not able to determine on the evidence
whether plaintiff was absolutely entitled
to the amount of money that it claimed.
FL and DL were officers and directors of
F Inc. The claim against them was based
on the notion that plaintiff was a subcontractor to F Inc. on the construction
contracts and that trust obligations
arose against them under the
Construction Lien Act (Ont.). No actual construction contracts were tendered to
establish that relationship. It was clearly
contrary to the agreement which
describes the arrangement was a partnership with partners of co-equal status.
While there may be fiduciary responsibilities that flowed from the partnership, they did not involve the Act. Since
there is no basis for a trust claim under
the Act, the action against FL and DL
was dismissed.
F.D.M. Contracting Co v. FTD Con-
struction Inc., [2010] O.J. No. 4372,
Ont. S.C.J., Lauwers J., Oct. 6/10.
Digest No. 3026-016 (Approx. 3 pp.)
REAL PROPERTY
TORTS
CONDOMINIUMS – Appellate court
refused to evict respondent from her con-
dominium unit but ordered her to cease
making noise.
Appeal by a condominium corporation
from a decision declining to evict respondent
from her unit. Over the years, respondent’s
neighbours had repeatedly complained that
she made noise at all hours of the day and
night by slamming doors and cupboards.
The corporation had fined respondent twice
for her conduct, but still it persisted.
Respondent deposed that her neighbours
were operating a drug lab and admitted that
she slammed doors in retaliation for their
inappropriate conduct. Investigations by the
police and condominium board had failed to
confirm respondent’s suspicions about her
neighbours. The judge found that he lacked
the authority to order respondent’s eviction
because the condominium bylaws did not
provide for such a remedy.
HELD: Appeal allowed in part. It was
inappropriate to leave the corporation without a remedy where respondent continued
to cause a nuisance to her neighbours and to
contravene the condominium bylaws
against making excessive noise. The corporation was not entitled to the remedy of
an eviction. Respondent was ordered to
cease making noise that unreasonably interfered with the use and enjoyment of other
units. The corporation was entitled to return
to court to seek another remedy if respondent failed to comply with the order.
Condominium Corp. 8110264 v. Far-kas, [2010] A.J. No. 1153, Alta. C. A., per
Slatter J. A. (Berger and Rowbotham JJ. A.
concurring), Oct. 13/10. Digest No. 3026-
018 (Approx. 4 pp.)
DEFAMATION – Appellate court
upheld award of general damages for def-
amation but set aside awards for aggra-
vated and special damages.
Appeal from a judgment awarding damages for defamation. Plaintiff owned and
occupied a unit in a condominium building.
He was also president of the condominium
corporation and chair of its board of directors. Defendant’s friend owned, but did not
occupy, a unit in the same condominium.
Differences arose respecting decisions that
the plaintiff made as president and director
of the condominium corporation, and the
manner of making and implementing those
decisions. Defendant wrote a letter to plaintiff complaining of plaintiff’s treatment of his
friend, calling plaintiff a deceitful, belittling,
lying criminal and a disgrace. He accused
plaintiff of telling half-truths, and characterized his actions as fraudulent. Defendant also
sent the letter to the residents of the building.
Plaintiff commenced an action in defamation. Defendant apologized. The trial judge
found defendant’s letter defamatory and his
letter of apology inadequate. She rejected the
defences of justification, fair comment and
qualified privilege and awarded the plaintiff
general damages of $7,000, aggravated damages of $5,000, and special damages of
$11,654 for moving costs.
HELD: Appeal allowed in part . The
decision of the trial judge ought to be sub-
stantially affirmed as the words used by
defendant in his letter were clearly defama-
tory and the trial judge rejected the defences
of justification, qualified privilege and fair
comment, which the defendant did not
challenge. Furthermore, there was nothing
that the judge said or did that rendered the
trial unfair. The trial judge made no error in
principle in her assessment of general dam-
ages as she gave careful consideration to all
of the relevant factors. However, the judge
erred in awarding aggravated damages.
That award was for the same reasons as the
general damages award and amounted to
double counting. The award of special dam-
ages was set aside as the judge erred in
concluding that the defamatory statements
caused plaintiff to move from the building.
PROFESSIONS
& OCCUPATIONS
DISCIPLINE – Appellate court set
aside findings of unprofessional conduct
against appellant psychologist.
Appeal from a decision on two counts
of unprofessional conduct. An Appeal
Panel upheld a finding that appellant
psychologist was guilty of failing to
maintain an appropriate professional
relationship with a client, CR. The
Appeal Panel also found appellant guilty
of inadequate record keeping. Appellant
had been practicing as a psychologist
since 1983. CR was referred to appellant
following a motor vehicle accident from
which she suffered chronic pain. CR
insisted that appellant not take any notes
of the sessions. Appellant complied with
the request. Appellant and CR had some
social interaction in addition to their
clinical sessions. During an acrimonious
divorce, CR’s husband formally complained to respondent College about
appellant. CR never complained about
appellant’s treatment or his conduct.
There was no evidence or even a suggestion that the complainant was harmed in
any manner by the conduct of appellant.
