purchased property insurance from
respondent. Under the heading coverage, their policy included permanently
installed outdoor equipment including
outdoor antennae, fences, retaining
walls and driveways. The common exclusions portion of the policy stated that
respondent did not insure settling,
expansion, contraction, moving, bulging,
buckling or cracking of insured property,
or loss or damage to outdoor swimming
pools, outdoor antennae, and other
items. Appellants also purchased an
endorsement which amended the policy
to provide property coverage for damage
to their pool caused by all risks other
than flooding or water-borne objects.
The applications judge interpreted the
policy and endorsement as excluding
coverage for damage caused to the pool
in the nature of moving and cracking.
HELD: Appeal allowed. Appellants
were entitled to a declaration that they had
coverage for the loss relating to their pool.
The application of the common exclusions
to the endorsement would virtually nullify
coverage under the endorsement. Such a
result could not have been within the reasonable expectation of the parties. The
judge erred in failing to consider the most
obvious of risks to the pool and making a
determination of whether or not the nullification of coverage doctrine applied.
Cabell v. Personal Insurance Co.,
 O.J. No. 622, Ont. C.A., per
Rosenberg J.A. (MacPherson and
LaForme JJ.A. concurring), Feb. 8/11.
Digest No. 3041-017 (Approx. 10 pp.)
RENT – Plaintiff only entitled to pay-
ment of rent from company that entered
Action by plaintiff for payment of rent.
Plaintiff leased restaurant premises to
defendant LL Inc., which sublet it to a
tenant who abandoned the premises
before the lease term expired. LL Inc. was
without assets and plaintiff sued several
companies including a businesswoman
M, personally, alleging misrepresentations and a guarantee by her. Plaintiff
sought $600,000 in damages. Plaintiff’s
president agreed there was neither a personal guarantee from M in the lease or
any provision by which she had personal
responsibility for anything in it. Defendants moved for a non-suit.
HELD: Action allowed in part. Judgment was granted against LL Inc. for the
monthly lease payments and taxes owing
up to the date that the premises were rerented. The action was dismissed against
all defendants except LL Inc. There was no
evidence of a guarantee by M. In any event,
the guarantee alleged by plaintiff’s president
was an oral guarantee and was barred by s.
8 of the Statute of Frauds (Ont.). There
was nothing improper about incorporating
a company solely for the purpose of entering
into a commercial lease. It was for plaintiff
to protect itself in respect of the financial
soundness of LL Inc. There was no basis for
a finding of fraud, deceit or dishonesty on
the part of M.
Flying Saucer Restaurant Ltd. v.
Lick’s Leasing Inc.,  O.J. No. 382,
Ont. S.C.J., Quinn J., Jan. 31/11. Digest
No. 3041-018 (Approx. 8 pp.)
LIMITATION OF ACTIONS
found that the grassy strip was City
property that did not form part of the
street and that appellants had no right to
use it to gain access to their property.
The judge concluded that the Council
resolution denying appellants’ request
was tainted by bad faith on the ground
that the process lacked the candour,
frankness and impartiality that was
required of municipal bodies.
HELD: Appeal dismissed. Cross-appeal allowed. The application judge did
not err in concluding that the grass strip
was City property and did not form part
of the street. Appellants had no right to
use it to gain access to their property. In
finding that the City’s consideration of
the appellants’ request for permission to
access was tainted by bad faith, the judge
misapprehended the evidence as to what
occurred before the Council. The judge
also erred by applying standards of procedural fairness that were more applicable to an adjudicative body than to the
proceedings of an elected municipal
council. The Council was under no statutory or common law duty to provide a
quasi-judicial hearing to appellants.
Appellants were afforded the opportunity
to present their case.
Drake v. Stratford (City),  O.J.
No. 518, Ont. C.A., per Sharpe, Blair
and Rouleau JJ.A., Feb. 8/11. Digest No.
3041-020 (Approx. 4 pp.)
