Law Times

Law Times • OcTOber 18, 2010 it received cover notes with wording to eff ect cargo policy did not provide on site cover- age. Plaintiff was contributorily negligent. Plaintiff 's fault was apportioned at 33.3%. CIA Inspection Inc. v. Dan Law- rie Insurance Brokers (Aug. 4, 2010, Ont. S.C.J., Whitten J., File No. CV-04-014315-00) 191 A.C.W.S. (3d) 1342 (34 pp.).d) 312 was affi rmed. 191 A.C.W.S. (3d) 727 (25 pp.). Limitations CONTRACT Claim was dismissed as being out of time Claim was for snow removal services rendered by plaintiff to defendant that were not paid for. Services were completed in 2007 and claim was issued in 2010. Invoices were net 30 days which meant all invoices ex- cept those dated December 31, 2007, were due more than two years before claim was issued. It was not running account. Each invoice stood on own. Claim was within time with respect to four invoices dated December 31, 2007. Claim was amended to request sum of $3,752. De- fendant's claim was dismissed as being out of time. 1385833 Ontario Ltd. v. Comp- ton Management Inc. (Aug. 11, 2010, Ont. S.C.J. (Sm. Cl. Ct.), Th omson J., File No. SC- 10-095835-00) 191 A.C.W.S. (3d) 1290 (3 pp.). Professions BARRISTERS AND SOLICITORS Documents in hands of law firm not protected by privilege by reason of joint retainer by estate trustee and beneficiaries of estate Testator established holding company in Cayman Islands from which no income was reported to CRA. Each of tes- tator's children held fi ve % of company and failed to report income as well. Before death testator made will naming chil- dren as benefi ciaries of estate and society as residual ben- efi ciary. Certifi cate of appoint- ment was issued naming testa- tor's son W.S. as estate trustee. W.S. retained law fi rm which other children of testator also used. W.S. voluntarily disclosed to CRA income of deceased and children from company. Legal costs associated with disclosure were paid from estate moneys. Society brought motion for di- rections seeking order requiring W.S. to produce documents relating to voluntary disclosure of unreported income to CRA. Society sought documents to determine whether actions taken by W.S. and fees paid by estate to law fi rm were reason- able. W.S. objected on basis that documents were privileged and confi dential communications. Motion allowed. Privilege was lost as between children and W.S. as estate trustee having agreed to joint retainer of law fi rm. W.S. was entitled to all documentation law fi rm had in connection with voluntary disclosure. In turn benefi cia- ries of estate including society were entitled to all documenta- tion W.S. had. As well fairness dictated that society be entitled to see what work was done and how much had been charged for legal services performed by law fi rm. Eff ect of paying legal fees from estate moneys was to reduce society's distribution from estate. Sawdon Estate v. Watch Tower Bible and Tract Society of Cana- da (July 21, 2010, Ont. S.C.J., Ricchetti J., File No. CV-09- 04404-00) 191 A.C.W.S. (3d) 1357 (19 pp.). Wills And Estates ESTATE ADMINISTRATION Motion judge did not err in concluding that it was not "plain and obvious" that none of arguments could possibly operate to toll limitation period Motion judge refused to strike action against estate of P.B. on basis that it was statute-barred in light of limitation period for claims against estate as provided for in s. 38(3) of Trustee Act (Ont.) ("TA"). Particular issue addressed was: do provisions of Limitations Act, 2002 (Ont.), which eliminated or toll limi- tation period for causes of ac- tion arising from sexual assault or incest, apply in priority to two-year limitation period on actions against estate. Motion judge determined that on plead- ings alone there was no way she could conclude that it was "plain and obvious" that none of various arguments advanced could possibly operate to toll limitation period in s. 38(3) of TA. Motions judge found that these important issues needed to be addressed at trial. No good reason to doubt correct- ness of motion judge's decision. Leave to appeal denied. Lewis v. Bangma Estate (June 30, 2010, Ont. S.C.J., Beaudoin J., File No. 08-0954) Leave to ap- peal from 185 A.C.W.S. (3d) 619 was refused. 191 A.C.W.S. (3d) 1104 (16 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Accused's privacy interest in urine removed from core of personal privacy Accused convicted of impaired and dangerous driving off ences. Offi cer seizing sample of ac- cused's urine from receptacle in hospital. Badly injured accused agreeing to offi cer's request to take urine sample. Urine sample yielding evidence of signifi cant impairment. Crown conceding warrantless seizure breached accused's rights. Trial judge ad- mitting evidence. Trial judge fi nding evidence important and reliable and search unintrusive. Appeal from convictions dis- missed. Offi cer's reliance on obviously ineff ective consent of hospitalized accused renders CASELAW Charter-infringing state con- duct more serious. Impact on protected interests of accused not serious as accused's privacy