Law Times

Law Times • apriL 11, 2016 Page 15 www.lawtimesnews.com CASELAW of covenants. Tenant brought motion for summary judgment on basis that landlord's claim was brought outside two-year limita- tion period in s. 4 of Limitations Act, 2002 (Ont.). Motion judge held that tenant's breach of cov- enant to occupy premises and operate its business continuously was of continuing nature such that each day of breach gave rise to cause of action. Motion judge found that only portion of land- lord's claim concerning breach that occurred more than two years prior to commencement of action was statute-barred. Mo- tion judge found that landlord's claim for damages for breach of covenant to restore premises was not statute-barred. Landlord ap- pealed but abandoned appeal. Tenant cross-appealed. Cross- appeal dismissed. Tenant's obli- gation to operate its business was ongoing and breach was of con- tinuing obligation under lease. Landlord chose not to cancel lease following tenant's breach. Landlord affirmed lease and par- ties were required to perform obligations as they became due. Tenant could have resumed per- forming obligations at any time before lease ended by carrying on its business but chose not to resume obligations under lease prior to lease expiring. Fresh cause of action accrued every day that breach continued, every day that tenant failed to carry on its business in accordance with cov- enant. Accrual of fresh causes of action set clock running for new two-year limitation period. Lim- itation period commenced each day fresh cause of action accrued and ran two years from that date. Landlord was entitled to claim damages for breach of covenant going back two years from when its action was commenced until lease expired. Motion judge was entitled to find that landlord was making claim for breach of cov- enant to repair and restore at end of lease and limitation period began to run when lease expired. Action was commenced within two years of discovery of claim. Pickering Square Inc. v. Tril- lium College Inc. (Mar. 3, 2016, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A., CA C58900) Deci- sion at 240 A.C.W.S. (3d) 986 was affirmed. 263 A.C.W.S. (3d) 217. Natural Resources MINES AND MINERALS Divisional Court reason- ably interpreted provisions of Mining Act (Ont.) Appellant, 227, wanted to use sur- face of over two hundred staked mining claims along corridor to build railway to access and de- velop large chromite deposit. It entered into shareholder agree- ment with respondent, CCC, to secure necessary investment but CCC decided to develop its own deposit instead. CCC wanted to build publicly-accessible road which would cross 108 of 227's claims. 227 refused to consent to easement. CCC applied to Min- ing and Lands Commissioner (MLC) under Mining Act (Ont.) for disposition of surface rights over portions of 277's claims. Under s. 50(2) of Act, claim holder does not have any claim to surface rights other than to enter upon and use part(s) thereof as necessary for exploration, devel- opment and operating of mining rights therein. Subsection 51(1) provides that unpatented min- ing claim holder has right, prior to subsequent right to user of surface rights, for exploration, development and operation of mining rights. Section 51(4) pro- vides mechanism for dispensing with consent. MLC dismissed CCC's application, concluding that purpose for which 227 want- ed to use surface of its claims did not have to relate to exploration, development and operation of mines, minerals and mining rights. Divisional Court allowed CCC's appeal and made order dispensing with 227's consent, holding that MLC made unwar- ranted distinctions between sur- face rights of mining claim hold- ers as surface rights are restricted to parts of land necessary for mining activities on the claim. Divisional Court concluded that since 227's proposed railway was not planned to develop min- ing claims but rather to provide transportation corridor, 227 was not entitled to claim priority for that project. 227's appeal was dismissed. Divisional Court's in- terpretation of ss. 50(2) and 51(1) was only reasonable interpreta- tion; sections make no distinc- tion between public and private lands. Subsection 50(1) sets out rights of holder to use surface for defined purposes related to min- ing claim and s. 51 gives holder limited priority to use surface for purposes set out in s. 50(2). It does not confer additional surface rights. In absence of any evidence that proposed use would, in fact, interfere with ex- ploration or mining activities on the claims, Divisional Court was correct in finding that MLC's decision was unreasonable. Only reasonable outcome was to dispense with 227's consent. 2274659 Ontario Inc. v. Cana- da Chrome Corp. (Feb. 24, 2016, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A., CA C59945) Deci- sion at 245 A.C.W.S. (3d) 215 was affirmed. 263 A.C.W.S. (3d) 231. Professions BARRISTERS AND SOLICITORS Lawyer properly believed that there was no opportunity for coverage under law in place at time of his initial retainer Plaintiff P was seriously injured as passenger in motorcycle ac- cident. Accident took place in 1993, when P was vacationing with boyfriend in Jamaica. P 's fa- ther consulted defendant lawyer K in December 1994, almost two years after accident. K reviewed relevant law and determined that there was notr coverage for acci- dent benefits under policy. This was due to fact that accident took place outside of North America. After two-year limitation period expired, K found out about new developments in case law that could potentially allow for claim by P. K submitted claim for ac- cident benefits on P's behalf. K gave up carriage of file in 2000, and P retained new counsel. Ac- tion was eventually commenced by P in 2003, against her ac- cident benefits insurer. Action was dismissed as statute-barred in 2006. P then commenced ac- tion against her lawyers for neg- ligence. Action only proceeded to trial against K. P sought dam- ages representing what she would have received in accident benefits claim. Action dismissed. K was experienced lawyer who was specialist in insurance and per- sonal injury field. K performed to this standard in his represen- tation of P. K properly believed that there was no opportunity for coverage under law in place at time of his initial retainer. When caselaw was released showing possibility of coverage, K acted promptly to submit claim on P's behalf. K could no longer carry file to due to conf lict of interest and referred file to another law- yer as soon as possible. K did act properly in issuing tort