mortgage. 155 was entitled to the funds
held in trust to be paid on account of the
$135,000 mortgage, with any shortfall to
be borne by H and L. A Corp. was liable to
pay the balance of the $440,000 loan and
was liable to pay the outstanding balance
on the $135,000 loan as guarantor.
Hendrix v. Award Financing Corp.,
[2011] O.J. No. 754, Ont. S.C.J., Mesbur
J., Feb. 22/11. Digest No. 3044-017
(Approx. 11 pp.)
MOTOR VEHICLES
VICARIOUS LIABILITY OF
OWNERS – Defendant W failed to
establish defendant G driving vehicle
without consent at time of accident.
Motion for summary judgment. In
2003 defendant G was involved in an
accident with a pedestrian while driving
a car owned by defendant W. The accident resulted in a claim against both
defendants. W alleged G had been driving her car without consent when the
accident happened. She sought to have
the action against her dismissed. G did
not defend the action.
HELD: Motion dismissed. Section 192
of the Highway Traffic Act (Ont.) applied
to make the owner of a car strictly liable
for damages caused by the negligent oper-
ation of the car and created a prima facie
cause of action for damages against the
owner. The onus was on W, as the owner of
the car, to show that G did not have her
consent to be in possession of it. G had
obtained his licence to drive shortly before
the accident. He and W were engaged and
living together. W’s evidence was that G
was told he could only drive her car if she
was in it. She alleged that on the day of the
accident she was in bed with a cold and
did not know G had taken the car. W’s evi-
dence on the issue of consent was incon-
sistent with the police officer’s notes in
which G stated he was on his way to pick
up W at a restaurant. The evidence fell
short of displacing the presumption that G
was driving with her consent.
REAL PROPERTY
EASEMENTS – Respondent cottag-
ers had prescriptive easement over
laneway because of continuity of use.
Appeal from the dismissal of appellant’s
motion for summary judgment. The par-
ties were engaged in an ongoing dispute
over who was responsible for upgrading a
laneway which, over the years, had fallen
into disrepair. Appellant property owner
was the successor in title to a farm prop-
erty that was adjacent to cottage proper-
ties owned by the cottagers and held title
to most of the laneway. However, it did not
use the laneway and did not want to pay
for its upgrading. Appellant wanted
respondent municipality to assume the
laneway as a municipal road, but the
municipality refused to do so until the
laneway was brought up to municipal
standards. The cottagers, who were the
laneway’s primary users, were prepared to
contribute to the laneway’s upgrading.
Appellant commenced an action and
moved for summary judgment for a dec-
laration that the cottagers did not have a
prescriptive easement over the laneway
and for an injunction prohibiting the cot-
tagers from driving upon the laneway dur-
ing the winter until the laneway was
upgraded. The motion judge found that
the cottagers had a prescriptive easement
and dismissed appellant’s motion. Appel-
lant argued that the judge erred in deter-
mining that the cottagers had acquired an
easement over the laneway by failing to
apply the doctrine of illegality based on
the cottagers’ breach of municipal bylaws
and in concluding that there was a suffi-
cient evidentiary basis for finding a pre-
scriptive easement.
evidence about his pension situation disentitled him to damages because it was necessary to look at the net impact of the financial ramifications of his resignation.
HELD: Appeal by attorney general
allowed in part. Appeal by DL dismissed.
The trial judge erred in her apportionment of liability and in concluding that L
Ltd. and P owed fiduciary duties to plaintiffs only after plaintiffs became members
of the L Ltd. plan. She failed to properly
account in her apportionment analysis
for the fiduciary duties owed and breached
by L Ltd. and P and by apportioning liability in a way that was fundamentally
inconsistent with her own description of
the blameworthy conduct of the parties.
A fair and reasonable adjustment to the
judge’s apportionment of liability resulted
in the assignment of 60 per cent fault to
the attorney general and 40 per cent fault
to L Ltd. and P. DL’s salary loss claim was
so factually connected to an anticipated
pension gain that it was entirely appropriate for the judge to decline to award
damages without evidence relating to the
potential pension gain.
Ault v. Canada (Attorney General),
[2011] O.J. No. 845, Ont. C.A., per
O’Connor A.C.J.O., MacPherson and
Cronk JJ.A., Feb. 28/11. Digest No.
3044-020 (Approx. 23 pp.)
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NEGLIGENT MISREPRESENTA-
TION – Trial judge erred in apportion-
ment of liability for negligent misrepre-
sentation and breach of fiduciary duties.
Appeal by defendant attorney general
and plaintiff L from a trial judgment
awarding all plaintiffs except DL damages
for negligent misrepresentation. Plaintiffs
were federal public servants. Defendant P,
an actuary and pension consultant, had
persuaded plaintiffs to resign from the
public service and join his company, L Ltd.
Plaintiffs would then transfer their federal
pension to the L Ltd. plan under a reciprocal transfer agreement in order to achieve a
higher pension value. Once the pension
funds were transferred, plaintiffs would
resign from L Ltd. and transfer their moneys out of the L Ltd. plan. The Treasury
Board and Revenue Canada became concerned about the legitimacy of the plan and
advised P and L Ltd. of their concerns.
Defendants never advised plaintiffs of the
concerns. Revenue Canada revoked the
plan and plaintiffs’ pension funds were not
transferred. They sued for negligent misrepresentation and sought to recover the
loss of income and pension incurred as a
result of resigning from the public service.
The trial judge found that the attorney
general owed duties of care to plaintiffs as
employer and pension plan administrator
and misrepresented the portability of their
pension to the L Ltd. plan. The trial judge
held that L Ltd. and P were also liable to
plaintiffs for negligent misrepresentation
and breach of fiduciary duty. The judge
apportioned liability 80 per cent to the
attorney general and 20 per cent to L Ltd.
and P. DL had advanced a claim for lost
salary only. The trial judge determined
that, although DL had suffered a loss of
salary and severance pay, his failure to lead
ENTITLEMENT – Decision of
respondent Appeals Commission
lacked justification, transparency and
intelligibility.
Appeal from a decision upholding a
decision by respondent Appeals Commission, denying appellant’s claim for benefits
for depression arising from a work accident. Appellant was injured at work in
March 2004. Her claim for injuries to her
back, spine, head, wrist and knee was
accepted. Wage replacement and medical
aid benefits were paid. Appellant also complained of anxiety and depression. Over the
next several years she was examined and
treated by numerous health care professionals. Different diagnoses were made.
Some considered appellant as suffering
from depression unrelated to the accident,
while others found that she suffered from
depression as a result of the deterioration
of her post-concussion syndrome. One
expert commented that appellant was
malingering. During a 2007 hospital
admission, appellant was diagnosed with
severe major depression disorder, most
probably related to her work-related injury.
Appellant’s benefits were terminated in
August 2004. The Appeals Commission
considered her appeal based on the medical reports alone and concluded that her
ongoing depression symptoms were not
work-related. The reviewing judge found
the ultimate decision reasonable.
HELD: Appeal allowed. Inadequate
reasons were provided by respondent for
its decision to accept certain medical evidence over other evidence. It was possible
from the evidence before respondent to
find that appellant suffered from depression that was or was not work-related. The
decision lacked justification, transparency
and intelligibility.
Sharif v. Alberta (Appeals Commission for Alberta Workers’ Compensation), [2011] A.J. No. 206, Alta. C.A.,
per Picard, Costigan and McDonald
JJ.A., Mar. 4/11. Digest No. 3044-021
(Approx. 5 pp.)
