The Lawyers Weekly - September 2, 2011

denied on the basis that she had only missed one day of work. She sued defendant for breach of contract for failure to pay income replacement benefits. That action had not reached trial. In 2009 she wrote to defendant to apply for non-earner benefits. When they were denied she instituted another action.

HELD: Motion granted. The action was dismissed. Subsection 36(1) of the Statutory Accident Benefits Schedule (Ont.) provides that only one type of benefit may be paid to a person at a time and subs. 36( 2) required the insured person to elect the type of benefit. Plaintiff’s position was that she was entitled to claim, but not receive, both types of benefit. Plaintiff was employed at the time of the accident. She qualified for income replacement benefits. Therefore she did not qualify for non-earner benefits. A person could not qualify for both.

Galdamez v. Allstate Insurance Co. of
Canada, [2011] O.J. No. 3501, Ont.
S.C.J., Ramsay J., July 28/11. Digest No.
3116-016 (Approx. 4 pp.)

access route had always been provided and had remained open and uninterrupted over all nine years of the lease to date. The option to purchase was only triggered when access was denied, which it had not been. The application for equitable set-off was dismissed. Respondent was not involved in the alleged breach of the lease and the action was commenced before it acquired the property. In accepting an assignment of the lease, respondent did not assume joint liability for any claims predating the assignment. Respondent was not liable for the judgment against T and 126.

Toronto Kosher Inc. v. Windward
Drive Holdings Inc., [2011] O.J. No.
3461, Ont. S.C.J., Belobaba J., July 27/11.
Digest No. 3116-019 (Approx. 14 pp.)

able that students would jaywalk in the area. Appellant was found negligent because the judge considered her to be driving too fast for the circumstances. It was open to the judge to find that appellant did not meet the standard of care required of a driver in the circumstances.

Walter v. Plummer, [2011] B.C.J. No.
1468, B.C.C.A., per Frankel J.A. (Prowse
and Neilson JJ.A. concurring), Aug. 3/11.
Digest No. 3116-020 (Approx. 11 pp.)
REAL PROPERTY
NEGLIGENCE

UNIDENTIFIED MOTORIST
COVERAGE – No independent witness
or physical evidence to corroborate
plaintiff’s contention that he was
involved in a motor vehicle accident
with unidentified motor vehicle.

Motion by defendants for summary judgment to dismiss the action. Plaintiff alleged that he was driving a tractor-trailer northbound on an interstate in Kentucky in 2007 when he was cut off by an unidentified motor vehicle. He was found unconscious by the police and taken to the hospital. He suffered severe injuries including a fractured neck. A detective attended at the scene of the accident and made a report determining that this was a single car motor vehicle accident that was caused by plaintiff being inattentive or asleep while driving. Plaintiff’s claim was pursuant to unidentified motorist coverage, which was available if the claimant’s own evidence was corroborated by other material evidence, defined as independent witness evidence or physical evidence.

HELD: Motion granted. There was no independent witness. There was no contact between plaintiff’s vehicle and any other vehicle. There was therefore no physical evidence indicating the involvement of an unidentified vehicle. The detective saw no sign of braking or skid marks. There was nothing to corroborate plaintiff’s evidence. A trial was not necessary.

Moein-Ziaie v. Axa Insurance Inc.,
[2011] O.J. No. 3505, Ont. S.C.J., Pepall
J., July 29/11. Digest No. 3116-017
(Approx. 6 pp.)

tomers who had purchased vehicles from the dealership he managed. In addition, appellant allegedly defrauded banks and individuals of approximately $35,000 CDN by entering into loan agreements that he did not intend to pay and using collateral that he did not own. The records of the case identified the injured parties, the false leasing contracts, the vehicles and the customers involved in the purchase and also included one witness’ identification of appellant as the person involved in the fraud. The extradition judge found that the evidence was sufficient to justify appellant’s committal. Appellant argued that there was no evidence in either of the records of the case that he had committed fraud.

HELD: Appeal and application dismissed. The available evidence certified in the records of the case was sufficient to justify appellant’s committal as it included summaries of the evidence and particulars of 10 specific transactions of the alleged fraud. The summaries were sourced to the testimony of named witnesses and specific evidence. Read as a whole, there was evidence from which appellant’s identity as the perpetrator could be inferred.

Hungary v. Toth, [2011] O.J. No.
3526, Ont. C.A., per Karakatsanis J.A.
(Laskin and Rosenberg JJ.A. concur-
ring), July 26/11. Digest No. 3116-018
(Approx. 8 pp.)
LANDLORD & TENANT
APPORTIONMENT OF LIABILITY
– Appellate court upheld finding that
appellant was 40 per cent liable for
motor vehicle accident.

