of handwriting analysis, each of whom
indicated that the conclusions reached in
B’s report were unreliable.
HELD: Application granted. The essential question was whether the proposed
evidence could lead the court to the conclusion that there was evidence in the record
essential for committal that could be found
manifestly unreliable or so defective that it
should be removed when deciding the issue
of the commital. The line between expert
opinion evidence being used to support a
competing inference or as evidence demonstrating manifest unreliability was blurred.
The only way the court could be sure that it
did not demonstrate manifest unreliability
was to hear it in full. Defendant was allowed
to tender the proposed evidence.
France v. Diab, [2010] O.J. No. 5317,
Ont. S.C.J., Maranger J., Dec. 6/10.
Digest No. 3034-017 (Approx. 5 pp.)
thick load-bearing wall which separated
the office and warehouse. Originally, the
wall had a 36-inch doorway, but at some
point the doorway had been widened to 10
feet. In October 2008 respondent entered
into an agreement of purchase and sale to
purchase the unit from another corporation, conditional on the receipt of a clean
status certificate. A status certificate was
signed on Oct. 22, 2008 and, relying on the
status certificate, respondent closed the
transaction and took possession of the unit
on Oct, 31, 2008. Two days after the status
certificate was signed, a representative of
applicant attended at the unit for a routine
inspection. At that time, he noticed that the
doorway had been widened. He attempted
to bring the problem to the attention of the
unit owner. After respondent took possession of the unit, it received a letter from
applicant advising it of the unauthorized
alteration of the wall. In the spring of 2010,
respondent retained a structural engineer,
who assessed the situation, designed the
necessary reinforcement and supervised its
execution. While the wall was not returned
to its original configuration, the completed
work was safe and capable of supporting
the wall and roof trusses.
HELD: Application dismissed. The
problem with the wall was a circumstance
that was financially material to the purchaser’s purchase decision and should have
been disclosed in the status certificate. As
applicant was aware of the problem with the
wall and the potential financial issue it
raised on a timely basis and respondent
reasonably relied on the silence of the status
certificate on that issue, the certificate was
binding on the applicant and it was estopped
from pursuing the respondent for the restoration of the wall. Furthermore, it was
neither fair nor equitable for the court to
order the restoration of the wall as respondent had paid to reinforce the wall even
though it was not the one who altered it,
and no useful purpose would be served by
compelling respondent to restore the wall.
Durham Condominium Corp. No. 63
v. On-Cite Solutions Ltd., [2010] O.J. No.
5214, Ont. S.C.J., Lauwers J., Dec. 2/10.
Digest No. 3034-019 (Approx. 7 pp.)
order for partition and sale unless the
actions of the applicant or the circumstances dictate otherwise. There was a clear
commitment to stay on the mortgage for
two years. Applicant’s change of heart was
not precipitated by anything done by
respondent. There had been no default.
Applicant had a good reason for wanting to
be removed early from the mortgage but she
made an agreement and had to live with it.
The application was adjourned until the two
year anniversary of the mortgage.
Myers-Fontana v. Myers, [2010]
O.J. No. 5322, Ont. S.C.J., Corbett J.,
Dec. 3/10. Digest No. 3034-020
(Approx. 2 pp.)
TORTS
PENSIONS
DISABILITY PENSIONS – Court
upheld finding that applicant had failed
to establish new facts entitling her to a
disability pension.
Application for judicial review of a decision of the Pension Appeals Board that
applicant was not disabled. Applicant first
applied for a disability pension in 1998.
After her initial application was dismissed,
she sought review from the Review Tribunal. The Tribunal dismissed her application
in 2000. In 2004, applicant applied to reopen the Tribunal’s decision on the basis of
2003 medical reports of a psychologist and
applicant’s family physician. The Tribunal
found that the reports qualified as new
facts and that applicant was disabled. The
Pension Appeal Board held that applicant
had not established new facts. The Board
accepted that the new reports showed a
new and different diagnosis, but found that
these were a result of the passage of time
and retrospective analysis concerning facts
that evolved in 2003 rather than facts that
existed at the date of applicant’s minimum
qualifying period.
HELD: Application dismissed. There
was nothing in the record demonstrating
that the psychologist’s report could not
have been discoverable on or before the
minimum qualifying period by the exercise
of due diligence. The Board’s conclusion
that the report did not constitute new evidence was thus not unreasonable. The
family physician did not provide a different
diagnosis of the underlying medical condition in 2003 than he did in 2000. The
Board’s conclusion that the physician’s
2003 report did not contain new facts was
reasonably open to it.
