lant to replace hydro pole demolished by
appellant’s pickup truck.
Appeal from a small claims court decision awarding damages to respondent to
replace a hydro pole demolished by appellant’s pickup truck. The amount of damages had been agreed. The standard of
review was correctness. Appellant’s truck
was found by police in a ditch not far
from appellant’s residence. It appeared
that the driver of the truck had lost control and destroyed the hydro pole. Several
young kids were seen fleeing the vehicle.
There was blood on the passenger’s door,
the seat and the middle console. Appellant advised that she was in Brantford all
night and had left a baby sitter at her
residence. She had no idea who could
have taken her vehicle. There was no
damage to the locks of the truck or the
steering column. One of the sets of keys to
the truck had previously been lost.
HELD: Appeal allowed. Once it was
proved that a motor vehicle driven on a
highway caused damage, s. 193 of the
Highway Traffic Act (Ont.) put the onus
on the owner to prove that damage was
not caused by negligence or improper con-
duct on his or her part. It was open to the
judge to infer either in appellant’s case, if
he did not accept her evidence to the con-
trary. Appellant’s evidence was not entirely
uncorroborated. She did not appear to
have shed any blood, which confirmed that
she was telling the truth about the material
fact that she was not the driver. It also sup-
ported her credibility as a witness. The
evidence that appellant had not been driv-
ing and there was no party at her place was
accepted or admitted. In such a small com-
munity, the thief could have found or
taken the missing key. Given the cogency
of appellant’s evidence and the judge’s
omission to give any good reason for
rejecting it, the judge made a palpable and
overriding error in applying s. 193 of the
Act to the evidence and in his findings of
fact. The judgment was set aside.
result of taking the course, it made no
specific reference to negligence. Plaintiff
also stated that the waiver was not part of
the original contract. There was a genuine issue for trial regarding the application of the waiver. The matter was best
dealt with after developing a full factual
context at trial.
Borre v. St. Clair College of Applied Arts
and Technology,  O.J. No. 1410,
Ont. S.C.J., McDermid J., Mar. 28/11.
Digest No. 3048-018 (Approx. 7 pp.)
WAIVER – Summary judgment
based on waiver dismissed because it
was uncertain whether plaintiff had
waived right to recover for loss or injury
caused by defendant’s negligence.
Motion by defendant for summary judgment to dismiss plaintiff’s claim. Plaintiff
was a student registered in a motorcycle
training course offered by defendant college. She alleged that, while riding one of
the motorcycles provided by defendant, she
fell and injured her left elbow, left side,
lower back and both legs and feet. She
claimed $250,000 in damages based on
defendant’s negligence. Defendant, in addition to denying negligence, pleaded that
plaintiff waived any right to commence
proceedings by signing a waiver before participating in the course.
HELD: Motion dismissed. Although
the release was very broadly worded to
include any loss or injury incurred as a
on the specified date did not permit appel-
lant to treat the contract as discharged by
breach of that obligation.
TO YOUR PAID PRINT SUBSCRIPTION Add Free Online Access
Yes! I would like to subscribe to The Lawyers Weekly.
; 1 Year print (48 issues) for $270, plus tax
; 1 Year print + digital (48 issues) for $270, plus tax
; 1 Year digital only (48 issues) for $245, plus tax
CONDOMINIUMS – Court enforced
declaration requiring respondent to
remove vent for tankless water heater
from exterior wall and repair wall.
Application by a condominium corporation to enforce a declaration against
respondent unit owner. Applicant became
aware that respondent had installed a
tankless water heater which vents through
the exterior wall, a common element.
Respondent did not seek prior approval
from applicant’s board of directors. Applicant sought an order requiring respondent to remove the vent and pay for the
cost of restoring the wall to its original
condition. Respondent argued that applicant was selectively enforcing the declaration and that it would be unfair to
enforce it against her.