Appeal from a decision that appellant was 40 per cent liable for a motor vehicle accident. Respondent was jaywalking when the accident took place. After respondent crossed three traffic lanes and stepped out from in front of a large truck that had stopped for a red light, appellant struck him with her motorcycle. Appellant had been travelling in the lane to the right of the truck. Respondent did not check to see if the right lane was clear when he stepped out. Appellant could not see in front of the truck and first saw respondent when he walked into the path of her motorcycle. She attempted to brake but was unable to avoid hitting him. The accident took place in the vicinity of the high school attended by respondent and the middle school that employed appellant. The trial judge found an elevated degree of care was required from appellant when driving in the vicinity of schools where no crosswalk was provided and students frequently jaywalked. The judge found her negligent in passing the stationary truck in an area known to be frequented by jaywalking students at 40 kph.

HELD: Appeal dismissed. It was open
to the judge to find it reasonably foresee-
CERTIFICATE OF PENDING LITI-
GATION – Certificate of pending litiga-
tion issued against property pending
determination of whether the parties
had a valid asset purchase agreement.

Application for a certificate of pending litigation. The parties signed a Letter of Intent towards applicant’s purchase of a hotel property operated by respondent. The Letter of Intent provided that applicant had an interest in negotiating the terms of an agreement of purchase and sale with respondent. It provided that it only represented an expression of interest and did not create a legally binding agreement. It contained a clause that after acceptance of the Letter of Intent the parties would proceed in good faith to negotiate and finalize the terms of the agreement. Applicant claimed the parties had agreed to the terms of an asset purchase agreement and awaited the formalities of signing execution copies. Applicant claimed that respondent reneged when it decided to put the property on the market to try to get a better price than it had agreed to sell to applicant. Respondent claimed no written agreement was reached or executed.

HELD: Application allowed. There was a triable issue as to whether the parties had reached a final agreement. It could not be said that there was no triable issue with respect to specific performance. A certificate of pending litigation was issued against the property owned by respondent.

Carttera Management Inc. v. Palm
Holdings Canada Inc., [2011] O.J.
No. 3413, Ont. S.C.J., Newbould J.,
July 27/11. Digest No. 3116-021
(Approx. 9 pp.)
Classifieds
INTERNATIONAL LAW
EXTRADITION – The available evi-
dence in the records of the case suffi-
cient to justify appellant’s commital.

Appeal from the extradition judge’s order of committal and application for judicial review of the minister’s surrender order. Appellant had been the manager of a car dealership in Hungary. He was wanted in Hungary for prosecution for fraud over $5,000. He allegedly defrauded banks of $49,000 CDN by engaging in a fraudulent scheme in which he submitted false car leasing agreements. Appellant prepared and submitted the false leasing contracts using the information of cus-

LANDLORD-TENANT RELATION-
SHIP – Successor landlord not liable for
judgment obtained by tenant against
previous landlord. Tenant could not set-
off amounts owing against rent.

Application by a commercial tenant for declaration that a successor landlord was bound by a judgment against its predecessor; that the tenant was entitled to set-off judgment against its rent; that it was also entitled to a stand-alone judgment against successor landlord; and that the sale of the property should be set aside as a fraudulent conveyance. Applicant was a retail butcher operating out of leased premises owned by T via a numbered company 126. The tenant entered into a five-year lease with 126 in May 2002, which was renewed for a further five years to 2012. It required a delivery entrance at the rear. Applicant had used the vacant lot next door to access its delivery entrance for the past nine years. The vacant lot was also owned by T through another numbered company, 140. The original offer to lease included a provision requiring 126 to enter into an agreement with 140 providing for access across the vacant lot and under certain conditions giving applicant an option to purchase it. To protect that right of way, applicant registered a notice of lease on title to the vacant lot in 2005. It deleted the notice from title in April 2007 to enable 140 to mortgage the property. Instead, 140 sold the vacant lot to JR for $438,000. Applicant sued T and 126 for breach of the lease and obtained a default judgment for $409,874. The property was later purchased by respondent in December 2008.

HELD: Application dismissed. Legal set-off was not available because the mutuality requirement had not been satisfied. The lease was assigned. Even if 126 breached the right of way clause by failing to obtain a written access agreement, applicant acquiesced to and accepted the breach and did so for years. The required

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