condominium, a bank account, an RSP,
proceeds of a life insurance policy and
a pension payout. After separation, the
wife purchased a home in the Hamptons
and a van. The trial judge divided the
marital property into two groups: the
matrimonial homes and the other assets.
In calculating the value of the matrimonial homes, he exempted the parties’
contributions from the sale proceeds
of the former homes, as well as the lot
the wife inherited from her brother. He
then divided the remaining value of the
properties equally. In distributing the
other assets, the trial judge included the
Hamptons home, three bank accounts,
the van and household contents, all of
which were in the possession of the wife,
and determined that the total value of
the assets was $569,800. The judge then
deducted the wife’s exemptions, which
included the proceeds of the condominium and the retirement funds from
her brother’s estate, subtracted the husband’s exemption for the sale of a premarriage asset, and concluded that the
wife was to make an equalization payment of $119,900. The wife appealed.
HELD: Appeal allowed in part. The
wife was entitled to a further exemption of $137,028, less $19,000 for funds
used for living expenses, in relation to
her inheritance from her brother. The
wife demonstrated that the life insurance
proceeds and pension payout from her
brother’s estate could be traced into her
existing assets. However, the wife had
not demonstrated that the trial judge
erred in his exercise of discretion to divide the property equally.
Scheffelmeier v. Krassman, [2011]
A.J. No. 171, Alta. C.A., per Berger and
Rowbotham JJ.A., reasons dissenting
by McDonald J.A., Feb. 18/11. Digest
No. 3042-012 (Approx. 11 pp.)
provide respondent a copy of any response
she received from her Canada Pension Plan
disability application.
Armer v. Armer, [2011] O.J. No.
728, Ont. S.C.J., Trousdale J., Feb. 7/11.
Digest No. 3042-013 (Approx. 4 pp.)
JUDGMENTS & ORDERS
SPOUSAL SUPPORT – Court varied
consent order for spousal support
because applicant wife had to move
out of jointly owned property and start
paying rent.
Motion for variation of a consent order
for spousal support. Applicant was receiving $600 per month. The order had been
based on applicant being able to reside
in a jointly owned property. Respondent
was permitted to collect the rents from
the other units in that property and was
responsible for the expenses. The property was subsequently sold and applicant
obtained alternative accommodation at
a net rental of $1,050 per month. Applicant alleged she was unable to work due
to severe alcoholism and depression. She
was previously employed as a hair stylist
and worked with respondent in his company. She still did some occasional hair
cutting and styling and earned approximately $100 a month. Applicant claimed
that respondent had an annual income of
$64,523 and sought spousal support of
$1,800 per month.
HELD: Motion granted. There has
been a material change in circumstances
as applicant no longer had the use of the
apartment and was obliged to pay rent.
She was unable to work other than on a
casual basis and had applied for a disability
pension from Canada Pension Plan. An
estimate of $45,000 per year for respondent’s income was reasonable. Based upon
the annual incomes of the parties, respondent was to pay applicant $1,500 per month
commencing Nov. 1, 2010. Applicant was to
SUMMARY JUDGMENT – Motion
judge did not err in allowing respond-
ent’s claim for damages to proceed to
trial but erred in allowing continua-
tion of respondent’s claim for dimin-
ished compensation.
Appeal from the dismissal of appellant
employer’s application for summary judgment dismissing respondent employee’s
claim for wrongful dismissal. Respondent
was employed as a financial advisor and
sales representative. He had executed a
shareholder advisor agreement which contained detailed provisions regarding his
engagement, including termination of the
agreement with or without cause and the
compensation to be paid in such an eventuality. Near the end of 2002 respondent
began to suffer from an illness or injury
which affected his ability to perform his
employment responsibilities. Issues arose
between parties concerning respondent’s
performance, which caused respondent to
transfer his clients to another employee
and execute a resignation letter. Appellant made the payment required under
the employment agreement. However,
respondent claimed that the actions of
appellant reduced the value of his book
of business, which in turn reduced the
amount paid out. Respondent sued appellant for wrongful dismissal, negligence,
negligent misrepresentation, intentional
infliction of mental suffering and emotional shock and breach of duty. Appellant’s motion for summary judgment to
dismiss the claim was granted. However,
on appeal, the motion for summary judgment was dismissed, with the exception of
respondent’s claim for intentional infliction of mental suffering and emotional
shock. The motions court judge concluded
that respondent had succeeded in demonstrating that his claim for damages, with
one exception, had a real chance of success.
HELD: Appeal allowed in part. Respondent’s claim for damages should proceed to
trial. While the supporting medical evidence
for the claim was not strong, it could not be
said that the motions court judge erred in
fact or in principle or that her decision was
so clearly wrong as to yield a truly unjust
result in her determination that there was
a sufficient prospect of success, based on
respondent’s factual assertions. However,
with respect to the claim of diminished compensation resulting from the alleged reduction in the value of his book of business,
the judge erred as she failed to appreciate
that there was no hard evidence to support
respondent’s allegations.
