Law Times

Law Times • august 24, 2015 Page 15 www.lawtimesnews.com bank brought another summary judgment motion, seeking pay- ment from G of all amounts due under mortgage, as well as pos- session of property. G was or- dered to pay amount of $814,318 and to deliver up possession of mortgaged property to bank. G appealed. Appeal dismissed. G did not arranged new mort- gage on property. Rather, he assumed mortgage arranged by M with bank, which had prin- cipal amount of $587,623.44. Amount of $113,826.87 paid by G to bank was to be applied to mortgage debt in accordance with terms of mortgage. Pay- ment did not bring mortgage into good standing. Thus, there was no basis upon which to interfere with motion judge's grant of summary judgment in favor of bank. CIBC Mortgages Inc. v. Mo- stafavi (May. 28, 2015, Ont. C.A., K.M. Weiler J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C56178) 254 A.C.W.S. (3d) 945. Municipal Law BYLAW Mission fell within scope of words "church-sponsored com- munity activities and projects" River City church, located in ur- ban residential zone in Sarnia, has operated men's homeless shelter known as Harbour Inn Mission since 2006. Sarnia op- posed operation of the mission on ground it breached its zoning bylaw, which permits "church, school and parking only", and applied for injunction. Appli- cations judge issued injunction against River City prohibiting it from operating the mission. River City's appeal allowed. Applications judge erred in concluding that express pro- hibition on soup kitchens and food banks indicated intention to narrowly prescribe range of activities that constitute church use. Specificity of words "shall not include a soup kitchen or food bank " implies that express prohibitions were intended to be exhaustive. No indication that analogous activities were to be read in. Prohibition on soup kitchens and food banks also relates to accessory uses and not church-sponsored community activities or projects. Applica- tions judge erred by concluding that renovations to church base- ment took Mission outside word "use" as defined in bylaw. No indication in by-law that defini- tion of "use" was limited to pur- poses that existed when build- ing first constructed. Word "is" indicates present purpose rather than original purpose. Words "occupied" or "maintained" similarly refer to ongoing state or action. If church building is currently occupied or main- tained as homeless shelter, it qualifies as a "use." Applica- tions judge erred by attaching relevance to fact that Mission fits under bylaw's definition of "emergency shelter." No indi- cation that "church-sponsored community activities and proj- ects" may not include uses that are defined elsewhere in bylaw. Mission falls within scope of words "church-sponsored com- munity activities and projects." Drafters chose fairly broad and permissive language to describe uses churches were entitled to make of their premises. Words "community activities and proj- ects" reveals intention to allow churches to engage in socially beneficial conduct and respond to needs of community. Inter- pretation of "church-sponsored community activities and proj- ects" that includes homeless shelters is sufficiently restrictive to be consistent with object of bylaw to regulate land use. Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia (Trustees of) (Jul. 3, 2015, Ont. C.A., Doherty J.A., Gloria Epstein J.A., and M. Tull- och J.A., File No. CA C58676) Decision at 240 A.C.W.S. (3d) 443 was reversed. 254 A.C.W.S. (3d) 947. Pensions BENEFICIARIES Wife entitled to all benefits payable to surviving spouse under pension Separation agreement distin- guished between what wife was to receive if husband lived and received pension benefits and what she was entitled to receive if he died before pension came into pay. Husband died before pension came into pay. Motion judge interpreted provisions of separation agreement and found conf lict between s. 48(3) and (13) of Pension Benefit Act. Wife appealed. Appeal was al- lowed and cross-appeal was dismissed. As result of decision and in accordance with consent of counsel, declaration of court was added to endorsement. Wife was sole surviving spouse of husband and was to receive all benefits payable to surviving spouse under pension plan. Re- spondent was to pay to wife all pension benefits due and owing to her as sole surviving spouse. Welsh v. Ashley (Apr. 24, 2015, Ont. C.A., R.G. Juriansz J.A., J. MacFarland J.A., and P. Lauwers J.A., File No. CA C59466) Addi- tional reasons to 253 A.C.W.S. (3d) 145. 254 A.C.W.S. (3d) 880. Professions BARRISTERS AND SOLICITORS Motion to have solicitor prohibited from acting for party on basis of conflict of interest granted Parties were siblings. Mother transferred home to herself and applicant and joint tenants and camp property to herself and re- spondent as joint tenants. Moth- er moved into retirement home and her home was sold, with solicitor acting for both mother and applicant in sale of house. Applicant deposed mother did not disclose any confidential information to solicitor and so- licitor deposed he was satisfied with mother's capacity to sign. Applicant then retained solici- tor to send demand letter to re- spondent to contribute to moth- er's upkeep in retirement home. Within weeks of transfer, appli- cant brought this application, to have mother declared incapable of managing property, appoint- ment of herself as guardian, and order of sale of camp property. Motion by respondent to have solicitor prohibited from acting for applicant on basis of con- f lict of interest. Motion granted. Sale of home was connected to current litigation as it clearly formed part of applicant's plan to ensure maintenance of moth- er. Mother was a respondent to this application and solicitor previously assisted her as his cli- ent, so there was clear conf lict of interest. Applicant's assertion litigation was intended to help mother did not erase conf lict or concerns mother had voiced to public guardian and trust- ee about solicitor's apparent change of position. Objectively speaking, it seemed incongru- ous that solicitor was satisfied with mother's capacity when he assisted her with transfer then almost immediately after, sought to have her declared in- capable. Mother's capacity was central to mother current appli- cation and legitimacy of transfer and in such circumstances it did not matter whether confiden- tial information passed from mother to solicitor. There was also potential solicitor would be summoned