HELD: Appeal allowed. The Appeal
Panel’s reasons failed to illuminate any
reasoning to explain the crucial statements in its decision that appellant
breached the Standards of Practice by
failing to keep adequate records. There
was also a complete absence of explanation for the finding of unprofessional
conduct. There was no line of analysis
within the given reasons that could have
reasonably led the Tribunal from the evidence before it to the conclusion at which
it arrived. The reasons of the Appeal
Panel would effectively eliminate any discretion in Tribunals or Appeal Panels to
determine whether conduct had reached
the point of being a contravention and
was therefore unprofessional conduct.
An automatic finding of unprofessional
conduct would not, however, be consistent with a reasonable interpretation of
the Guideline on which the Appeal Panel
relied. The decision was unreasonable.
Sussman v. College of Alberta Psycholo-
gists, [2010] A.J. No. 1157, Alta. C. A., per
Côté, Watson and Bielby JJ. A., Oct. 13/10.
Digest No. 3026-017 (Approx. 20 pp.)
SALE OF LAND
REQUISITIONS – Court issued order
ruling that severance of a property did
not contravene Planning Act (Ont.).
Application for order ruling on validity of
respondent’s requisition requiring a severance of subject property to be granted by the
Planning Board. The land in question
involved three adjoining lots. The deceased
owned two and the other was owned as
tenant-in-common with his wife. The application related to the middle lot owned by
the deceased. There was an agreement of
purchase and sale and the purchaser sought
a clarification that the Planning Act (Ont.)
had not been contravened.
HELD: Order granted. There was no
contravention of the Act. The will of the
deceased appointed his wife as executrix
and sole beneficiary. The will specifically
stipulated for alternate executors and,
for whatever reason, the wife relinquished her trusteeship of the estate.
The deceased’s son was appointed estate
trustee. He would also have been
declared the trustee for all of the assets
owned by the deceased. The will entitled
the trustee(s) to sell, call in and convert
into money and to postpone such conversion of such estate or any part or
parts thereof for such length of time as
they may think best. The son had decided
that it was time to sell the property and
he had the right to do so under the will.
The wife consented to the transfer and
was in no way prejudiced by it.
Magee Estate v. Clark, [2010] O. J. No.
4264, Ont. S.C.J., Del Frate J., Oct. 7/10.
Digest No. 3026-019 (Approx. 2 pp.)
DEFAMATION – Statements made
by defendant doctor to Children’s Aid
Society were protected by the statutory
defence of qualified privilege.
Motion for summary judgment to dismiss plaintiff’s libel action. Plaintiff had
commenced five libel and slander actions
relating to incidents surrounding the 2005
birth of her granddaughter. She had sued
the hospital, two doctors, a registered nurse,
the Children’s Aid Society (CAS), two of its
employees and a former family friend. Her
daughter was a co-plaintiff in two of the
actions. Defendant was the daughter’s doctor. Plaintiff sued defendant for making
defamatory statements to the CAS, which
she denied. In any event, defendant stated
that she was protected by the statutory
defence of qualified privilege.
HELD: Motion granted. Every person
who performed professional or official duties with respect to children, including a
health care professional as defined in subs.
72( 5) of the Child and Family Services Act
(Ont.) was under a statutory obligation to
report a child in need of protection. Defendant had reason to believe that the baby’s
health was at risk and communicated those
concerns to the CAS. There was no allegation or evidence to suggest that defendant
acted out of malice or for reasons other than
a sense of duty. Plaintiff failed to adduce any
evidence to rebut the presumption of qualified privilege. The action was dismissed.
Ryabikhina v. Leong, [2010] O.J. No.
4215, Ont. S.C.J., Belobaba J., Oct. 5/10.
Digest No. 3026-021 (Approx. 3 pp.)
Classifieds
MISSING HEIRS
Cogan & Assoc. International
probate research, locators of
missing heirs. Tel: 519-770-0500,
Fax: 519-770-0059.
www.heirtrace.com
GENERAL LAW PRACTICE FOR
SALE IN COTTAGE COUNTRY
Very lucrative. Turnkey. 613-332-0016.
bancroftlawpracticeforsale.ca
GENERAL LITIGATION JUNIOR
ASSOCIATE
Well established law firm in
Cambridge, Ontario requires an
associate with 1+ years experience
in litigation. Our firm offers the
opportunity for a sophisticated
practice in a congenial environment
with competitive compensation
and benefits. Please forward
your resume and references to
Pavey, Law & Witteveen LLP, 19
Cambridge Street, P.O. Box 1707,
Cambridge, ON, N1R 7G8, fax
number 519-621-1304 or by email
to info@paveylaw.com
FAMILY LAWYER
Established firm based in Oakville
seeking an Associate with a
minimum of 3-5 years experience.
Real Estate experience an asset.
Work/Life balance. Please fax/
email resume: 905-257-8065/
nlopclawfirm@hotmail.ca
EXPERIENCED LEGAL
TRANSCRIPTIONIST
with fully-equipped home office
seeks opportunity to assist you
with expert document preparation.
References. available. Contact:
legalworks@live.ca
CLASSIFIED AD
