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
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,  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
Toronto Kosher Inc. v. Windward
Drive Holdings Inc.,  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,  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.)
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.,
 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,  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.,  O.J.
No. 3413, Ont. S.C.J., Newbould J.,
July 27/11. Digest No. 3116-021
(Approx. 9 pp.)
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-
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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