Law Times

lAw Times • April 18, 2011 OLD AGE SECURITY Reasonable for Minister to determine no administrative error had been made When applicant applied for benefi ts applicant described marital status as being di- vorced. Applicant took up residence with common law partner. Minister determined applicant received benefi ts as if applicant were divorced. Min- ister determined no adminis- trative error was committed when overpayment of Old Age Security benefi ts and Guaran- teed Income Supplements was claimed from applicant. Appli- cation for judicial review was dismissed. It was reasonable for Minister to determine no administrative error was made even though no one enquired about marital status applicant reported to Canada Revenue Agency. Applicant was required to inform Minister of marital status and any change in status which applicant failed to do. It was reasonable for Minister to deny applicant remission of overpayment. Barr197 A.C.W.S. (3d) 1049(11 pp.). ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE No evidentiary basis for finding that accused confused about reliability of second device as result of malfunction of first device Accused appealed his convic- tion on charge of refusing to comply with demand to pro- vide breath sample for analysis by approved screening device. Offi cers responded to noise complaint when accused pulled into driveway in front of them and quickly reversed. Offi cer smelled alcohol on accused's breath and he replied that he had been drinking when asked. Offi cer made demand that ac- cused use roadside screening device. Offi cer tested machine but forgot to check whether it registered zero before passing it to accused who then accused offi cer of being drunk. Offi cer looked at device and saw it reg- istered .019 milligrams of alco- hol per 100 millilitres of blood and assumed device was faulty. When offi cer brought accused new device accused initially refused to give sample, gave sample which did not register on device and then refused to give sample again. Accused became very argumentative before being arrested. Appeal dismissed. Evidence supported trial judge's conclusion that there was no evidentiary basis for fi nding that accused was confused about reliability of second device as result of mal- function of fi rst device. For trial judge to have considered whether there was reasonable doubt that mouthpiece was ob- structed, in complete absence of any evidence to that eff ect, would have been nothing more than speculation. Trial judge found that second device was immediately available and made operational within three minutes and that second sam- pling attempt was undertaken forthwith and that accused's s. 10(b) rights were not trig- gered. Trial judge made no er- ror of fact or law in coming to his conclusion that statutory requirements had been met. R. v. Miller (Feb. 10, 2011, Ont. S.C.J., Fregeau J., File No. CR-10-0016-AP) 92 W.C.B. (2d) 730 (11 pp.). Murder ELEMENTS OF OFFENCE Trial judge did not err in instructing jury on s. 229(c) of Criminal Code (Can.) Accused charged with second degree murder. Accused alleged to have shot deceased in course of home invasion robbery. Po- sition of defence was that gun accidentally discharged when accused used it to strike anoth- er man in the face. Trial judge instructed jury that they could convict accused of murder pur- suant to s. 229(c) of Criminal Code (Can.) even if accused did not intend to kill or harm deceased provided he commit- ted unlawful act he knew was likely to cause someone's death. Accused convicted. Appeal dis- missed. Section 229(c) was constitutionally suffi cient and did not off end minimum mens rea requirement for murder. Section 229(c) requires proof of intent to pursue unlawful object that is indictable off ence with full mens rea and subjec- tive foresight of death which constitute proper substitute for intent to kill. Unlawful object must be something other than death or bodily harm to victim and accused must further com- mit dangerous act that is dis- tinct from unlawful object and results in death. Trial judge did not err in instructing jury on s. 229(c) in this case. Accused was carrying out unlawful ob- ject of robbery and committed dangerous act of using hand- gun as a club. Suffi cient evi- dentiary basis existed for jury to fi nd that accused had requi- site mens rea. R. v. Shand (Jan. 7, 2011, Ont. C.A., Feldman, Rouleau and Watt JJ.A., File No. C47483) ) 92 W.C.B. (2d) 737 (69 pp.). Sentence MURDER Even if gun discharged accidentally, sentence was fit Accused convicted of second degree murder. Accused took part in home invasion robbery of drug dealer. Accused dis- charged gun killing deceased in course of robbery. Some Crown witnesses testifi ed that accused appeared to fi re gun intentionally. Position of de- fence was that gun discharged accidentally when accused used it to strike one of the victims of the robbery. Accused convicted and sentenced to life imprison- ment with no