in her vehicle and smoking a cigarette when
she became engulfed in fire and was thrown
from her vehicle, sustaining serious burns
and other injuries. She received compensatory benefits from the Commission under the
Personal Injury Protection Plan until the
Commission advised her she was not entitled
to benefits because of information indicating
she had sustained her injuries in a suicide
attempt. The Commission advised C that she
could appeal the decision to court. Instead, C
pursued an internal review of the decision.
The Commission took the position that it
was the wrong procedure. It held its decision
in abeyance pending the resolution of the
present application.
HELD: Application allowed. C did not
have a choice as to whether to appeal the
Commission’s decision to court or to seek an
internal review. There was an internal review
of Commission decisions setting the amount
of compensation payable, but where the decision, as here, related to eligibility, the only
appeal available was to the court.
Constantin v. Manitoba Public Insur-
ance Corp., [2010] M.J. No. 254, Man.
C.A., per MacInnes J.A. (Steel J.A. and
Beard J. (ad hoc) concurring), Aug. 20/10.
Digest No. 3018-017 (Approx. 11 pp.)
statement of claim to add two third parties as
defendants. Plaintiff sued the occupier of a
condominium for a slip and fall accident in
2005. He pleaded that he injured himself by
slipping on frozen debris left on the premises. Defendant added a newspaper and its
carrier, JH as third parties. Plaintiff now
proposed to add them as defendants. The
statement of claim was filed on Dec. 5, 2007.
Defendant filed the statement of defence and
third party claim in February 2009, naming
the proposed defendant JH as “Jane Doe”. In
November 2009 counsel for the newspaper
identified Jane Doe as JH, an independent
contractor and defendant amended its third
party claim to name her properly. Plaintiff
filed its motion on Feb. 1, 2010.
HELD: Motion granted. The Limita-
tion Act, 2002 (Ont.) provided for a two
year limitation period from the day a claim
was discovered to commence an action.
Section 5 provides that a claim was discov-
ered on the earlier of the day on which the
person first knew that the loss had occurred,
that it was caused by an act or omission,
that defendant was the person who caused
the loss and that it would be appropriate to
institute proceedings to seek a remedy, or
the day on which a reasonable person first
ought to have known these things. Plaintiff
knew he had slipped on frozen debris. He
did not lack diligence in filing his claim on
that basis. The occupier was in a better pos-
ition to know what was lying under the ice
and who had put it there. It could not be
said that plaintiff ought, with reasonable
diligence, to have known about the news-
papers or the paper carrier before the third
party notice was filed in February 2009.
NEGLIGENCE
DUTY OF CARE – There was no duty
in law for a child to supervise an elderly
parent who was living independently.
Motion by the family of plaintiff AM, who
was injured in a 2003 motor vehicle accident, to strike a counterclaim by defendant,
the driver of the vehicle involved. AM was a
pedestrian crossing the street at or near a
light when she was struck violently by
defendant’s vehicle. She sustained serious
injuries and had no recollection of the accident. At issue was whether AM was walking
appropriately within a crosswalk at the time
of the impact. Defendant alleged that AM,
who was 84 years old, was mentally incompetent at the time of the accident, such that her
judgment and appreciation of danger was
impaired. Defendant counterclaimed against
AM’s children, claiming they failed to properly supervise AM’s conduct, causing or contributing to the accident. Neither of the children lived with her at the time of the accident.
HELD: Motion allowed. Defendant’s
counterclaim was struck. There was no duty
in law for a child to supervise an elderly parent who was living independently. AM was
not in a special relationship of vulnerability
with her children in a corresponding position
of power. She was autonomous. Her children
had no duty to take proactive steps to force
AM to undergo a geriatric assessment.
Morrison v. Hooper, [2010] O.J. No.
3421, Ont. S.C.J., Wilson J., Aug. 12/10.
Digest No. 3018-019 (Approx. 9 pp.)
property and the amount, if any, of arrears
owed by plaintiff. Without the vehicles,
plaintiff could not carry on business. Balancing the competing interests, taking into
account the existence of the serious questions
to be tried and the irreparable nature of the
harm to plaintiff should an injunction not
issue, the court concluded that defendants be
restrained from selling or dealing with the
vehicles. They were to release three tractors
and three of the trailers to plaintiff. The
remaining five trailers were to be released
upon proof that plaintiff had paid $8,000
into court to the credit of the action.
