tions against applicant in the statement of
claim made it clear that some of the claims
could be covered under the policy. Thus,
there was a duty on respondent to defend.
There was no policy exclusion which completely and clearly excluded coverage.
PCL Constructors Canada Inc. v. Encon
Group, [2010] O.J. No. 4566, Ont. S.C.J.,
Wilson J., Oct. 27/10. Digest No. 3029-012
(Approx. 8 pp.)
JUDGMENTS & ORDERS
SETTING ASIDE – Court set aside
summary judgment to allow defendants
to amend their pleadings to plead subs.
18(1) of the Limitations of Civil Rights
Act (Sask.).
Appeal by defendants from summary
judgment. The parties entered into an
agreement for the purchase and sale of a
vehicle. The purchase price was $44,412,
with a down payment of $200 and monthly
payments of $692, with the first payment
due one month after the signing of the
agreement. Defendants made the down
payment, took possession of the vehicle, and
made no further payments. Defendants
alleged that they had been advised by plaintiff of a problem with the loan and financing
institution, which required a $3,000 down
payment. Defendants were not prepared to
pay the additional money and were told to
return the vehicle. The vehicle was resold
for $27,900. Plaintiff issued a statement of
claim claiming $14,785 for losses incurred
under the agreement. It applied for and was
granted summary judgment. Defendants
admitted that they never made any loan
payments, but alleged that it was not their
fault because of the issues with the financing. In addition, they alleged that their
signatures were forged on some of the loan
documents, and that they were fraudulently
induced into signing the agreement having
been told that the vehicle could be financed
with a $200 down payment. Defendants
sought to amend their statement of claim to
plead subs. 18(1) of the Limitations of Civil
Rights Act (Sask.) to add a counterclaim for
fraudulent misrepresentation and forgery,
and to claim frustration of contract.
HELD: Appeal allowed. Notwithstanding the failure of defendants’ counsel to
raise the subs. 18(1) defence, the nature and
strength of the defence meant that the
amendment to plead the defence should be
allowed. Given the nature of the relief provided by subs. 18(1) and the strong likelihood that plaintiff was fully aware of the
provisions of the legislation, there was no
prejudice to it. The summary judgment was
set aside and the matter was remitted to the
court to allow plaintiff to make an argument
as to whether it should be provided relief
pursuant to subs. 18( 6) of the Act and to
allow defendants to apply to amend their
pleadings.
Slater v. Taylor Volkswagen Inc.,
[2010] S.J. No. 665, Sask. C.A., per Lane
J.A. (Jackson and Ottenbreit JJ.A. con-
curring), Nov. 4/10. Digest No. 3029-013
(Approx. 7 pp.)
by the province contrary to its civil service
master agreement with the union. After
allowing the union’s grievance, the arbitrator
ordered the parties to negotiate the pay rate
for the new position in accordance with the
agreement. The province and the union
could not agree, so the union asked the arbitrator to determine the pay rate. The province took the position that the arbitrator
lacked jurisdiction to determine the pay rate.
The arbitrator found that he had jurisdiction
and the province appealed. The court found
that the arbitrator had only been appointed
to determine whether a new position had
been created, and that the appropriate pay
rate was a separate issue that required the
appointment of another adjudicator.
HELD: Appeal dismissed. The issue
before the arbitrator was one of jurisdiction
or vires, reviewable on the standard of correctness. The court was not required to
engage in a standard of review analysis. The
union had only grieved the creation of the
new position, not its pay rate, such that the
issue of the appropriate pay rate was not
before the arbitrator. Without the province’s
consent to the fresh appointment of the
arbitrator, the arbitrator lacked jurisdiction
to adjudicate this issue.
Nova Scotia (Transportation and
Infrastructure Renewal) v. Nova Scotia
Government and General Employees
Union, [2010] N.S.J. No. 565, N.S.C.A.,
per Hamilton J.A. (Saunders and Bever-
idge JJ.A. concurring), Nov. 3/10. Digest
No. 3029-014 (Approx. 9 pp.)
gagors had notice that the application for
summary judgment was still a live issue
given the authority the judge found, and
they were given a fair opportunity to respond
to the application.