PLANNING & LAND USE
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MEDICAL MALPRACTICE – Chambers judge did not err in dismissing
defendants’ application for summary
judgment based on expiration of limitation period.
Appeal from the dismissal of defendants’ application for summary judgment.
The infant plaintiff A was born on May 19,
1998. The allegations of negligence related
to the treatment of her mother, M, from
her admission at the hospital until the
birth. A was subsequently diagnosed with
cerebral palsy. Plaintiffs contended that A’s
medical condition was attributable to
defendants’ negligence at the time of birth.
Plaintiffs commenced their action on July
4, 2007. Defendants sought summary dismissal on the basis that the limitation
period had expired. The chambers judge
dismissed the application, specifically
finding that the parents could not have
reasonably discovered that the injury was
attributable to defendants’ conduct until
receipt of an expert medical report issued
in April 2004.
HELD: Appeal dismissed. Defendants did not meet the threshold for summary dismissal based on a limitation
period defence. The medical reports and
assessments made available to the parents by defendants did not explicitly suggest, nor necessarily imply, that A’s cerebral palsy might have been caused by the
negligence of defendants at the time of
birth. A’s parents were in the process of
coping with a newborn whose disabil-ities were fully determined over many
months. The conclusion that the parents
could not have reasonably discovered the
injury until receipt of the April 2004
report was consistent with the test for
reasonable diligence. The decision was
set aside to the extent that it specifically
found that the action was not statute-barred, as that was a matter for the trial
judge. The chambers judge was limited
to determining whether there was a
genuine issue for trial.
Dunlop v. Paras,  A.J. No. 124,
Alta. C.A., per O’Brien and Slatter JJ.A.
and Hawco J. (ad hoc), Feb. 10/11.
Digest No. 3041-019 (Approx. 5 pp.)
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MUNICIPAL PROPERTY – Trial
judge did not err in finding appellants
had no right to gain access to their property over a strip of land owned by
Appeal from a decision dismissing
appellants’ application for a right of
access to their property from a street
over a grass strip owned by respondent
City. Cross-appeal from an order nullifying a City Council resolution denying
appellants’ request and ordering further
proceedings. Appellants’ property
backed onto the grass strip that separated their property from the street.
Appellants sought to access their property from the street over the grass strip
to facilitate a building project. The
request was denied by Council. Appellants applied for relief under the
Municipal Act (Ont.). The application judge
BUILDING PERMITS – CBO
reached reasonable conclusion when
she issued building permit for construc-
tion of residence for battered women.
Appeal under subs. 25( 1) of the
Building Code Act (Ont.) from the decision of
the Chief Building Official (CBO) to issue
a building permit for the construction of a
residence for battered women. Leave was
granted to Interval House Ottawa to intervene. Applicants were 24 residents and/or
property owners who lived on the street
where the building was to be constructed,
or in the immediate vicinity. The principal
issue was whether the residence was a
“group home” within the applicable municipal bylaw so as to permit the issuance of
a building permit for construction in the
HELD: Appeal dismissed. The CBO
reached a reasonable conclusion that the
characteristics and proposed land use
and operation of the Interval House project was properly dealt with as a group
home rather than a shelter, so as to be
permitted in a residential zone. The
building was a “residential use home”
within the meaning of the bylaw. Accessory uses were permitted. The CBO concluded that the several small offices were
an appropriate accessory use. The definition of group home provided for residential use of three to 10 persons. Interval
House would house 10 women and, where
required, their dependent children. It
would be economically impractical to run
a home for only three or four battered
women with dependent children, so as to
come within a total 10 person limit inclusive of the children. Support services
were essential and a complement of 10
women residents was likely the minimum
needed to make the project viable.
Berjawi v. Ottawa (City), 
O.J. No. 379, Ont. S.C.J., Hackland J.,
Jan. 31/11. Digest No. 3041-021
(Approx. 9 pp.)