report. An actuary placed a present value
on plaintiff’s future health care needs of
$719,901. Faced with that substantial
monetary claim, defendant insurer
wished to have plaintiff participate in a
life care assessment/future care cost
assessment by their expert.
HELD: Motion granted. If plaintiff
elected to place before the court evidence
concerning her future care needs as determined by a non-health practitioner, she
could hardly be heard to claim that it
would be unfair to order her to submit to
such an assessment by a person chosen by
the defence. Fairness could only be
achieved by ordering plaintiff to participate in a life care assessment by defendant’s expert notwithstanding that there
was a lack of evidence from a health practitioner that such an assessment was
needed as a diagnostic aid. To deny defendant the ability to have an expert in life care
needs of its choosing would not create a
level playing field.
Vanderidder v. Aviva Canada Inc.,
[2010] O.J. No. 5011, Ont. S.C.J.,
Granger J., Nov. 22/10. Digest No.
3032-006 (Approx. 8 pp.)
CONSTRUCTION LIENS
EXPIRY – Defendant able to establish that plaintiff’s builder’s lien was
invalid because it was registered more
than 45 days from the date the work was
completed.
Application for an order dismissing
plaintiff’s claim on the grounds that its lien
had expired. Defendant also sought an
order vacating the claim for lien and certificate of action registrations. Defendant
hired plaintiff as general contractor to
expand its hotel property. Defendant
alleged plaintiff abandoned the project on
Dec. 19, 2008. Plaintiff informed the architect, sub-trades and suppliers on Jan. 6,
2009 that the project was shut down until
further notice. Plaintiff’s construction
manager noted the last work and materials
were supplied to the project on Feb. 16,
2009 when he brought a millwright to the
site. Defendant claimed nothing was done
on the project on that day. Plaintiff registered a builder’s lien against the property
on March 17, 2009 for the sum of
$1,287,029. It issued a statement of claim
and registered a certificate of action. Plaintiff failed to comply with a timetable for the
steps to be taken before trial.
HELD: Application allowed. Plaintiff’s
lien was ordered discharged. The lien
registration and certificate of action were
vacated and the action dismissed. The
court accepted defendant’s claim that
plaintiff ceased working on the project in
December 2008. Given that defendant
was required to hire its own millwork contractor, it was unlikely the plaintiff’s contractor did any work on February 2009.
No painters, plumbers or HVAC installers
did work in February 2009 on behalf of
plaintiff. A letter written by plaintiff’s
principal was evidence that no work was
done on the project by plaintiff after Dec.
19, 2008. The lien, filed on March 17, 2009
was invalid because it was registered more
than 45 days from the date work completed. Plaintiff also failed to provide a
valid excuse for failing to comply with
court-order deadlines.
Edgecon Construction Inc. v. 746136
Ontario Ltd., [2010] O.J. No. 5058,
Ont. S.C.J., DiTomaso J., Nov. 17/10.
Digest No. 3032-007 (Approx. 9 pp.)
INTERPRETATION – Plaintiff car
salesman failed to establish he was owed
commission by defendant car dealership under terms of its commission pay
plan.
Action for an accounting of commissions earned and not paid in full. Plaintiff
was employed as a car salesman by defendant car dealership from December 2002
until August 2006. His commissions were
calculated in accordance with an annual
pay plan. The pay plans were constructed
on the basis that each car sale to a customer resulted in a gross profit to the
dealership and a commission to the salesperson, with a fall back to the salesperson
that should that not occur, the salesperson
would nevertheless be paid a stated base
commission. In calculating the gross profit
for determining the salesperson’s commission, the dealership used real costs and
valuations. Although certain practices
used by the dealership in calculating the
commissions were not within the wording
of the pay plan, they were standard dealership industry practices. Plaintiff alleged
that he did not understand what some of
the terms in the pay plan meant. He took
the position that defendant was legally
bound by the express wording of the pay
plan in effect during his employment.
Defendant denied that there was any commission owing to plaintiff. Defendant took
the position that the meaning of the contract should be ascertained on the literal
interpretation of the words used, and that
those words, in the context in which the
contract was made, and the usage of the
words employed in the contract, left only
one interpretation which was unambiguous and enforceable.
HELD: Action dismissed. Plaintiff
failed to prove that he had been underpaid
commissions by defendant. The parties
intended that the pay plans were to be in
accordance with dealership industry practice and plaintiff understood how the pay
plan worked and how his commissions
were calculated on defendant’s actual
gross profit.
Morgan v. John Bear Pontiac Buick
Cadillac Ltd., [2010] O.J. No. 4848,
Ont. S.C.J., Crane J., Nov. 15/10. Digest
No. 3032-008 (Approx. 12 pp.)
DAMAGES
ASSESSMENT – Trial judge in third
party action erred in his finding of liability against third party. Damages
awarded to defendant reduced to $50,
913.
