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November 3, 2008

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Law Times • November 3, 2008 would not expose children to grave risk of harm. Courtney v. Springfield (July 16, 2008, Ont.S.C.J., Mackinnon J., File No. 08-FC-1190) Order No. 008/218/063 (27 pp.). Insurance Respondent son sought account- ing from applicant father with respect to father's appointment as guardian of property of son. Son experienced cognitive impair- ments due to his involvement in motor vehicle accident. Son re- ceived $1,000,700.01 by way of structured settlement for income replacement benefits and atten- dant care. AUTOMOBILE INSURANCE Father entitled to receive attendant care benefit moneys until son left home permanently for purchase of house, and father lived with son in house. Son be- gan living more independently and wished to buy separate house. Son submitted that attendant care money should have been paid di- rectly to him. Father was ordered to pay son amount of $33,885.36. Father was still entitled to at- tendant care moneys until such time as son removed himself from home on permanent basis. Parker v. Parker (July 31, 2008, Ont.S.C.J., Walters J., File No. 9894/98) Order No. 008/218/069 (10 pp.). Son received money Landlord And Tenant RESIDENTIAL TENANCIES Damage went beyond reasonable wear and tear Trial judge did not err in awarding respondents $29,661 on account of damage occasioned to their house while E. occupied house as tenant along with her disabled common law spouse C.. Damage caused to respondents' premises went beyond reasonable wear and tear. Trial judge erred in award- ing respondents three months loss of rent in amount of $3,395 for manner in which E terminated tenancy. Overholding by E. was lawful and appellants vacated only after giving two months notice re- quired by Tenant Protection Act, 1997 (Ont.). Eskritt v. MacKay (Sep. 8, 2008, Ont. C.A., Weiler, Simmons and Rouleau JJ.A., File No. C46326) Appeal from 152 A.C.W.S. (3d) 915; 48 R.P.R. (4th) 227 was allowed in part. Order No. 008/254/038 (2 pp.). Torts NEGLIGENCE Action for damages equal to amount plaintiff company paid for special warrants of defen- dant company. Plaintiff alleged that it was induced to invest $100,000 in special warrants of defendant by misrepresentations negligently made by defendant and its representatives, includ- ing that defendant was going to merge with another corporation, that company would be listed on stock exchange. Special warrants were subsequently converted into 100,000 common shares of defen- dant. Defendant did not merge and was in significant financial stress shortly thereafter. Action allowed. Company negligently misrepresented its value Parties were afforded opportunity to speak to damages. Defendant owned duty of care to plaintiff. Defendant was in special relationship with plaintiff and negligently misrepresented its value to plaintiff. Plaintiff reason- ably relied on misrepresentation and suffered damages as result. Cold River Resources LLC v. 1279514 Ontario Inc. (July 30, 2008, Ont.S.C.J., Hoy J., File No. 03-CL-4928) Order No. 008/218/076 (18 pp.). Wills and Estates resign simply because dispute arose Motion for order removing ex- ecutrix as estate trustee and ap- pointing estate trustee during liti- gation. Testatrix executed will in which her estate was to be divided in four equal parts and distrib- uted to six beneficiaries. ESTATE ADMINISTRATION Chosen executrix not expected to primary beneficiaries were to each receive one-fourth of estate while three secondary beneficiaries were to share remaining one-fourth. Two primary beneficiaries were testatrix' niece and niece's daugh- ter while third was friend of testa- trix. Secondary beneficiaries were niece's two grandchildren and son of friend. Niece was named as executrix and she was appointed estate trustee. Three brought action against estate and beneficiaries for one-half interest in residue of estate by way of con- structive or resulting trust. Mo- tion dismissed. Testatrix would not expect chosen executrix to resign simply because dispute arose, even where executrix was also beneficiary. Testatrix' sister's interpretation of law relating to conflict of interest was too broad and authorities relied upon were not on point. No challenge was made to validity of will. Nothing indicated mismanagement of ad- ministration of estate. Testatrix' sister's claim would likely be op- posed by all beneficiaries regard- less of whether executrix was es- tate trustee. Forbes v. Gauthier Estate (Aug. 20, 2008, Ont.S.C.J., Power J., File No. 07-1143SR) Order No. 008/238/081 (7 pp.). Testatrix' sister ONTARIO CRIMINAL CASES Assault AGGRAVATED ASSAULT Accused had objective foresight that assault would endanger complainant's life Accused and another charged with aggravated assault through endangerment. Accused, while intoxicated, with a co-accused's assistance dragged complainant to a lake and held the complainant under water and nearly drowned him. Accused guilty. met actus reus of aggravated as- sault by endangering complain- ant's life by holding him under water. Mens rea was met as ac- cused was intentionally or reck- lessly or wilfully blind to the fact complainant did not consent and had objective foresight that assault would endanger life of complain- ant. Prior discussions by accused of death and dying by drowning reinforced Crown's position re- Accused CASELAW garding accused's state of mind. Accused stopped his assault after he endangered complainant's life. R. v. Sayers (Sep. 9, 