interest in urine removed from core of personal privacy. So- ciety's interest in adjudication on merits favours inclusion of highly reliable, probative evi- dence of serious charges. R. v. Ramage (July 9, 2010, Ont. C.A., Doherty, Laskin and Goudge JJ.A., File No. C48219) Decision at 76 W.C.B. (2d) 205 affi rmed. 89 W.C.B. (2d) 473 (35 pp.). Evidence WITNESSES Trial judge did not err in permitting cross-examination Accused charged with off ences arising from brutal home inva- sion robberies. Alleged accom- plice gave police statement im- plicating accused in robberies. Trial judge ruling that accom- plice could be cross-examined by Crown on statement pursuant to s. 9(2) of Canada Evidence Act. Trial judge later ruled state- ment inadmissible pursuant to K.G.B. due to absence of oath, the use of leading questions, lack of video recording and violation of right to counsel. Accused convicted. Appeal allowed on other grounds. Trial judge did not err in permitting cross-ex- amination. Test for admissibil- ity does not apply to question of whether cross-examination should be permitted on prior inconsistent statement. R. v. Tran (June 30, 2010, Ont. C.A., Sharpe, Simmons and Epstein JJ.A., File No. C45557; C45595; C50437) 89 W.C.B. (2d) 494 (41 pp.). Extradition And Fugitive Offenders EVIDENCE Statements made in Pakistan excluded but statements made in Canada admitted Accused sought for extradition to United States for terrorism off ences. Accused arrested in Pakistan at behest of United States for intelligence gathering. United States paid $500,000 bounty for accused's arrest. Ac- cused held for 14 months with- out charge and subject to physi- cal abuse. Consular access for accused was delayed for three months. Accused made incul- patory statements to FBI while held in Pakistan. Upon accused's repatriation he made inculpa- tory statements to Canadian offi cials. Accused's statements made in Pakistan excluded but statements made in Canada ad- mitted. Statements in Pakistan were made in hostile and op- pressive environment without access to counsel. Statements were manifestly unreliable and gathered in abusive manner. Canadian statements were not derivative confessions. Accused told by Canadian offi cials to disregard Pakistan statements before he made further inculpa- tory admissions. Untied States of America v. Khadr (Aug. 4, 2010, Ont. S.C.J., Speyer J., File No. EX0037/05) 89 W.C.B. (2d) 548 (62 pp.). www.lawtimesnews.com Practice, Process, and Procedure MULTIPLE CONVICTIONS Res judicata principle barring multiple convictions does not apply to dangerous driving and impaired driving causing death or bodily harm Dangerous driving and im- paired driving causing death. Accused convicted of im- paired and dangerous driving off ences after collision result- ing in one fatality and further serious injuries. Crown lead- ing evidence of high blood alcohol levels of accused, ob- servations of accused drinking before accident, other indicia accused impaired. Accused's vehicle crossing four lanes of traffi c to cause three vehicle collision. Trial judge entering convictions on four counts, re- fusing to stay either impaired or dangerous driving charges. Appeal from convictions dis- missed. Res judicata principle barring multiple convictions does not apply to dangerous driving and impaired driving causing death or bodily harm. Distinction between off ences based on manner in which one drives and off ences based on impairment of one's capac- ity to drive R. v. Ramage (July 9, 2010, Ont. C.A., Doherty, Laskin and Goudge JJ.A., File No. C48219) Decision at 76 W.C.B. (2d) 205 affi rmed. 89 W.C.B. (2d) 473 (35 pp.). Sentence MANSLAUGHTER Accused sentenced to 12 years' incarceration for manslaughter and aggravated assault Two accused sentenced to 12 years' incarceration before cred- it for time served after being convicted of manslaughter and aggravated assault of four other victims. Both accused ended up in gunfi ght in busy city street wherein young woman was killed and four other innocent bystanders were wounded. Nei- ther of accused fi red bullet that killed victim but jury found that there was suffi cient causal relationship between accused and her death to sustain man- slaughter convictions. Location where gunfi ght took place was teeming with thousands of Box- ing Day shoppers. First accused fi red at least seven shots, one of which hit one and perhaps sec- ond, of aggravated assault vic- tims, while second accused may have fi red only one shot, none of which hit anybody. Second accused would have fi red more shots but his gun jammed. Both accused were 18-years old at time of off ence and had sig- nifi cant youth records. Both ac- cused were prohibited by court orders from possessing fi rearms at time of shootings. Both ac- cused had largely negative pre- sentence reports. R. v. Woodcock (Aug. 26, 2010, Ont. S.C.J., Pardu J., File No. CR-09-10000384-0000) 89 W.C.B. (2d) 607 (12 pp.). LT When More is Too Much PAGE 15 Starting from $62.50 per month 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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