Whitney v. Canada (Attorney general), [2010] F.C.J. No. 1506, F.C.A., per
Layden-Stevenson J.A. (Nadon and
Dawson JJ.A. concurring), Nov. 30/10.
Digest No. 3034-018 (Approx. 4 pp.)
DEFAMATION – Trial judge did not
err in dismissing part of appellant’s defamation action because of common law
privilege of fair and accurate reporting.
Judge did err in failing to dismiss balance of appellant’s claim.
Appeal from the summary dismissal of
part of appellant’s action against respond-
ents for damages for defamation. Appellant
was a lawyer who acted as counsel for a
group of companies sued by its franchisees.
He was found jointly and severally liable
with his clients for solicitor and client costs
of the action totaling $140,000. In July
2005 respondents wrote and published an
article regarding the trial. The last five
paragraphs reported on the costs ruling. In
September 2006 the Court of Appeal
allowed appellant’s appeal from the costs
award against him. The court found that
the finding of a common financial interest
was palpably wrong, and that appellant was
not in a conflict of interest. Respondents
wrote and published an article stating that
appellant was vindicated. In between the
two rulings, appellant commenced an
action for defamation in relation to the July
2005 article. Respondents moved for sum-
mary judgment. The judge held that the
portion of the article related to the costs
award was protected by the common law
privilege related to fair and accurate
reporting on judicial proceedings. That
portion of the action was dismissed. The
judge refused to dismiss the portion of the
action related to passages in the article
reporting on fraud charges faced by the
president of the companies.
Classifieds
PARTITION AND SALE – Court
adjourned application for partition
and sale of property until after the
expiration of a two year mortgage commitment by applicant.
Application for partition and sale of
property. Applicant and respondent held
title as joint tenants to a property which
was the home of respondent’s parents.
Respondent’s father was applicant’s brother.
The home had been respondent’s parents’
matrimonial home for several years. They
had run into financial difficulties and were
not able to maintain financing on their
home, which was worth about $450,000.
They asked applicant to help and she
agreed. The house was transferred to the
parties at a value of $450,000. Applicant
did not put any equity into the property. A
five year mortgage of $428,072 was
obtained from the bank and respondent
and her family agreed to pay all costs associated with the property. Both sides of the
family knew that applicant’s commitment
was for two years only. Later, applicant
needed her credit to finance her daughter’s
education and asked her brother to
refinance to remove her from the title and
mortgage. It could not be done.
HELD: Application adjourned. A joint
owner of real estate had the right to an
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
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WANT GREATER RETURNS
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RZCD is a full-service law firm,
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Interested applicants should email
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RE: ESTATE OF
HARRY JOHN KRETSCHMANN;
RE: ESTATE OF
RUTH BERTINE KRETSCHMANN
Anyone having knowledge of
a Will of the late Harry John
Kretschmann, who died on or about
November 22, 2010 and a Will of
his spouse, Ruth Bertine
Kretschmann, who died on or
about November 29, 2010, both
of the City of Kitchener, in the
Province of Ontario, is requested
to contact Walters, Gubler,
Barristers & Solicitors, Telephone:
519-578-8010, Fax: 519-578-9395,
or email: kblack@wglaw.org
REAL PROPERTY
CONDOMINIUMS – Court dismissed
application by condominium corporation
to have condominium owners restore
wall in its unit to its original conditions.
Application for an order requiring
respondent condominium owner to restore
a wall in its unit to its original condition.
Applicant condominium corporation was
responsible for 35 industrial use units and
the common elements of the condominium. The unit in question had a 10-inch
MIDLAND
I am looking for an associate to
work with and eventually take
over a small town practice. I am
looking to retire within 5 years.
This is a busy general practice with
emphasis at present on Family Law,
Real Estate and Estates, giving an
opportunity to expand into other
areas of practice. A recent call will
certainly be considered if you are
a self starter and can handle small
town life in cottage country. Please
reply to prostlaw@bellnet.ca or fax
705-526-1209.
RE: ESTATES OF
JOHN MILLER, deceased
and
BETTY MAY MILLER, deceased
Anyone having knowledge of a
will of the late John Miller who died
October 20, 2009 and of a will for
his sister, Betty May Miller who died
July 3, 2007 both last residing at 205
Cummer Avenue, North York, Ontario
is requested to contact Robert Grant,
Grant & Acheson LLP, solicitor,
265 Bridge Street, Fergus, Ontario
N1M 2W7. Telephone 519-843-1960,
email bob@grant-acheson.com.