HELD: Application granted. There had
been a number of instances where breaches
of the declaration, including some similar
to the one at issue, had gone unaddressed
by applicant and its board. There had been
a degree of selective enforcement by applicant sufficient to give rise to a concern, but
it did not approach the sort of rampant
non-enforcement that had arisen in some
cases. Once registered, the declaration had
the force of law, at least as far as the unit
holders were concerned. There was an
interest, in the collective, in having the
declaration enforced, even if some trans-gressors had been allowed to violate it. The
collective’s interest in having the declaration enforced must prevail over the private
interest of respondent.
Peel Condominium Corp. No. 108 v.
Young,  O.J. No. 1203, Ont.
S.C.J., Gray J., Mar. 21/11. Digest No.
3048-019 (Approx. 6 pp.)
SALE OF LAND
________________________________________________________________________________________________ ; Home ; Business
City Province Postal Code
Phone Number Fax Number
Method of Payment
; Visa ; MasterCard ; AMEX ; Cheque enclosed
Credit Card Number Expiry Date
Card Holder Name Signature
For full subscription options, visit us online at: www.thelawyersweekly.ca
Mail your subscription order to: LexisNexis Canada Inc. 700–123 Commerce Valley Drive East, Markham, ON L3T 7W8
Fax to: 905-479-4082 or use our toll-free fax at 1-800-461-3275
Please allow 2-3 weeks for delivery of first issue. Make cheque payable to LexisNexis Canada.
Offer expires September 30, 2011. Reservation Code: 4463
AGREEMENT OF PURCHASE AND
SALE – Remediation clause in agree-
ment of purchase and sale was a war-
ranty and not a condition precedent.
Appeal from a judgment dismissing
appellant’s claim for the return of a deposit
and awarding respondent damages for
breach of an agreement of purchase and
sale. Appellant agreed to purchase a property from respondent. The closing was
postponed twice in order to allow respondent to remove a decommissioned oil tank
and to have soil remediation work completed. In the remediation clause, respondent agreed to provide appellant with a
municipal certificate by a specified date.
The certificate was not provided by that
date but was provided well before the closing date. When respondent refused to
agree to another postponement, appellant
refused to close. The trial judge found that
the remediation clause was a warranty
rather than a true condition precedent.
Thus, the failure to produce the certificate
ENTITLEMENT – Appellate court
restored decision denying respondent
increased benefits based on loss of prob-
able earning capacity as an apprentice.
Appeal from an order quashing a decision of the Appeal Commission of appellant board. Respondent claimant was an
apprentice ironworker who suffered a
compensable injury that resulted in
permanent disability. He sought and
received a compensation award from the
board’s accident fund. The board determined his wage loss benefits based on net
average earnings prior to the accident.
Concurrently, the board rejected the
claimant’s application for increased benefits based on loss of probable earning capacity as an apprentice. On review, the
board upheld the denial on the basis that
the claimant was not an apprentice in a
trade or occupation within the scope of
subs. 45( 3) of the Workers’ Compensation Act (WCA) (Man.). The board’s decision was upheld by the Appeal Commission. On judicial review, the court held
that the definition of a “worker” under the
WCA included persons working under
contracts of apprenticeship. The decisions
of the board and the Appeal Commission
were quashed and the matter was remitted
to the board for reconsideration.
HELD: Appeal allowed. The policy of
the board in dealing with apprentices was
not ultra vires the board. The board’s
interpretation of the policy in denying the
claimant enhanced benefits was not
unreasonable. It was open to the board to
conclude that the combined effect of the
policy and the Apprenticeship and
Trades Qualifications Act (Man.)
required a registered apprenticeship
agreement for eligibility for compensation under sub. 45( 3) of the WCA. The
board’s decision did not result from an
unreasonable interpretation of the evidence that the claimant intended to enter
into a registered apprenticeship agreement in the future.
Sciberras v. Manitoba (Workers
Compensation Board),  M.J. No.
109, Man. C.A., per Freedman J.A.
(Hamilton and Chartier JJ.A. concurring), Apr. 1/11. Digest No. 3048-021
(Approx. 27 pp.)