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Law TiMes • March 24, 2014 Page 23 www.lawtimesnews.com fences and lost his employment as teacher. In 2012, father was found not criminally respon- sible for charges of the and committing indecent act. Father brought application for access. Application dismissed. Access was le to discretion of children. Children had been traumatized by behaviour of father at and fol- lowing separation. Counselling had been necessary and helpful in assisting children to over- come many events. Father had not had any access or contact with children in over four years. Children were currently doing well. Father conceded physical access was not appropriate while he was confined in mental health facility. ere was no evidence as to benefit of other access from children's perspective. Stephens v. Stephens (Nov. 19, 2013, Ont. S.C.J., D.J. Gordon J., File No. Brantford FS-08-877) 235 A.C.W.S. (3d) 735. SUPPORT Wife did not apply for support until 23 years after separation Parties were married 1971, sepa- rated in 1990, and divorced in 1997. Husband, aged 64, had remarried and his new wife was disabled and unable to work. Husband earned $42,000 from pensions and WSIB, which would fall to $39,000 in 2014. Parties had two children, one of whom was disabled and lived with wife until his 2007 death, and other who lived with wife until 2003, then with husband and was now 24 and indepen- dent. Husband paid child sup- port for two children until 2007, despite one child living with him. Wife earned $15,744 from social assistance and rental income and was disabled, depressed and unable to work. Application by wife for interim spousal support of $831 per month. Application allowed in part. Wife's needs existed from before separation, yet she did not apply for sup- port until 23 years aer separa- tion and six years aer the son's death. Husband believed issue had been abandoned, incurred reasonable financial obligations to new wife and was declining in health and advancing in age. Marriage was long-term and wife was financially dependent, unable to support herself and reliant on support from taxpay- ers. Absent delay considerations, wife would be entitled to sup- port but, given exceptional de- lay, it would be unconscionable to slavishly adhere to Spousal Support Advisory Guidelines. Husband to pay interim support of $300 per month. Quackenbush v. Quackenbush (Dec. 9, 2013, Ont. S.C.J., R. MacKinnon J., File No. Pe- terborough FC-01-0495) 235 A.C.W.S. (3d) 768. Insurance LIABILITY INSURANCE Covered operations must have commenced on or after retroactive date Respondent insurers issued con- tractors' pollution liability insur- ance policy from November 1, 2009 to November 1, 2010. Ap- plicant insured argued that pur- pose of that policy was to protect it from claims arising out of pol- lution that occurred during that period. Respondents argued its purpose was to provide cover- age to applicant for pollution claims caused by its covered op- erations taking place during that period when such claims were made during period. In under- lying action, applicant was sued for damages related to pollution incident. Respondents denied coverage because claim related to operations performed by ap- plicant prior to retroactive date, which was November 1, 2009. Applicant sought payment from respondents for all defence costs incurred to date to defend un- derlying action and declaration that those insurers had ongo- ing duty to defend in that ac- tion. Application dismissed. For coverage to be triggered, cov- ered operations alleged to have caused pollution incident must have commenced on or aer retroactive date. Underlying ac- tion did not allege any covered operations that occurred aer retroactive date of November 1, 2009. Coverage was accordingly not triggered under policy. 1088437 Ontario Inc. v. GCAN Insurance Co. (Nov. 28, 2013, Ont. S.C.J., R. MacKinnon J., File No. Lindsay 45/13) 235 A.C.W.S. (3d) 798. Landlord and Tenant AGREEMENT FOR LEASE Conditions applicable to minor zoning variance in conflict with agreement to lease Landlord and tenant entered into agreement to lease in June 2008. Premises were to be used for "Spa/Fitness Centre". Land- lord warranted that premises would comply with zoning by- law. Agreement was conditional on tenant acquiring Spa/Fitness Centre license and building renovation permit within four months. Tenant paid $52,828.13 deposit. Premises could not be licensed for intended purpose due to zoning issue relating to massage services. Tenant treated agreement as at end, but land- lord refused to return deposit. Landlord obtained minor zon- ing variance subject to condi- tions in November 2008. Tenant brought action against landlord for return of deposit and ancil- lary damages. Action allowed. Landlord had been in breach of warranty at time agreement to lease was executed. Landlord had not been misled by phrase "Spa/Fitness Centre". ere was no ambiguity in this phrase. Plain and ordinary meaning of word "spa" included mas- sage services. In any event, par- ties were aware that intended use included massage services. Landlord had provided warran- ty based on belief that such use would be permitted. Tenant had not agreed to extend time for ob- taining license. Tenant had not waived condition or engaged in conduct subject to estoppel. Conditions applicable to minor zoning variance were in conflict with agreement to lease. Zhao v. N. Turk Investments Ltd. (Nov. 6, 2013, Ont. S.C.J., Lederman J., File No. CV-09- 375280) 235 A.C.W.S. (3d) 805. Real Property CO-OPERATIVES Respondent would likely end up homeless if evicted Respondent had been resident of applicant co-operative for 12 years, and applicant previ- ously voted to evict her be- cause it thought she had live- in caregiver. Respondent was Ontario Disability Support Program recipient with visual and mobility impairments and needed help with daily activi- ties. Following vote, applicant removed respondent's subsidy and raised her rent, and respon- dent stopped using caregiver. Respondent's spouse had since moved in with her and applied for membership as required, but her membership applica- tion was rejected without rea- sons given. Application by co- operative for writ of possession on basis respondent was cohab- iting with person not member of co-op and for non-payment of rent. Application dismissed. No evidence respondent be- haved offensively towards neighbours and complaints about