2008, Ont. C.J., Bishop J., File No. 071766) Order No. 008/259/033 (11 pp.). Breathalyzer Accused charged with driving "over 80". Accused blew 188 and 189 respectively but at trial officer stated that the fail meant she had "over 80 milligrams of alcohol in 100 millimetres (not millilitres) of blood". Accused not guilty. Evi- dence of officer demonstrated that subjectively he lacked reasonable suspicion to demand a roadside sample and reasonable grounds to demand samples in an approved instrument, the result was a war- rantless search without necessary subjective grounds. Court could not impute to the officer a knowl- edge he did not have based on his own testimony. SEARCH AND SEIZURE Officer lacked reasonable suspicion to demand roadside sample officer cannot found reasonable and probable grounds on a fun- damental misunderstanding and lack of knowledge of what consti- tutes the actual offence. R. v. Neganigwane (July 4, 2008, Ont. S.C.J., Thibideau J., File No. 998-05-3017) Order No. 008/211/062 (7 pp.). Investigating Extradition and Fugitive Offenders Fugitive brought an application seeking disclosure of a palm print taken by Toronto police in an unrelated matter and forwarded to the Americans, as well as dis- closure related to DNA evidence found at the crime scene. Ap- plication denied. EVIDENCE Disclosure requirements for criminal trials not necessarily applicable to extradition proceedings ments of disclosure applicable to criminal trials in Canada do not necessarily apply to extradition proceedings. Regarding the palm prints, there was no air of reality to the existence of bad faith or improper motive on the part of prosecutors, or to the prospect that any of the fugitive's Charter rights had been breached. Re- garding the DNA, the court had no jurisdiction to order the dis- closure of materials in the hands of American authorities. United States of America v. Go (July 30, 2008, Ont. S.C.J., Clark J., File No. E/15/07) Order No. 008/214/014 (10 pp.). The require- Interception Of Private Communications Accused charged with murder and firearms offences. Wiretap autho- rizations were obtained in support of murder investigation. Firearms charges arose after initial authori- zation. Preliminary inquiry judge in murder case substantially dis- missed Dawson application for leave to cross-examine on affida- vits in support of authorizations. Accused now brought Dawson application in preliminary hear- ing on firearms charges. Applica- REVIEW OF AUTHORIZATION Doctrine of abuse of process precluded Dawson application www.lawtimesnews.com tion dismissed. Doctrine of abuse of process precluded application. Conclusions of preliminary in- quiry judge regarding same affi- davits should not be considered afresh. Accused identified no new issues. No reasonable likelihood that cross-examinations would assist in determining issues now before court. Application would waste judicial resources and risk undermining credibility of ju- dicial process. Accused not de- nied opportunity to make full answer and defence. had already made arguments re- specting affidavits and need for cross-examination and would be able to address issues relating to those wiretaps relevant to fire- arms charges. R. v. Barnett (May 7, 2008, Ont. C.J., Lane J.) Order No. 008/260/027 (7 pp.). Accused Motor Vehicles Accused charged with careless driving. Accused was stopped at a red traffic light and had stopped his car just prior to an unregu- lated railway crossing. Accused began to move forward with his car in first gear and looked to see if a train was coming and shifted into second gear and accelerated. When accused looked back, the line of vehicles had stopped and he braked hard but hit the rear end of another van. Charge dismissed. Although accused did not act as a perfect driver he was fundamen- tally driving with due care and at- tention, being reasonably careful and acting as any average person might in the circumstances. Ac- CARELESS DRIVING Charge dismissed where accused's actions constituted moment of inattention PAGE 15 cused's actions constituted a mo- ment of inattention to the traffic in front of him, while he looked for a train and braked hard when the unforeseen occurred. R. v. Morgan (June 16, 2008, Ont. C.J., Cuthbertson J.) Order No. 008/211/063 (6 pp.). Parole Accused, convicted of first degree murder, applied for permission of the court to empanel a jury to have a hearing to determine whether he should have been granted a reduc- tion in the number of years of im- prisonment without eligibility for parole. INELIGIBILITY Accused had reasonable prospect of success at hearing regarding reduction of parole ineligibility period years of his sentence at the time of application. Accused com- mitted the premeditated killing of his friend by shooting him in the head as he slept after receiving abuse from him during a night of drinking. Accused was convicted and sentenced to life imprison- ment with no eligibility for parole for life. Accused appeared to do well in the institution after being diagnosed with a major depres- sion disorder and medicated ac- cordingly and was being consid- ered as a potential candidate for a minimum security facility. In his 18 years in various institutions, accused established an excellent employment record. Application allowed. Accused satisfied Court on the balance of probabilities that there was a reasonable pros- pect of success before a jury. R. v. Sedore (July 3, 2008, Ont. S.C.J., Stong J., File No. 07- 858) Order No. 008/192/019 (5 pp.). 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