Kelly Estate v. Kelly, [2010] O.J. No.
5093, Ont. S.C.J., Coats J., Nov. 24/10.
Digest No. 3033-010 (Approx. 14 pp.)
respondent would be acting beyond its
statutory authority in closing the airport.
The judge refused to grant the injunctions.
She found that appellant had not suffered
irreparable harm and that the balance of
convenience favoured respondent.
HELD: Appeal dismissed. It was not
possible to grant summary judgment giving
a declaration that respondent was in breach
of its contractual duties with appellant
because no such breach had yet occurred,
nor was it at all certain that any such breach
would ever occur. While a decision had been
made to close the airport in the future, that
decision did not compel the conclusion that
the sublease would necessarily be breached
as a result. Whether or not a breach would
ultimately occur was not known at this time.
The injunctions were properly refused. The
granting of mandatory injunctions was discretionary. Appellant had established no
palpable and overriding error which the
judge made in exercising her discretion to
refuse to grant the mandatory injunctions.
Airco Aircraft Charters Ltd. v.
Edmonton Regional Airports Authority, [2010] A.J. No. 1384, Alta. C.A.,
per Ritter and Bielby JJ.A. and Read J.
(ad hoc), Dec. 2/10. Digest No. 3033-
012 (Approx. 8 pp.)
PROPERTY – Trial judge did not err
in his reapportionment of family assets.
Appeal by the wife from a divorce order
reapportioning the family assets in her
favour and awarding her spousal and child
support. The parties married in 2000.
Their son was born in 2001 and they separated in 2007. Prior to the marriage, the
wife’s father had transferred the family
home to her name. After the marriage, the
parties moved into the wife’s home. The
total family debts at separation were
$211,684. The total family assets were
$748,891. At trial the wife sought a division
of assets that would leave her with the
family residence, a Honda vehicle, and no
debts. The trial judge awarded her 75 per
cent of the net value of the family assets.
The trial judge ordered the husband to pay
$366 per month in child support. The
judge awarded the wife lump sum spousal
support of $15,720. The wife was given the
family residence and the Honda vehicle.
The husband was awarded an equalization
judgment for $91,944. The wife alleged
that a waiver signed by the husband relinquished any claim to the family home or the
Honda vehicle, precluding those assets
from being considered family assets.
HELD: Appeal dismissed. The waiver
document signed by the husband had no
bearing on the determination of what
assets were family assets as it was neither a
separation agreement nor a marriage
agreement. The wife had not established
that the family residence and the Honda
vehicle were not ordinarily used for a
family purpose. The wife failed to demonstrate that the judge’s reapportionment of
the family assets, already substantially in
her favour, amounted to an error of law or
an application of discretion that was not
exercised judicially. The judge followed the
correct approach by imposing an equal
sharing of the family debt on each of the
parties and then dividing the net value of
the family assets.
Karisik v. Chow, [2010] B.C.J. No.
2408, B.C.C.A., per Smith J.A. (Newbury
and Hinkson JJ.A. concurring), Dec. 3/10.
Digest No. 3033-011 (Approx. 13 pp.)
CHARGE TO JURY – Trial judge
erred in his charge to the jury on burden
of proof by incorporating into his instruc-
tions the concept of a state of doubt.
Appeal from a jury verdict dismissing
appellant’s action against respondent surgeon, who had treated appellant in 1986 for
a fracture of his upper arm bone. Appellant
was subsequently diagnosed with compartment syndrome and Volkman’s Ischemia, a
condition resulting in the permanent
deformation of his left hand. In charging
the jury on the burden of proof, the trial
judge instructed the jury that if they were
left in a state of doubt that respondent
breached the standard of care or with
respect to causation, appellant had not
satisfied the burden of proof. Appellant
argued that instructions were incorrect in
equating balance of probabilities to being in
a state of doubt. The jury found that
respondent had not breached the standard
of care owed to appellant.
HELD: Appeal allowed. The trial judge
erred in his instructions on the burden of
proof. By incorporating into his instruc-
tions the concept of a state of doubt, he
created confusion about the applicable
burden and further, what was required to
meet that burden. The judge’s instructions
could be taken by the jury as creating two
separate burdens of proof; one being on a
balance of probabilities and the other being
in a state of doubt or equating balance of
probabilities to being in a state of doubt.