her alleged live-in care- giver had been resolved. Board rejected respondent's spouse's application and used this to justify eviction. Board did not consider spousal relationship or membership application on its merits, and evidence sug- gested respondent's spouse was well-liked and would be a suit- able member. Board relied on prior complaints, which were out of scope, in judging spouse's suitability, denying application and applying for writ, which was unreasonable. Respondent would likely end up homeless if evicted and had paid all but $100 of her rent arrears. Superior View Housing Co-oper- ative Inc. v. Keefe (Dec. 6, 2013, Ont. S.C.J., H.M. Pierce R.S.J., File No. under Bay CV-13- 0298-00) 235 A.C.W.S. (3d) 833. ONTARIO CRIMINAL DECISIONS Assault AGGRAVATED ASSAULT Accused's movements while intentionally assaulting complainant caused gun to discharge Accused charged with attempt- ed murder, aggravated assault, discharging firearm with in- tent to endanger life, armed robbery, pointing firearm, knowingly possessing firearm without licence, possession of firearm while prohibited, and failing to comply with proba- tion condition not to possess firearm. It was admitted that both young offender and ac- cused were involved in alterca- tion that took place and that one of those two individuals shot complainant. Crown took position that only reasonable inference available on evidence was that accused was in posses- sion of gun that discharged and shot complainant during physi- cal altercation between accused and complainant aer accused had dragged complainant from his car. Defence conceded that accused hit complainant in head with metallic object, but argued that blow inflicted upon complainant's le temple could have been with metallic object or weapon other than gun. Ac- cused not guilty of attempted murder, discharge firearm with intent to endanger life, point firearm; accused guilty of ag- gravated assault, robbery while armed with firearm, possession of firearm without licence, pos- session of firearm while prohib- ited and failure to comply with probation order. Court found that Crown had proved that accused guilty of aggravated assault as principal, and it was not necessary to rely on party liability either by concessions made by defence, or alterna- tive analysis urged by Crown. Accused clearly intended to ap- ply force to complainant that he knew complainant did not consent to when accused hit complainant over head with firearm while complainant was seated in car, dragged him out of car and started punching him with one or both hands. During this assault, gun dis- charged, causing injuries that meet definition of wounding, maiming, disfiguring and en- dangering of complainant's life. Only reasonable inference was that accused's movements while he was intentionally assault- ing complainant caused gun to discharge. Alternatively, if court was wrong in its conclusion that accused was in possession of firearm that shot complain- ant, court reached conclusion that accused was liable as party to aggravated assault if young offender was shooter. Court found both that accused struck complainant with handgun and that he was in possession of it and discharged handgun when complainant was struck. Court was not convinced accused ever pointed handgun at complain- ant when he was hitting him (basis for pointing charge). R. v. Dawkins (Jun. 14, 2013, Ont. S.C.J., J. Wilson J., File No. CR13-70000371-00) 111 W.C.B. (2d) 74. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Trial judge linked accused's silence to finding that accused's evidence lacked credibility Accused appealed conviction for refusing to provide breath sample into approved screen- ing device. Officer believed that accused was texting with his smart phone and stopped ac- cused's vehicle, but he never saw cell phone in accused's hands. Officer saw nothing remarkable about accused's driving before he stopped him, but noticed odour of alcohol on accused when he approached vehicle. Officer testified that accused indicated that he understood breath demand, but refused to comply. Accused testified that vehicle had been used for bottle drive and that some of alcoholic content from bottles had spilled inside car and had not yet been cleaned up, leaving strong odour in vehicle. Accused testi- fied that officer questioned him in aggressive manner and that he kept silent when breath sam- ple demand was made because he felt intimidated and felt that he would not be treated fairly. Trial judge held that accused was not arbitrarily detained, but found breach of his s. 9 rights under Canadian Charter of Rights and Freedoms by police over-holding him where there were no indicia of impairment. Accused argued that trial judge erred by linking rejection of his evidence to his right to silence under Charter, particularly his silence regarding reason for in- terior of car smelling of alcohol. Accused argued that trial judge erred by finding that officer had reasonable and probable grounds to believe that he was texting while driving and by failing to find that initial stop was arbitrary. Appeal allowed, conviction and sentence vacat- ed, stay of proceedings entered. It was clear that trial judge linked accused's silence regard- ing smell of alcohol in vehicle to major finding that accused's ev- idence lacked credibility. Only two objectively discernible facts were that accused was in front seat of his car with his head il- luminated from below, and his head was pointed downward while at red light. ere was no evidence of bad or distracted driving or of communication device being used by accused, only appearance of such by of- ficer whose interest was height- ened to such behaviour. is was investigation that used initial stop on flimsy grounds to become immediately inves- tigation of drinking and driving offence for which there was not even hint of articulable cause. Stop that detained accused was done on perhaps slightly more than hunch but no more than guess plus assumed facts from subjectively mounted appear- ance. Initial stop breached ac- cused's s. 9 Charter rights. is was clear case warranting stay of proceedings. Allowing pro- cess to continue in any way, considering less serious nature of charge, would have been seen by informed public as unfair in circumstances. R. v. Mughal (Dec. 18, 2013, Ont. S.C.J., Howden J., File No. Barrie 13-026) 111 W.C.B. (2d) 59. LT caselaw

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