information as to the demolition, redevelopment and renovations. The tenant took the
position that the notice of termination was
invalid as the landlord had not demonstrated
that it required the tenant’s premises to carry
out the redevelopment.
HELD: Application dismissed. The
landlord was entitled to issue the notice of
termination. The language used by the
parties expressly contradicted any connection between the tenant’s space and the
exercise of the right to terminate as the
termination clause expressly referred to
the landlord’s right arising where there
was an intention to renovate all or any part
of the shopping centre. Such an interpretation did not result in a commercial
absurdity or harsh result, but rather
accorded with commercial efficacy.
Fairweather Ltd. v. RioCan YEC
Holdings Inc.,  O.J. No. 4999,
Ont. S.C.J., Stinson J., Nov. 23/10.
Digest No. 3033-015 (Approx. 6 pp.)
LIMITATION OF ACTIONS
ARBITRATION – Court declined to
strike notice of arbitration because of
limitation period and referred matter to
Appeal from a judge’s refusal to strike
respondent’s arbitration notice. Appellant
was the buyer, and respondent the seller,
in a long-term gas sale contract for the
supply of natural gas for the operation of
appellant’s power plant. The contract commenced in 1989 and was to expire in 2012.
The price appellant was to pay for the gas
was in part determined by the Large Direct Customer Rate as published by Ontario
Hydro, which had not been published
since the hydro industry in Ontario was
deregulated. The parties could not agree
on a new way to calculate the gas price
under their contract. Respondent started
rendering invoices relying on its view of
the contract price and appellant paid them
based on its interpretation. Respondent
issued a notice of arbitration. Appellant
took the position that the time limits to
pursue arbitration had expired and moved
to strike the notice. The court declined to
strike the notice because it would leave the
parties in legal limbo with respect to the
price of gas under their contract. The
judge left the limitations issue for the arbitrator to decide.
HELD: Appeal dismissed. The court
was only required to decide issues that
could be readily resolved on superficial
material and would expeditiously dispose
of the entire matter between the parties.
The limitations argument was not such an
issue. Even if the court could resolve the
issue, it was not bound to do so and was
entitled to refer the entire matter to arbitration. A decision on the limitations issue
would do nothing to resolve the parties’
ultimate dispute. The parties’ agreement
to allow the court to interpret the arbitration clause in their contract did not oust
the court’s discretion to refer the matter to
EPCOR Power L.P. v. Petrobank
Energy and Resources Ltd.,  A.J.
No. 1415, Alta. C.A., per Paperny and
Ritter JJ.A. and Horner J. (ad hoc),
Dec. 10/10. Digest No. 3033-016
(Approx. 6 pp.)
DISCOVERABILITY – Discover-
ability rule applied to subs. 46(1) of the
Professional Engineers Act (Ont.), thus
extending the one year limitation period.
FOREIGN JUDGMENTS – Applicant barred by the two-year limitation
period in the Limitations Act, 2002
(Ont.) from enforcing a Quebec judgment in Ontario.
Application to enforce a Quebec default
judgment against respondent in Ontario.
Applicant obtained a default judgment of
$35,362 against respondent in November
2005. Respondent did not pay any
amounts or appeal the judgment. By January 2009, interest of $9,793 had accumulated on the judgment. In July 2010 applicant applied to enforce the judgment in
Ontario. Respondent took the position the
application was statute-barred.
HELD: Application dismissed. A Quebec judgment was a foreign judgment for
the purposes of enforcement. The new
Limitations Act, 2002 (Ont.) provided
for a two year limitation on proceedings.
Paragraph 16(1)(b) of the Act provided an
exception for proceedings to enforce an
order of a court but there was no indication the legislature meant to include foreign judgments within its scope. The two-year limitation period applied to bar
applicant’s application to enforce the Quebec judgment. Had the Legislature
intended that the standard two-year limitation period not apply to foreign judgments, it could have easily specified this
intention in the Act.
