GARNISHMENT –Court ordered
release of $2,300 out of moneys being
held by sheriff as a result of a garnish-
ment.
Application by a bank for the release
of $2,839 from funds of $18,361 being
held by the sheriff as a result of a garnishment. Defendant KT submitted that
the funds should not be released as the
sum was derived as a result of his work as
a freelance translator and interpreter, the
sum was wages and in accordance with
the Wages Act (Ont.) 80 per cent of a
person’s wages were exempt from seizure
or garnishment. Alternatively, he argued
the amount should be varied to 20 per
cent in accordance with Rule 60.08( 16)
of the Rules of Civil Procedure (Ont.).
The bank submitted that this type of
income was not covered by the Act.
HELD: Application allowed. The
sheriff was to retain $2,300 for the benefit of execution creditors. The balance
was to be paid to KT. This income could
not be properly characterized as “wages”
as defined by the Act. The amount to be
released was adjusted because of the time
elapsed for the motion to be heard, the
nature of KT’s freelance work and
amount of money derived from it and
KT’s personal financial circumstances.
The bank obtained an order for payment
on its debt by defendants in 2005 and KT
had made no payments on the amount
owing. The sheriff was ordered to release
Royal Bank of Canada v. Opulence
Boutique Corp., [2011] O.J. No. 3743,
Ont. S.C.J., Fragomeni J., Aug. 17/11.
Digest No. 3119-011 (Approx. 6 pp.)
EVIDENCE (CIVIL)
ADMISSIBILITY – Trial judge erred
in refusing to permit defendants to call
additional witnesses to challenge plain-
tiff ’s credibility.
Appeal from the award of damages for
personal injuries arising from a motor
vehicle accident. Plaintiff alleged that as a
result of the accident she suffered multiple
injuries including chronic pain in her
upper neck and back. The trial, which was
scheduled for five days, did not complete
in the allotted time and was adjourned for
five months. During the hiatus, defendants undertook surveillance of plaintiff
while on a weekend trip to the mainland
and while vacationing in Mexico. When
the trial resumed, defendants sought to
introduce a videotape into evidence and to
call 10 witnesses who had not been identified on the witness list. Plaintiff objected
because of the late disclosure. The trial
judge ruled that the surveillance videos
and the evidence of the additional witnesses were inadmissible. She awarded
total damages to plaintiff of $525,415.
HELD: Appeal allowed. The trial judge
did not err in refusing to admit the video
into evidence given the late disclosure.
However, in refusing to allow defendants
to call their additional witnesses the judge
unfairly restricted their ability to have the
matter determined on its merits and
wrongly focused on speedy completion of
the trial. The credibility of plaintiff was a
critical factor in the judge’s assessment of
quantum and the evidence of the observ-
ers was intended to directly address plain-
tiff’s credibility. The judge’s refusal to per-
mit defendants to adduce evidence to
challenge plaintiff’s physical abilities at
the date of the trial was unfair. A new trial
was ordered.
FAMILY LAW
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CHILD SUPPORT – Court allowed
application by mother to require
father to start paying child support in
accordance with Child Support Guidelines (Ont.).
Application by the mother to vary an
order to address child support arrears and
prospective annual adjustment of child
support. The order provided for child support of $390 per month starting Sept. 1,
2009 and provided that when respondent
father obtained full time employment he
would notify applicant mother and commence paying child support in accordance
with the Child Support Guidelines
(Ont.). The order was silent respecting
future adjustments to child support after
the father obtained full time employment.
HELD: Application granted. The father
had a positive obligation to pay child support in accordance with his income. The
intention of the order was to ensure that
the father would resume paying higher
support when he obtained remunerative
employment once again, which happened
in December 2010. Support should have
been payable from that time. The father
alleged that he faced financial hardship if
required to pay arrears. That issue was not
raised in the materials on the motion and
the court declined to rule on it. Commencing Aug. 1, 2011, the father was to pay
Guidelines child support on the basis of
his current employment income and continue paying that amount up to and including May 1, 2013. At that time, the father
was to provide a copy of his income tax
return annually to the mother. Guidelines
child support would then be adjusted
annually. Child support arrears were to be
calculated on an aggregate basis. The parties were to establish a payment schedule
to retire that indebtedness.
McNeil v. Huppe, [2011] O.J. No.
3811, Ont. S.C.J., Corbett J., Aug. 22/11.
Digest No. 3119-013 (Approx. 4 pp.)
were the principals of applicant corporations. They decided to enter into three
franchise arrangements with respondents
and incorporated the corporate applicants
for that purpose. The corporations
acquired franchise rights for Lettuce Eatery restaurants at three locations. The
businesses did not perform financially at
the levels expected. Eventually, notices of
rescission were delivered by applicants
under the Act on the basis of a failure to
comply with the disclosure requirements
of s. 5 of the Act. Respondents argued that
the application was premature and that
applicants should have given the franchises more time to develop.
HELD: Application dismissed.
Respondents’ motion was granted on
terms. There were disputed facts which
were material to the resolution of the parties’ claims and defences and some form of
trial was required. It would be necessary to
hear viva voce evidence from JC and MC,
the principal of respondents, in order to
fairly and justly resolve the issues. This
was not a summary judgment motion. Not
all possible evidence was advanced on the
application. A trial was ordered within the
context of the application as a whole. It
was to be a hybrid proceeding, making use
of the affidavits and cross-examination
transcripts filed to date, supplemented
with in court testimony in the form of brief
examinations in chief on the disputed
issues followed by brief cross-examination
on those issues.
Lechuga 1 Ltd. v. Lettuce Eatery
Development Inc., [2011] O.J. No. 3723,
Ont. S.C.J., Penny J., Aug. 16/11. Digest
No. 3119-014 (Approx. 6 pp.)
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CANCELLATION OF AGREEMENT – Court decided that trial was
necessary to determine whether applicants were justified in rescinding franchise agreements.
Application for a declaration that franchise agreements between the parties
were rescinded in accordance with the
Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.) and judgment for
$1,152,282 against respondents. Motion
by respondents for an order that the application be converted into a trial. JC and EP
INTERIM INJUNCTIONS – Plaintiff
granted interim injunction restraining
defendants from diverting business
from plaintiff’s customers.
Application for an interim injunction
pending cross-examinations and the hearing for an interlocutory injunction. Plaintiff was a freight shipping company.
Defendants K and Z were former truck
drivers for plaintiff operating pursuant to
written contractor agreements entered
into on behalf of defendant numbered
companies. The agreements provided that
for two years after termination they would
not divert business from plaintiff. Both K
and Z terminated their contracts with
plaintiff without notice. In return for an
adjournment of a hearing for an injunction the parties entered into a consent
order that specifically precluded K and Z
from soliciting or diverting business from
any of the current customers of plaintiff,
including customer MSM. Plaintiff
obtained information that K and Z were
breaching the order. K and his company
were found in contempt.
HELD: Application granted. Plaintiff’s
application was not vexatious or frivolous.
Defendants were free to compete against
plaintiff. An interim injunction would only
prevent them from doing so with current
customers of plaintiff. There was evidence
that K and his company was shipping
freight directly for MSM. There was clearly
irreparable harm to plaintiff and the balance of convenience favoured granting the
interim injunction. Defendants were
enjoined from diverting any business
plaintiff enjoyed with its customers prior
to termination of their contracts with
plaintiff and for a period of two years after.