Bodnarchuk v. RBC Life Insurance
Co., [2011] M.J. No. 46, Man. C.A.,
per Scott C.J.M. (Steel and Chartier
JJ. A. concurring), Feb. 11/11. Digest No.
3042-014 (Approx. 12 pp.)
Appeal from the dismissal of plaintiffs’
motion to add additional defendants to
their action. Plaintiff KM was an infant
who suffered a severe brain injury at
birth. He was born on May 17, 2001. His
parents brought a timely action against
a number of health practitioners. They
retained their lawyer in February 2002
and received all the records from the
hospitals involved by May 2002. Their
lawyer consulted with a specialist in neo-natology in March 2003, but the specialist did not alert him to any claims against
additional parties. Shortly before the trial
was to commence, the family was granted
an adjournment to permit them to move
to add claims against others involved in
the infant’s postnatal care. Their potential liability was not discovered until
December 2009 when plaintiffs received
the report of a second specialist. The
motion was dismissed as statute-barred.
The judge found the claim was discoverable, at the latest, six months after March
2007, when the family saw the second
specialist, and was statute-barred two
years after that.
HELD: Appeal allowed. The motions
judge erred in treating the issue as a question of fact to be determined based primarily on the evidence of counsel for the family
of what he did and did not do, without
considering the law with respect to discoverability of claims. The claims against the
proposed new defendants were discoverable prior to Jan. 1, 2004, so the limitation
period under the former Limitations Act
(Ont.) applied. That Act provided that the
limitation period did not commence until
the infant reached the age of majority.
Macksoud (Litigation guardian of ) v.
Carroll, [2011] O.J. No. 623, Ont. C.A.,
per Feldman J.A. (Goudge and Watt
JJ.A. concurring), Feb. 9/11. Digest No.
3042-015 (Approx. 8 pp.)
second opinion in 2003 and was told she
had been disfigured by the first surgery,
her breasts were deformed and that she
would require corrective surgery. Plaintiff filed a complaint against defendant
with the College of Physicians and Surgeons and met with a solicitor. However,
because of problems in obtaining medical records and opinion from a doctor
that was satisfactory to her solicitor,
plaintiff did not commence her action
until June 2005. Defendant successfully
moved to have the claim dismissed as
being brought outside the one year limitation period in subs. 89( 1) of the Health
Professions Procedural Code (Ont.).
HELD: Appeal dismissed. Plaintiff
had knowledge of the material facts on
which the claim was based following her
meeting with the doctor that provided
the second opinion in 2003 and therefore
her claim was statute-barred. Given the
information plaintiff received from that
doctor, his reluctance to provide a formal
opinion regarding the negligence of the
defendant did not delay the start of the
limitation period.
Lawless v. Anderson, [2011] O.J. No.
519, Ont. C. A., per Rouleau J. A. (Weiler
and Blair JJ.A. concurring), Feb. 8/11.
Digest No. 3042-016 (Approx. 9 pp.)
MORTGAGES
DISCOVERABILITY – Plaintiff’s
claim in negligence against doctor was
barred by one year limitation period in
subs. 89( 1) of Health Professions Pro-
cedural Code (Ont.).
Appeal from the dismissal of plaintiff’s claim in negligence as being statue-barred. In 2003 plaintiff met with
defendant doctor regarding breast augmentation surgery. Plaintiff signed a
consent form to undergo the procedure.
The surgery did not go well and plaintiff was advised that she would need
a second surgery. Plaintiff obtained a
POWER OF SALE – Defendants
entitled to production of documents
related to sale of mortgaged property
before closing of the sale.
Motion by defendants for an order that
plaintiff banks produce an agreement of
purchase and sale and other documentation related to the sale of the mortgaged
property. Defendant N was the principal
of the defendant B Inc. Plaintiff banks
sought to recover $17,544,623 pursuant
to security. N had personally guaranteed
$12,350,000 of the principal debt and
had a significant interest in the realiza-tion process by the banks through their
privately appointed receiver. In February
2010 plaintiff Bank of Montreal advised
defendants that the mortgage was in
default and demanded payment in full.
A receiver was appointed. The receiver
took steps to market the property. In
November 2010 the receiver entered into
a binding agreement of purchase and sale
for the property. The banks refused to
provide a copy of the sale documentation
to defendants’ counsel.
Classifieds
LIMITATION OF ACTIONS
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
123 JOHN STREET
steps from the University
courthouses, brick & beam lofts,
reception, amenities, up to 5 offices.
123johnstreet@gmail.com
DISCOVERABILITY – Motion
judge erred in failing to fin limita-
tion period for adding new defendants
did not commence until infant plaintiff
reached age of majority.
NEXT TO NORTH YORK
RE: ESTATE OF
ERWIN GUSTAVE PHANN