JPM Express Inc, v. 2092889 Ontario
Inc. (c.o.b. Joyce Express Inc.), [2010]
O.J. No. 3427, Ont. S.C.J., Brown J.,
Aug. 13/10. Digest No. 3018-020
(Approx. 10 pp.)
WILLS
LIMITATION OF ACTIONS
DISCOVERABILITY – Plaintiff was
not statute barred from bringing a motion
for leave to amend its statement of claim
to add third parties as defendants.
Motion by plaintiff for leave to amend the
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REPAIR LIENS – There was a serious
issue to be tried as to whether plaintiff’s
vehicles were subject to storer’s liens. The
vehicles were to be released to plaintiff
pending trial.
Motion by plaintiff pursuant to s. 23 of the
Repair and Storage Liens Act (Ont.) for a
determination of its rights, and for an injunctive order requiring defendants to release
vehicles to it. Plaintiff operated a trucking
company using a small fleet of tractors and
trailers. Defendant A Ltd. leased premises
which it made available for parking and storage of trucks and trailers. Plaintiff had parked
its fleet there since it commenced operations
in 2009. In June 2010 plaintiff learned that
A Ltd. had registered storage liens against
plaintiff’s vehicles under the Act and was
preventing it from removing the vehicles
from the property. In July 2010, defendant
bailiff served a notice to sell the vehicles pursuant to the Act.
HELD: Motion granted. A Ltd. contended
that in June 2009 it entered into a storage
agreement with plaintiff. There were
accumulated storage charges since January
2010. A Ltd. properly registered storer’s liens
and was entitled to detain three tractors and
eight trailers of plaintiff in the yard on its
property. The contract bore the signature of
N on behalf of plaintiff. N owned a related
company. The owner of plaintiff, K, deposed
that he had no knowledge of the existence of
the contract until the bailiff provided him
with a copy and that N had no authority to
bind plaintiff. There were serious questions
for trial as to whether A Ltd. had a valid possessory lien over plaintiff’s vehicles on the
REVOCATION – A will was not revoked
by the testator’s marriage because the will
was intended to survive the marriage.
Appeal from a finding that a testator’s
will was revoked by his subsequent marriage to respondent. The testator began a
relationship with respondent in April 2003.
They commenced cohabitation in August
2003. In April 2005, the testator finalized
the divorce from his former wife. In June
2007, the testator executed a new will and
appointed respondent as his attorney. They
were married in August 2007. The testator
died in November 2007. The June 2007 will
bequeathed one-half of the estate to
respondent by way of a spousal trust. The
beneficiaries were the testator’s four children from his prior marriages. Through
inadvertence, the solicitor who made the
will failed to include the customary declaration that the June 2007 will was made in
contemplation of marriage. The trustee and
executor consequently sought a ruling as to
whether the will was revoked by subsequent
marriage pursuant to para. 14(1)(a) of the
Wills Act (B.C.). The chambers judge found
that the will did not survive the conversion
of a common law relationship to lawful
marriage in the absence of the salient declaration in the will. The will was revoked
and the testator’s estate fell to be distributed
on intestacy. On appeal, the trustee submitted that the judge erred in failing to find
sufficient evidence of intent that the marriage would not revoke the will.
HELD: Appeal allowed. The judge gave
an unduly limited meaning to the prevailing jurisprudence in finding that the presence of a declaration of intention to marry
was a precondition to the examination of
extrinsic evidence to identify the contemplated spouse. The judge was permitted to
consider the surrounding circumstances
existing at the time that the will was executed given the ambiguity of the use of the
term “spouse” in references to respondent.
Given the terms of the will, the circumstances in which it was prepared, and the
use of the term “spouse” therein, there was
no doubt that the testator intended that
the will would survive his marriage to
respondent. The nature of the estate planning and consequent terms revealed that
the spousal trust and children’s fund were
planned as an integral whole, and
expressed in the will in contemplation of
the impending marriage.
MacLean Estate v. Christiansen,
[2010] B.C.J. No. 1601, B.C.C.A., per
Kirkpatrick J.A. (Newbury and Grober-
man JJ.A. concurring), Aug. 16/10. Digest
No. 3018-021 (Approx. 9 pp.)