Appeal from judgment in a third party
action requiring the third party to pay
damages. Plaintiff in the main action had
successfully brought an action against
defendant condominium owner for dam-
ages for breach of contract and negligence
for failing to keep the roof of the condo-
minium complex in a proper state of
repair. She was awarded damages of
$719,058. The trial judge concluded that
the condominium corporation acted
unreasonably in hiring the third party, a
roofer, to repair the roof of the complex in
the face of reports which indicated that
more extensive repairs or replacement of
the roof were necessary, and that it acted
unreasonably in continuing to take advice
from and entering into contracts with the
roofer and in failing to take alternate
action when the roof repairs did not
resolve the water leaks. After the trial of
the main action, defendant moved for an
order that the findings of fact and the
quantum of damages in the main action
were binding on the roofer. The order was
granted. At the trial of the third party
action, the trial judge found the roofer
liable for negligent misstatement, negli-
gence and breach of contract. In addition,
the judge found that the roofer was largely
responsible for the amounts that defend-
ant was required to pay to plaintiff, but
reduced its entitlement to contribution
and indemnity by one-tenth.
DAMAGES
(PERSONAL INJURY)
INCOME LOSS – Trial judge did not
err in consideration of plaintiff’s past
and future income loss resulting from
motor vehicle accident.
Appeal from the assessment and quantification of damages awarded to plaintiff.
Plaintiff, a motorcyclist, was involved in a
collision with a vehicle driven by a municipal employee. Defendants admitted liability for the accident. Pre-accident, plaintiff
was employed as a driller and was physically active. He had pre-existing issues with
arthritic joints in his hands, right leg and
left knee. In the accident, plaintiff suffered
injuries to his left knee, right shoulder and
neck, left wrist and right cheek and jaw.
Plaintiff claimed that the ongoing symptoms caused the eventual loss of his job
and left him unable to work. He also
claimed he could no longer engage in
sporting activities or assist with housework, and that the injuries adversely
affected his relationship with his family.
The trial judge awarded general damages
of $75,000, future care costs of $6,200
and special damages of $4,402. The award
for past and future income losses was
based on an economist’s report, subject to
calculation by the parties.
HELD: Appeal dismissed. Plaintiff’s
return to work did not mark the end of the
period for calculation of past income loss,
as the evidence established that his return
to work was fraught with problems associ-
ated with his injuries that rendered him
unable to perform his duties on an ongoing
basis. His eventual lay-off was based on his
inability to fully perform expected tasks.
The judge did not err in preferring the
calculation methodology espoused by
plaintiff’s expert witness. The judge made
adjustments for negative contingencies
where appropriate and otherwise found
that the methodology and assumptions
accurately reflected actual drilling rig
operations and plaintiff’s likely future
career path within the industry.
LOSS OF EARNING CAPACITY –
Trial judge erred in charge to the jury
with respect to loss of future earning
capacity. New trial ordered.
Appeal from the award of damages to
plaintiff in her action arising from a 2003
motor vehicle accident. Plaintiff had begun
work as a dental assistant and had plans to
obtain more education to become a dental
hygienist. Plaintiff did not return to work
until October 2004 because her injuries
from the accident caused her chronic pain
and psychological injuries, resulting in
panic attacks at work. Plaintiff commenced training to become a dental
hygienist in March 2009. At trial, the jury
awarded plaintiff $240,000 for future loss
of earning capacity, based on the assumptions that a full-time hygienist would earn
$1,143,886 in her lifetime, and that plaintiff would only be able to work seven- or
eight-tenths of a full-time hygienist position.
HELD: Appeal allowed. The judge
erroneously instructed the jury that plaintiff was entitled to an award for loss of
future income earning capacity even if
they concluded that she was capable of
earning the same amount of income over
her life that she would have earned had
she not had the accident. The judge also
instructed them correctly that an award
under that head of damages was appropriate only if plaintiff would lose some income
over the course of her life because of her
injuries. Those instructions would have
confused the jury. The judge also failed to
adequately convey to the jury that defendant was contesting whether or not plaintiff’s injuries were permanent in nature. A
new trial was ordered.
Sobolik v. Waters, [2010] B.C.J. No.
2292, B.C.C.A., per Kirkpatrick, Gar-
son and Hinkson JJ.A., Nov. 24/10.
Digest No. 3032-011 (Approx. 12 pp.)
DEBTOR & CREDITOR
LOANS – Plaintiff bank was awarded
partial summary judgment in amount of
AED 19,649,762.68 for amounts owed
on guarantees on credit facilities.
Motion by plaintiff bank for partial
summary judgment. Defendant MC
owned a construction company, and
through that company and a variety of
others, he was involved in construction
projects around the world. The various
companies shared an office, directors,
officers, shareholders, and employees.
The companies were owned by some
combination of MC and his family mem-