claim, which was not affected by juris- dictional issue. P and her father understood instructions of K. K's course of action was reason- able, given that there had been no challenge to established law on jurisdictional issue. K could not have foreseen future devel- opments at time of initial re- tainer. There was no reasonable possibility for benefits to be al- lowed, if they had been claimed. Pilotte v. Gilbert, Wright & Kirby, Barristers & Solicitors (Jan. 22, 2016, Ont. S.C.J., S. Chapnik J., 04-CV-265494CM2) 263 A.C.W.S. (3d) 245. Ontario Criminal Cases Defences DURESS Accused did not have safe avenue of escape from threat posed by boyfriend Accused's mother removed bag that contained semi-automatic firearm and some bullets from trunk of accused's car. Firearm and ammunition belonged to accused's boyfriend and boy- friend threatened to kill accused, accused's daughter and other family members if firearm was not returned to him and if it was delivered to police. Bag ended up in mother's car and accused grabbed bag and f led in her own car to home of acquaintance and she asked him to hold gun and ammunition for her. Accused had been instructed by boy- friend to deliver gun and ammu- nition to acquaintance. Police recovered firearm and bullets. Accused was charged with il- legal possession of firearm and ammunition and other related charges. Accused claimed that she lacked requisite mens rea because her boyfriend physically abused her and threatened to kill her and other family mem- bers. Accused acquitted. Crown did not dispute that accused was physically abused by boy- friend or she may have feared him. However, it claimed that she chose to remain with him to protect him. Crown also claimed that she had multiple avenues to escape his clutches. There was ex- plicit threat of present or future death or bodily harm to accused or to other persons. Accused rea- sonably believed that boyfriend would carry out threat. Accused did not have safe avenue of es- cape. There was close temporal connection between threat and harm threatened. There was no evidence that accused was involved in conspiracy with boyfriend to commit illegal act and she knew that threats and coercion would be logical re- sults of such activity. Defence of duress was therefore made out. R. v. Markoff (Dec. 14, 2015, Ont. S.C.J., André J., CR-14- 174-00) 127 W.C.B. (2d) 502. Prostitution PROCURING Accused convicted of human trafficking offences Accused was charged with nine counts including counts relat- ing to human trafficking. Com- plainant C was 21-year old exotic dancer and escort who agreed to do escort work for accused so they could earn more money. After few days, accused told C that he would keep 100 per cent of proceeds, and his behaviour turned nasty. C claimed that ac- cused beat her repeatedly, usu- ally for not earning at least $800 per day, and that he made her work when she was sick or ex- hausted. Accused convicted of human trafficking offences. C exaggerated her evidence to in- crease perception that she was victim throughout relationship and that accused controlled all of her behaviour through violence and threat of violence, but much of her evidence was accepted. Accused soon started to exercise control over C by assaulting her or threatening to hurt her if she did not do as he said, making her believe that she made him react as he did, and making her finan- cially dependent on him. C was not under accused's complete control every moment, but on numerous occasions he exercised control over her and directed her actions. If C did not earn daily quota set by accused, she was beaten or told to earn more, even when she was exhausted or sick. Accused effectively controlled what C did to get her to con- tinue working so she earn more money for him. C was compliant because she feared being beaten. Accused was guilty of traffick- ing, contrary to s. 279.01(1) of Criminal Code, through exer- cising control over C's move- ments for purpose of exploiting her. Accused knew that money he received from C resulted from his exercising control over her movements for purpose of exploiting her as escort and dancer, and was fully aware that C worked as much as she did and handed over all of her earnings to him because she feared being beaten if she did not live up to his expectations. Accused was guilty of receiving material ben- efit from trafficking, contrary to s. 279.02(1) of Code. Accused withheld C's SIN card as form of control over her to ensure that she returned to him with her birth certificate and continued to earn money for him through dancing and escorting. Accused was also guilty of withholding documents to facilitate traf- ficking, contrary to s. 279.03. R. v. S. (R.R.) (Dec. 18, 2015, Ont. S.C.J., Aitken J., 13- A12648) 127 W.C.B. (2d) 541. Trial CHARGE TO JURY Trial judge erred by finding that self-defence and accident were incompatible defences Accused responded to insult to his friend by punching com- plainant. Brawl broke out last- ing approximately one minute, during which accused bran- dished knife. Shortly thereafter, complainant was stabbed with knife. Accused was charged with aggravated assault, possession of weapon for dangerous purpose and assault. Accused claimed that he held knife up first to de- fend friend, then to defend him- self and never intended to stab complainant. Trial judge con- cluded there was no air of reality to defence of self-defence. Ac- cused was convicted by jury. Ac- cused appealed. Appeal allowed and new trial ordered. On aggra- vated assault charge, trial judge erred by usurping function of jury in making factual findings, by finding that self-defence and accident were incompatible de- fences and by not considering other sections of Criminal Code relating to self-defence. Self-de- fence and accident can co-exist. By incorporating s. 265(1)(b) of Criminal Code into first element of offence of aggravated assault, without charging on self-de- fence, trial judge effectively took away both defences from jury. Essence of accused's defence was eliminated and there was no path to acquittal even if jury believed accused's testimony. On weapons dangerous count, trial judge erred by failing to tell jury that to find accused guilty they had to reject his evidence that he had knife for purpose of self-defence. Trial judge should not have assessed evidence or directed jury that Crown had proven first two essential ele- ments beyond reasonable doubt. R. v. Budhoo (Dec. 23, 2015, Ont. C.A., K. Feldman J.A., M.L. Benotto J.A., and L.B. Rob- erts J.A., CA C56507) 127 W.C.B. (2d) 596.

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