The Lawyers Weekly - January 14, 2011

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., [2010] 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
arbitration.

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 arbitration.

EPCOR Power L.P. v. Petrobank Energy and Resources Ltd., [2010] 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., [2010] O.J. No. 5055, Ont. S.C.J., McLean J., Nov. 24/10. Digest No. 3033- 018 (Approx. 7 pp.)

PENSIONS
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.

WILLS
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.