as witness about observation of mother and dis- cussions with applicant. Boston-Cloutier v. Boston (Mar. 26, 2015, Ont. S.C.J., A.D. Kurke J., File No. 26304/13) 254 A.C.W.S. (3d) 956. Torts LIBEL AND SLANDER Words in issue were far removed from meaning sug- gested in statement of claim Plaintiff brought defamation action against author P and her publisher arising from publica- tion of P's book about Toronto street gang, in which plaintiff was mentioned in negative light. Plaintiff asserted that impugned passage in book was defamatory on its face, suggesting that he was criminal, immoral, and vio- lent person. Defendants brought motion for summary judgment dismissing action which was granted. Plaintiff appealed. Appeal allowed in part. Words in issue, read as whole and in context, were far removed from meaning suggested by plaintiff in his statement of claim. Mo- tion judge did not need to con- sider "true innuendo" category of interpretation of allegedly defamatory statements because plaintiff 's counsel on motion specifically disclaimed reliance on it. Motion judge was not re- quired on summary judgment motion to grant plaintiff leave to amend his pleading rather than dismissing action. More- over, at no time during sum- mary judgment proceeding did plaintiff request leave to amend his amended statement of claim. However, motion judge erred by awarding substantial indem- nity costs to both defendants for both motion and action. Ad- justment in motion judge's costs award was required. Costs were awarded on partial indemnity basis. Midanik v. Powell (May. 25, 2015, Ont. C.A., J.C. MacPher- son J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C59571) 254 A.C.W.S. (3d) 989. ONTARIO CRIMINAL CASES Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Trial judge did not err in finding that police had objec- tively reasonable grounds for arrest for drug offence Accused appealed from his con- viction for possession of heroin for purpose of trafficking. Po- lice received tip from confi- dential source that accused was trafficking in heroin from par- ticular vehicle with particular licence plate number. Three po- lice officers subsequently con- ducted surveillance of accused as he drove or rode in vehicle described in tip and made vari- ous stops and had various inter- actions over period of two days. In their evidence, one or more of officers described observing accused as he engaged in what relevant officer viewed as hand- to-hand transaction at address of known heroin user; as other individuals entered vehicle and then got out shortly after enter- ing; and as accused approached entrances of other residences and then soon walked away. At end of surveillance period, police arrested accused and search incident to arrest re- vealed he was in possession of 7.3 grams of heroin in 10 indi- vidually wrapped pieces along with $1,215 in cash and digital scale. In reasons on pretrial Charter application, trial judge was not satisfied that police had established that accused at- tended residence of known her- oin user or that they observed hand-to-hand transaction at that address. Nonetheless, in trial judge's view, accused's at- tendance at residence formed part of pattern of conduct that removed possibility of inno- cent coincidence. Accordingly, trial judge found police officers subjectively believed they had reasonable grounds to arrest accused without warrant and those grounds were objectively reasonable. On appeal, accused argued that, in light of findings of fact concerning police evi- dence, trial judge erred in find- ing that police had objectively reasonable grounds for arrest and further erred in failing to exclude evidence discovered on search incident to arrest. Ap- peal dismissed. Trial judge ac- knowledged that tip received by police was "bare bones" and that it required robust corroboration then carefully catalogued police observations of accused's move- ments and stops over two-day period. Trial judge recognized that some of these observations could not reasonably be said to corroborate information re- ceived from tipster. After elimi- nating those observations from his list, trial judge was left with series of eight "stops" by accused during which either someone was seen brief ly entering vehicle in which accused was riding or driving (which was subject of tip), or accused was seen ap- proaching residence for brief period. Trial judge found pat- tern of conduct emerged from those observations, giving rise to reasonable grounds for arrest and court agreed. R. v. Dezainde (Jun. 25, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. LaForme J.A., File No. CA C59374) 122 W.C.B. (2d) 332. Preliminary Inquiry DISCHARGE OF ACCUSED Dismissal of charges against nurse and doctor quashed on application for certiorari Application by Crown for cer- tiorari to quash decision of pre- liminary inquiry judge. Judge dismissed five charges against accused and committed them to trial on five other offences. Female accused was registered nurse and male accused who was her husband, was doctor licensed to practice medicine in Ontario. Together, accused operated medical clinic. Po- lice alleged that accused held "clinics" in various provinces and for cash payment of $250 patients received documenta- tion signed by male accused that entitled them to apply to Health Canada to receive li- cence to possess and grow mar- ijuana. People were also seen in clinic for sole purpose of hav- ing their documents signed by male accused. These individu- als were charged $100 and, in addition, OHIP was billed. To qualify for licence person had to have specified condition and must have seen specialist for this condition, and special- ist must have tried other treat- ments and that such treatments failed. Specialist had to agree that marijuana should be used. None of specialists referred to in documentation recom- mended use of marijuana. Five charges were dismissed be- cause documents were not con- sidered to be forged documents as defined in s. 366 of Criminal Code. Application allowed. Judge did not assess whole of evidence against correct ele- ments of offence of forgery and he committed jurisdictional error. Had he considered ele- ments argued by Crown he may have reached different conclu- sion. Dismissal of five charges was quashed and matter was remitted to judge to consider law and all of evidence. R. v. Kamermans (Jun. 26, 2015, Ont. S.C.J., J.M. John- ston J., File No. CR 14-0046-00) 122 W.C.B. (2d) 367. LT CASELAW

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