit documentation processed at that time but chose to
not have a presence. Everything he
needed to know to bring the action was
readily available to him on May 13, 2004.
He was required to act with due diligence
in order to be fully apprised of the
material facts on which to base his claim.
The action was bought outside the two-year limitation period. The subsequent
discovery of additional evidence in support of a claim did not postpone the start
of the limitation clock.
Lindhorst v. Cornwall (City), [2010]
O.J. No. 2870, Ont. S.C.J., Leroy J., July
7/10. Digest No. 3014-013 (Approx. 6 pp.)
REDEMPTION – Plaintiff was not
entitled to redeem a mortgage on a prop-
erty that had been sold.
Motion for an order permitting plaintiff to redeem a mortgage. Plaintiff owned
property on which a golf course had been
constructed. It borrowed $2.7 million
from defendant secured by a mortgage on
the property. The balance was not paid
and defendant took possession of the
property under the mortgage and leased it
to a third party for one year. Under the
lease, the third party had an option to
purchase the property for $2.7 million
exercisable at any time before Dec. 31,
2010. Defendant issued a notice of sale
setting May 20, 2010 as the date for
redemption. Plaintiff was unable to
redeem. In the meantime, the third party
exercised the option to purchase. The sale
was to close on July 27, 2010.
HELD: Motion dismissed. The
redemption period expired at the earlier
of the sale under the mortgage and the
commencement of an action for the
enforcement of the rights of a mortgagee, if any. While the law has generally
required strict compliance with the legal
requirements for the exercise of a power
of sale, small errors with the dates in the
notice of sale did not affect the substance
of the notice and were unlikely to mislead plaintiff. Plaintiff’s right to redeem
was unqualified at any time prior to a
sale under power of sale. A sale occurred
for the purpose of s. 22 of the Mortgages
Act (Ont.) when the mortgagee accepted
the offer from the third party. Where an
offer was conditional, the right to redeem
continued. However, the agreement
between defendant and the third party
was not conditional. Plaintiff failed to
redeem before the property was sold and
it was too late now for it to redeem the
mortgage.
1175945 Ontario Ltd v. Michael Wade
Construction Co., [2010] O.J. No. 3070,
Ont. S.C.J., Lauwers J., July 13/10.
Digest No. 3014-015 (Approx. 14 pp.)
MISSING HEIRS
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SOLICITOR PRACTICE
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This is an opportunity for two or
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Our firm is seeking a 2005 to
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Contested court proceedings are
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RECENTLY QUALIFIED LAWYER
Up to 2 years, with interest
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Résumés with covering
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To place your
CLASSIFIED AD
GENERAL PRACTICE —
THORNBURY/MEAFORD
Requires a lawyer experienced in
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Please Call
Valery Pfister-Watt
PATENTS – Plaintiff’s action against
defendant for patent infringement was
statute-barred.
Motion for summary judgment to dis-
miss plaintiff’s action as statute barred.
Plaintiff commenced his action on April 8,
2008 claiming damages against defendant
905-415-5801 or
1-800-668-6481 ex. 801
valery.pfister-watt@lexisnexis.ca
LAWYER REQUIRED
TarBush Giller & Associates
Professional Corporation, a
general practice law office, in
Listowel, Ontario, is looking
for lawyer with 2 — 5 years
experience, specializing in
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(519)291-2710 or email to
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