Law Times

Law Times • sepTember 27, 2010 clearly and unequivocally stated what should and should not be done. Plaintiff s proved defen- dant deliberately and willfully disobeyed order. Defendant and husband not credible witnesses. Defendant admitted that her af- fi davit was incorrect in several material respects. Evidence of defendant and husband respect- ing destruction of three of re- ceivers not plausible and did not raise reasonable doubt. Bell Expressvu Limited Partner- ship v. Bahadur (Aug. 13, 2010, Ont. S.C.J., Hoy J., File No. 09-8509-00CL) 191 A.C.W.S. (3d) 108 (11 pp.). Corporations OPPRESSION Compensation awards varied on appeal Dispute arose between two friends, respondent F. and one of appellants T., who had 14- year business relationship. Ap- plication judge found that F. had suffi cient interest in one of companies ("GPI") that carried on carrageenan business so as to entitle F. to remedy under s. 248 of Business Corporations Act (Ont.). Application judge also concluded that F. had contractual right to become 40% shareholder in GPI. It was clearly open to application judge to fi nd, on basis of oral agreement and actions of two parties in implementing that agreement, that F. had contrac- tual right to 40% ownership in shares of GPI. Any lack of clarity about terms at time of formation of oral agreement did not interfere with way par- ties were able to perform under agreement over lengthy period of time. Success or failure of F.'s application turned on whether he was entitled to remedy un- der s. 248 of Act. Application judge concluded properly that F. had standing as complainant under s. 245 of Act and that F. had suffi cient interest as secu- rity holder under s. 248(2) to confer jurisdiction on court to make order under that section. Further, F. was proper party to assert claim to 40% interest in companies. Application judge made several compensation awards. As $50,000 loaned by F. to GPI had been repaid by time of trial, award was re- duced by that amount. Also, evidence did not support award of $64,000 compensation to F., being 40% of advance made by GPI to PGP in respect of purchase of property. Appeal was allowed in part by reducing award by $50,000 and by strik- ing award of $64,000. Cross- appeal was dismissed. Fedel v. Tan (July 5, 2010, Ont. C.A., O'Connor A.C.J.O., Cronk and Watt JJ.A., File No. C49693) Decision at 169 A.C.W.S. (3d) 559 was reversed in part. 191 A.C.W.S. (3d) 125 (38 pp.). International Law SOVEREIGN IMMUNITY Sovereign immunity did not apply to statements made by Guyana's minister of agriculture Plaintiff s brought action claim- ing defendants made false or defamatory statements con- cerning plaintiff s' business and disparaged plaintiff s' trade- mark. Defendants, including Guyana's Minister of Agricul- ture, brought motion to dis- miss action based on doctrine of sovereign immunity. Under State Immunity Act (Can.), foreign state or agency was immune from civil jurisdic- tion of Canadian court except in proceedings relating to ei- ther "commercial activity" of foreign state or "damage to or loss of property" that occurred in Canada. Motion dismissed. Sovereign immunity did not apply to statements made by Minister. Section 5 of Act rec- ognized spectrum of activi- ties ranging from sovereign to commercial, and that certain activities may have hybrid na- ture. Determination of nature of hybrid activities required consideration of entire context as well as nature and purpose. Statements here not exempt as they had stronger nexus to commercial activities of Guya- nese state than to sovereign interest of Guyana. To permit lawsuit was neither aff ront to dignity of Guyanese state nor interference with its sovereign functions. Bedessee Imports Ltd. v. Guyana Sugar Corp. (June 10, 2010, Ont. S.C.J., Strathy J., File No. CV-09-381202) 191 A.C.W.S. (3d) 335 (18 pp.). Sale Of Land CLOSING Parties were to be returned to pre-agreement positions Plaintiff was vendor. Parties entered agreement of purchase and sale for condominium townhouse. Transaction did not close. Plaintiff s brought action on account of reduced sale price realized on eventual sale of property, extra expenses incurred and loss of return on capital. Action was dismissed. Parties were to be returned to pre-agreement positions and deposit was to be returned to defendants. Defendants were at all times ready, willing and able to close transaction. Ven- dor was not or at least did not communicate willingness to close transaction. Th ere was no merit in argument defendants did not make good faith eff ort to close honest bargain. Wallace v. Nother (July 23, 2010, Ont. S.C.J., Flynn J., File No. 08-4092-SR) 191 A.C.W.S. (3d) 313 (7 pp.). ONTARIO CRIMINAL CASES Courts JURISDICTION Jurisdiction of Superior Court to apply Charter could not be ousted by statute Accused charged with terror- ism off ences. Crown asserting national security privilege with respect to requested disclo- CASELAW sure and possible testimony. Provision of Canada Evidence Act requiring privilege claims to be determined in Federal Court was unconstitutional as it ousted jurisdiction of Supe- rior Court. Right to disclosure was component of