Neither of these alternatives properly
described the burden on a plaintiff in a civil
proceeding. In a jury trial, an understand-
ing of the applicable burden of proof was
critical to the jury’s decision-making. A
new trial was ordered.
LANDLORD & TENANT
INTERNATIONAL LAW
EXTRADITION – Appellate court
upheld order that appellant be commit-
ted for extradition to the United States to
stand trial for murder.
Appeal from an order that appellant be
committed for extradition to the United
States to stand trial for murder. Appellant’s
extradition was requested in connection
with the fatal stabbing of a Muslim cleric in
Arizona. The appellant went by a number
of sourced aliases, including the name
under which he was arrested in Calgary.
Circumstantial evidence in the Record of
the Case (ROC) linked appellant to the
murder. Fingerprints and other physical
evidence linked to the aliases matched that
taken from appellant upon his arrest in
Calgary. A judge ruled that the evidence
contained in the ROC was admissible. The
judge found that there was sufficient legal
authority for taking appellant’s fingerprints
upon his arrest. The evidentiary trail
proved, on a balance of probabilities, that
appellant was the person sought.
HELD: Appeal dismissed. Although
the trial judge erred in concluding that
the fingerprint evidence was admissible
through the direct testimony of police,
and erred in considering the affidavit
photographic evidence, both were properly admissible as contained in the ROC.
The fingerprint evidence was in a presumptively reliable format, and the police
officer who took the fingerprints could
have testified at the extradition hearing.
Exclusion of the fingerprint evidence
would result in a triumph of form over
substance. The photographic evidence in
the ROC was of sufficient quality for consideration. Had the evidence been
inadmissible, the curative provisions of
para. 53(b)(ii) of the Extradition Act
would have resulted in dismissal of the
appeal, as no substantial wrong or miscarriage of justice occurred as a result of the
decision to issue a committal order.
Canada (Attorney General) v. Francis, [2010] A.J. No. 1364, Alta. C.A.,
per Bielby J.A. (Côté J.A. and Sulatycky
J. (ad hoc) concurring), Nov. 30/10.
Digest No. 3033-013 (Approx. 8 pp.)
TERMINATION OF COMMERCIAL LEASE – Landlord validly terminated applicant’s tenancy pursuant
to a clause providing for termination if
the landlord intended to redevelop or
renovate the shopping centre.
Application for interpretation of the commercial lease for a retail store located in a
shopping centre. Applicant tenant operated a
clothing store in a commercial/retail development owned by respondent landlord. The
lease for the store dated back more than 30
years and involved predecessors of both the
tenant and the landlord. By 2007, after several lease extension agreements, the lease
was reaching the end of its term. The lease
included an option to renew for a further five
years, exercisable by the tenant, at a market
rental rate to be agreed or determined by
operation. The tenant exercised its option.
The parties argued on rent of $40 per square
foot. The landlord provided a draft extension
agreement, which the tenant signed, that
included a redevelopment termination
clause. The clause provided that the landlord
could terminate the lease on three months’
notice if there was an intention to demolish,
redevelop or renovate all or any part of the
shopping centre. In April 2010 the landlord
sent the tenant a termination notice, exercising its rights under the termination clause. In
response, the tenant requested detailed
Classifieds
INJUNCTIONS
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
MANDATORY INJUNCTIONS –
Appellant unable to establish any error
by the judge in refusing to grant summary judgment or injunctions to restrain
respondent from closing an airport.
Appeal from a decision refusing to grant
summary judgment for declarations that
respondent was in breach of its statutory
and contractual duties by proposing to close
first one runway and later the entire City
Centre Airport in Edmonton. Appellant also
appealed from the judge’s refusal to grant
injunctions requiring respondent to keep
the airport open. Respondent had a sublease with appellant for a term of 15 years
with an option to renew for a further 25
years. In 2009, respondent’s board of directors passed a resolution which contemplated the eventual closure of the airport.
The case management judge concluded
there were genuine issues of material facts
requiring a trial because it was premature to
say whether a breach of the sublease was
inevitable. The judge also concluded that a
trial was required to determine whether
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RE: ESTATE OF HARRY JOHN
KRETSCHMANN;
RE: ESTATE OF RUTH BERTINE
RE: ESTATES OF JOHN MILLER,
deceased
and BETTY MAY MILLER,
deceased