Commission de la Construction du
Québec v. Access Rigging Services Inc.,
 O.J. No. 5055, Ont. S.C.J.,
McLean J., Nov. 24/10. Digest No. 3033-
018 (Approx. 7 pp.)
SURVIVORS BENEFITS – Applicant
not entitled to survivor benefits under
deceased husband’s pension plan.
SURVIVORS BENEFITS – Applicant
was refused declaration that his former
spouse had waived her entitlement to
his OMERS survivor’s pension.
Application for a declaration that
applicant’s former wife had waived her
entitlement to his OMERS survivor’s
pension. The parties married in 1983 and
separated in July 1992. The husband had
retired in January 1992. The parties
entered into a separation agreement in
November 1992, which provided that the
husband was entitled to his pension plan
as at the date of separation, free of any
claim or interest by the wife. The OMERS
pension plan was specifically included
under that provision. After the husband
remarried, OMERS declined to transfer
over his pension to his new wife without a
form being signed by respondent ex-wife,
which she refused to complete.
HELD: Application dismissed. The
provisions in the separation agreement
relied upon by the husband did not did
not comply with the prescribed form in
the Pension Benefits Act (Ont.). In view
of the failure to comply strictly with the
Act, the husband was unable to make use
of the exception created by subs. 46(1).
While it was reasonable for applicant to
have believed that his former spouse had
given up any interest she might have had
in his survivor’s pension, given the man-
datory requirement that in order for the
waiver to be valid, the prescribed form
must be used, the husband found himself
in a trap for the unwary.
VALIDITY OF WILL – Court found
that a 1994 will as modified by a hand-
written codicil to be the valid last will
and testament of a deceased.
Application for an interpretation of the
deceased’s testamentary documents.
Under a handwritten will executed in
1989, the deceased left a portion of the
residue of her estate to the Royal Society
for Cruelty to Animals and Children
located at a certain address in Glasgow.
Under a formal typewritten will drafted by
a solicitor and executed in 1994, the residue of the estate was bequeathed to the
Glasgow and West of Scotland Society for
Prevention of Cruelty to Children and Animals at the same address as used for the
Royal Society in the 1989 will. The trustee
made inquiries and found there was no
charity known by either name, although
the charity named in the 1994 will had
merged to become respondent Scottish
Society and was located at the address
listed in the will. The trustee identified
another charity with a similar name but it
had no known connection with the
address. In addition, there was a handwritten note on the will, which indicated
that the residue of the estate should be
divided between the original beneficiary
and a second charity. The 1994 will was
prepared by a solicitor, was formally executed and contained a standard clause
revoking all prior wills. However, the 1989
will was altered by the deceased through
interlineations and handwritten notes,
some of which bore dates subsequent to
the execution of the 1994 will. The
deceased initialled but did not sign any of
the changes or interlineations on the 1989
will. In addition to the two wills, a handwritten note, dated 2007, was found
among the deceased’s papers. The note
listed a number of specific bequests to be
added to the deceased’s will and was signed
by the deceased.
HELD: Application allowed. The
deceased’s 1994 will as modified by the
handwritten codicil were the last will and
testament and codicil of the deceased. The
two charities were the residuary beneficiaries and each had a one-half interest in
the estate. Because none of the changes or
interlineations on the 1989 handwritten
will contained the deceased’s signature,
they did not amount to a valid holographic
will. The 2007 note was a statement for
future will use only and did not have testamentary effect. As the deceased had executed two previous wills, she was familiar
with the requirements of a formal will and,
consequently, had she intended to effect
changes to her testamentary disposition,
she would have done so more formally
either by making them on the actual will
document or by having a solicitor prepare
a new will or formal codicil. The handwritten notations on the 1994 will qualified as
a codicil as the notation was entirely in the
handwriting of the deceased and was
accompanied by her signature. The will
intended to benefit the Scottish Society.
Gibbon Estate v. Sleeping Children
Around the World,  O.J. No.
5001, Ont. S.C.J., Stinson J., Nov. 23/10.
Digest No. 3033-021 (Approx. 5 pp.)