right to make full answer and defence and was aspect of fundamental justice. Jurisdiction of Superior Court to apply Charter could not be ousted by statute. Su- perior Courts were only courts of competent jurisdiction to determine constitutional rights of accused persons on trial in superior court. R. v. Ahmad (Jan. 15, 2009, Ont. S.C.J., Dawson J., File No. CRIMJ(F)2025/07) 89 W.C.B. (2d) 325 (95 pp.). Evidence CHARACTER EVIDENCE High school essay not admissible but "departure letters" admissible Accused, charged with terror- ism off ences as one of "To- ronto 18", applied to exclude essay he wrote in high school entitled "Bin Laden Rules" as well as spiral notebook found by police containing drafts of what had been referred to as "departure letters" consisting of four undated handwritten let- ters in which accused advised his family that he had left for unknown location to fi ght for sake of Allah. High school es- say not admissible, departure letters admissible. Essay was written by youthful high school student approximately two and one half years before events for which Crown wished to use as evidence of motive and mens rea. Th ere was literary expres- sive element to essay that ob- scured author's subjective views which made determination of author's state of mind and therefore relevance, more diffi - cult. Danger jury would misuse essay outweighed any probative value it had. Meaning of depar- ture letters, particularly taken together, was clear from words of letters themselves. Although letters were unsigned they were addressed to father, mother and sister of accused. As accused in- tended to raise lack of knowl- edge as defence letters were rel- evant evidence with signifi cant probative value in context of other evidence. R. v. Ahmad (Aug. 20, 2009, Ont. S.C.J., Dawson J., File No. CRIMJ(F)2025/07) 89 W.C.B. (2d) 305 (10 pp.). Search And Seizure INFORMATION FOR WARRANT Cross-examination of police affiant allowed on certain issues Accused, six men arrested for terrorism related off ences as part of "Toronto 18", applied for leave to cross-examine po- lice affi ant behind ITO for various warrants. Cross-exam- ination of affi ant allowed on certain issues. Court concluded that there was reasonable likeli- hood that it would be assisted by cross-examination of affi - ant about what steps, if any, he took to look into and verify www.lawtimesnews.com information provided by CSIS. Cross-examination would be helpful to determine whether there was misleading or mate- rial omission about motivation of human source who wished to remain confi dential. Court granted leave to cross-examine as to why affi ant chose to refer to one of accused as "trusted lieutenant" of man alleged to be leader of organization. Crown conceded that accused should be permitted to cross-examine as to why two of accused were not named in authorizations that issued immediately after they were identifi ed by police during investigation. Cross-ex- amination on myriad of other issues was disallowed because it was irrelevant, of no assistance to court, did not require cross- examination to be dealt with or request appeared to be fi shing expedition. R. v. Ahmad (Nov. 19, 2009, Ont. S.C.J., Dawson J., File No. CR-07-2025-0000) 89 W.C.B. (2d) 335 (17 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Application for order in nature of certiorari to quash committal was dismissed Application by accused for or- der in nature of certiorari to quash decision that ordered him to stand trial on four charges of robbery. Accused claimed that surveillance pho- tographs of perpetrator who committed robberies and who was disguised, did not consti- tute evidence of identity so as PAGE 19 to justify committal for trial. Crown relied on photographs and on evidence of accused's probation and parole offi cer who examined photographs and who identifi ed accused as perpetrator. Preliminary in- quiry judge did not rely on of- fi cer's evidence. He did, howev- er, conclude that photographs constituted some evidence that could prove identity and assess- ment of such evidence had to be left to trier of fact. Application dismissed. Court did not agree with judge's conclusions. How- ever, it could not grant certio- rari because it reached diff erent conclusion than judge. Th ere were some similarities between photographs and accused and court's diff erences with judge related to suffi ciency of evi- dence of identity. Error of this sort did not give rise to certio- rari since questions regarding suffi ciency of evidence were within exclusive jurisdiction of preliminary inquiry judge and they were not subject to review. Th is application had to be dis- missed because court did not accept that there was no evi- dence of identifi cation. If com- mittal was based on circum- stantial evidence disagreement about inferences that could be drawn from such evidence did not constitute jurisdictional error on part of judge. Even if he was mistaken, mistake was within his jurisdiction and cer- tiorari was not available. R. v. Sheardown (July 29, 2010, Ont. S.C.J., Ducharme J., File No. M12/10) 89 W.C.B. (2d) 313 (12 pp.). 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