parole eligibility CASELAW for 15 years. Appeal dismissed. Even if gun discharged acciden- tally sentence was fi t. Accused had long criminal record and planned home invasion rob- bery with loaded fi rearm. Ac- cused fl ed scene leaving victim to bleed to death and expressed no remorse. R. v. Shand (Jan. 7, 2011, Ont. C.A., Feldman, Rouleau and Watt JJ.A., File No. C47483) ) 92 W.C.B. (2d) 737 (69 pp.). ONTARIO CIVIL CASES Compensation For Victims Of Crime ELIGIBILITY Board did not err in admitting hearsay evidence Appeal by applicant from de- cision of board denying appli- cant's claim for compensation. Applicant experienced grievous beating at hands of several as- sailants. Board held that appli- cant entered hotel room where assault occurred for purpose of selling drugs, and thereby contributed to his own inju- ries by knowingly and signifi - cantly participating in illegal drug-related activities. Appeal dismissed. Board did not err in admitting hearsay evidence. Th ere was ample circumstan- tial evidence before board that supported reliability of hearsay evidence. Th ere was no breach of procedural fairness. Board committed no error of law. Tetu v. Ontario (Criminal Inju- ries Compensation Board) (Feb. 2, 2011, Ont. S.C.J. (Div. Ct.), Cusinato, Aston and Heeney JJ., File No. 10-DC-1582) 197 A.C.W.S. (3d) 866 (4 pp.). Equity ESTOPPEL Cause of flooding on plaintiffs' property was not fundamental to decision of committee or board Motion by defendants for stay of proceedings on ground of issue estoppel. Defendants built gazebo on their property. Plaintiff claimed that it con- stituted nuisance because it caused fl ooding on their prop- erty. Construction of gazebo was approved by committee of adjustment, which allowed minor variance. Defendants claimed that that decision rejected plaintiff s' complain- ant about fl ooding. Decision by committee was confi rmed by board. Motion dismissed. Plaintiff s were permitted to pursue their claim. Cause of fl ooding on plaintiff s' property was not fundamental to deci- sion of committee or board. Reasons of committee did not reveal that alleged fl ooding was considered. Jain v. Valani (Feb. 22, 2011, Ont. S.C.J., Strathy J., File No. CV-10-409007) 197 A.C.W.S. (3d) 893 (9 pp.). Judgments And Orders SETTING ASIDE Abuse of process to permit second action to stand www.lawtimesnews.com Starting from $62.50 per month Motion by defendant for order setting aside default judgment obtained by plaintiff . Plain- tiff 's fi rst action was dismissed for delay. Plaintiff commenced second action when fi rst ac- tion was still active. Plaintiff obtained default judgment in second action in 2008 for $61,500. Defendant claimed that he learned of default judg- ment in 2010 when he ap- plied for line of credit. Motion granted. Circumstances giving rise to default were not ad- equately explained. Defendant failed to present arguable case on its merits. However, com- mencement of second action by plaintiff constituted abuse of process. It was abuse of pro- cess to permit second action to stand. Bricks and More Bricks v. Con- ran (Feb. 11, 2011, Ont. S.C.J., Himel J., File No. 07-CV- 345155SR) 197 A.C.W.S. (3d) 1005 (5 pp.). Professions BARRISTERS AND SOLICITORS Defendant obtained mortgage financing without plaintiff 's consent, and placed title in his name Action by plaintiff for money allegedly owed to her by defen- dant. Defendant was licensed to practice law in Ontario. De- fendant and plaintiff were in- volved in intimate relationship. Defendant encouraged plain- tiff to invest in real estate. With defendant acting as her solici- PAGE 19 tor, plaintiff invested in sev- eral properties. Action allowed. Defendant failed miserably in his duties to plaintiff as her solicitor. Defendant obtained mortgage fi nancing without plaintiff 's consent, and placed title in his name. Plaintiff in- curred additional expenses as result of defendant's conduct in failing to follow plaintiff 's instructions. Achampong v. Kwaw (Jan. 27, 2011, Ont. S.C.J., Edwards J., File No. 07-82448) 197 A.C.W.S. (3d) 1033 (9 pp.). Torts LIBEL AND SLANDER Important that officials be free to speak candidly Appeal by plaintiff from deci- sion dismissing his action for damages for defamation. Ap- peal dismissed. Th ere was no basis on which to interfere with trial judge's fi nding that e-mail sent by defendant was sent on occasion of qualifi ed privilege and that privilege was not lost in circumstances. Defendants were acting in public interest, within context of confi dential regulatory process. It was im- portant that offi cials be free to speak candidly. Comment was neither malicious nor used to cause plaintiff embarrass- ment. Blumas v. Institute of Chartered Accountants of Ontario (Jan. 31, 2011, Ont. C.A., Blair, Rouleau and Epstein JJ.A., File No. C51638) 197 A.C.W.S. (3d) 1060 (3 pp.). When More is Too Much Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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