Hrycyk v. Sun Mortgage Corp., [2010]
S.J. No. 666, Sask. C.A., per Richards
J.A. (Lane and Ottenbreit JJ.A. concur-
ring), Nov. 4/10. Digest No. 3029-015
(Approx. 7 pp.)
MUNICIPAL LAW
BYLAWS – Court upheld bylaw passed
by respondent to regulate usage of a pub-
lic dock but quashed that part of the
bylaw restricting commercial activities
during July and August.
Application for a declaration that
respondent township’s Public Docks bylaw
was invalid. Alternatively, applicant sought
an order to quash the most recent amend-
ment to the bylaw because it was not passed
in good faith. Adams Bay was on the west
shore of a lake which fell mostly within the
township. Most of the shoreline was
developed as cottage property with the
exception of a section that was owned by the
township. That section was used as a public
access site. The township maintained a dock
on that property. To the east of the dock was
an unimproved section of shore that was
used by commercial barge operators to load
and unload construction equipment and
materials for various projects on the nearby
island and mainland properties. The use of
the land as public access to the lake had
gone on for many years. Tensions between
the Adams Bay cottagers and the islanders
and contractors who used the landing inten-
sified, especially since the contractors who
used the landing increased the size and
number of their barges. The bylaw and its
amendments were enacted to regulate the
increased usage.
PLANNING & LAND USE
PERMITTED USE – Use of a property
on an island for a commercial resort was
not a permitted use under the relevant
zoning bylaw.
Appeal from the issuance of an injunc-
tion prohibiting appellant from using his
property on an island as a commercial
MORTGAGES
FORECLOSURE – Chambers judge
did not err in summarily granting
respondent an order nisi for foreclosure
on a property.
Appeal from an order nisi for foreclosure. Appellant mortgagors entered into a
mortgage with respondent mortgagee for
the face value of $385,000. The mortgage
was secured by a residential property valued at $525,000. The mortgage matured
and the principal and interest came due at
the beginning of 2009. However, the mortgagors had not made any payments on the
mortgage since May 2008. As a result, the
mortgagee issued a statement of claim,
claiming that the mortgagors were indebted
to it in the amount of $440,924 and sought
summary judgment in that amount as well
as foreclosure of the mortgage and sale of
the mortgaged property. The mortgagors
filed a defence, putting in issue the amount
owing under the mortgage and claiming a
contravention of the Cost of Credit Disclosure Act (Sask.). The chambers judge found
that disclosure of financing particulars had
been made to the mortgagors in a commitment letter. He granted the mortgagee
summary judgment and ordered an
accounting to determine the amount owing
under the mortgage.
HELD: Appeal dismissed. A claim for
damages under subs. 48( 2) of the Act was
not a defence to a demand for amounts
owing pursuant to a mortgage, but rather
was a freestanding claim, and was not
amenable to resolution pursuant to an
application by the mortgagee for summary
judgment. However, given that the mortgagee did not contest the mortgagors’ claim
for damages, the chambers judge made no
error in proceeding in the way he did. In
addition, the judge made no error in striking the mortgagors’ claim for exemplary
damages. Finally, the judge made no error
in granting summary judgment as the mort-
Classifieds
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RE: ESTATE OF
PATRICK FRED COUNAHAN
Anyone having any knowledge
of a Will of the late Patrick Fred
Counahan, of the City of Toronto,
in the Province of Ontario, who died
on September 29, 2010, at the age
of 89, is requested to contact Brian
Rice at 905-727-2148 or email
margrice27@gmail.com.
EDMONTON DOWNTOWN
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SMALL LITIGATION FIRM IN
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RE: ESTATE OF
BETTY MAY-FOON HO
LABOUR RELATIONS
JURISDICTION – Arbitrator lacked
jurisdiction to determine issue that arose
out of an earlier decision.
Appeal from a decision setting aside an
arbitrator’s finding that he had jurisdiction
to determine an issue. The issue was the
appropriate rate of pay for a position created
PRIME OFFICE SPACE
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RE: ESTATE OF
VLASTA SCHEYBAL
Anyone having any knowledge of
a Will of the late Vlasta Scheybal,
of the City of Toronto, in the
Province of Ontario, who died on
or about July 5, 2009 in the Czech
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