Law Times

Law Times • JuLy 11, 2016 Page 15 www.lawtimesnews.com CASELAW and was charged with breach of recognizance and obstruct- ing police. Breach charges were assigned to Domestic Violence Court, where applicant attended for several pre-trial appearances. Prosecuting Crown realized that matter had been assigned to Domestic Violence Court in er- ror because assault had not been against mother. Charges were transferred to regular Criminal Court in Ontario Court of Jus- tice where applicant was tried and acquitted. Applicant alleged name of court violated his consti- tutional rights under ss. 7, 12, and 15 of Canadian Charter of Rights and Freedoms. Application for declaration that name "Domestic Violence Court" be deemed in- valid and for order that name be changed to "Domestic Court" was dismissed. Trial judge found there was no evidence before court that applicant had personally suffered stigma sufficient to engage his s. 7 security of person interest Trial judge found notwithstanding his claims of stigmatization and prejudice, applicant had positive experience with Children's Aid Society during time matter was before Domestic Violence Court. Trial judge found applicant was able to fully defend himself, with- out being prejudiced by his ap- pearances in Domestic Violence Court. Trial judge found no de- privation of fundamental justice. Trial judge found name of court was rationally connected to valid government purpose and scope. Applicant appealed. Appeal dis- missed. Trial judge properly ap- plied test. Application risked triv- ializing important Charter rights. Foessl v. Ontario (Attorney General) (Apr. 22, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and L.B. Rob- erts J.A., CA C60986) Decision at 257 A.C.W.S. (3d) 99 was af- firmed. 265 A.C.W.S. (3d) 901. Contracts FORMATION Trial judge properly applied rectification Conduct of parties confirming formation of contract. Respon- dent owned cemetery, and ap- plicant sought to purchase plots in cemetery for subsequent sale to its members. Parties executed agreement on May 13, 2014 (sub- ject agreement). Subject agree- ment stated that it was not formal agreement, and that after formal agreement was made, deposit of $50,000 would be paid and 45 days would be allocated for appli- cant's due diligence. On same day as subject agreement was execut- ed, applicant provided respon- dent with $50,000 deposit. Ap- plicant carried out due diligence during 45-day period from sign- ing of subject agreement and sub- sequently advertised cemetery plots for sale. Applicant's appli- cation seeking order that subject agreement be rectified and spe- cifically performed was granted. Trial judge found subject agree- ment was contract that bound parties. Trial judge found parties both acted as if subject agreement was formal and final agreement between them. Trial judge found actions supporting this conclu- sion included payment and ac- ceptance of deposit, conducting of due diligence, and advertising of plots for sale. Failure to remove references to "formal agreement" in subject agreement was result of mutual mistake. Trial judge found subject agreement was to be rectified by removal of relevant clause. Trial judge found nothing parties did, wrote, or agreed to obliged lawyers to be involved before formal agreement could be made. Trial judge found sub- sequent statements made by rep- resentatives of parties regarding legal status of agreement were not determinative. Respondent appealed. Appeal dismissed. Binding contract existed. Trial judge properly applied rectifica- tion. Formal agreement was not condition precedent. New argu- ments raised for first time on ap- peal not considered. Toronto Muslim Cemetery Corp. v. Muslim Green Cem- eteries Corp. (Apr. 18, 2016, Ont. C.A., K.M. Weiler J.A., E.A. Cronk J.A., and M.L. Benotto J.A., CA C61080) Decision at 257 A.C.W.S. (3d) 336 was affirmed. 265 A.C.W.S. (3d) 906. Industrial and Intellectual Property COPYRIGHT No error in judge's reference to confirmatory evidence Licensor X licensed software to licensee S Inc. pursuant to li- cence agreement and product schedules, which set out elements of software licensed for non- production purposes and later for production purposes. Agree- ments specified that software was for use on specified hardware system (AIX system) with speci- fied database system (CMOD database). S Inc. began using soft- ware in production environments on multiple servers, on operating systems other than AIX, and with databases other than CMOD. X and successor A Corp. brought action for damages for breach of contract and copyright infringe- ment. Motion judge partially granted X's motion for summary judgment. Judge accepted that S Inc.'s licence to use software was restricted to use on AIX operating system. Judge found that S Inc.'s use on other operating systems in production environment was in breach of contract and con- stituted copyright infringement within meaning of Copyright Act (Can.). X appealed on other grounds; S Inc. cross-appealed. Appeal dismissed; cross-appeal allowed in part on other grounds. Contrary to S Inc.'s assertion, product schedules were integral part of licence agreement. Evi- dence of parties' affiants was con- sistent on question of software being platform and operating system dependent. Fact that prod- uct schedules contained admitted error was of no moment. Fact that S Inc. was required to pay for tech- nical support required as result of software's unintended use did not mean that X granted licence for such use. There was no error in judge's reference to confirmatory evidence. Actuate Canada Corp. v. Symcor Services Inc. (Mar. 18, 2016, Ont. C.A., E.E. Gillese J.A., K. van Rensburg J.A., and B.W. Miller J.A., CA C60073) Decision at 251 A.C.W.S. (3d) 206 was re- versed. 265 A.C.W.S. (3d) 908. Landlord and Tenant TERMINATION OF LEASE Summary judgment for wrong- ful termination of lease set aside Plaintiff leased historic property from defendants. Parties entered into lease for term of 10 years with two five-year options to re- new. Defendants' primary objec- tive was to develop property in conjunction with high-rise com- mercial development on adjacent parking lot. Defendants secured anchor tenant and terminated lease amendment negotiations with plaintiff. Plaintiff com- menced action for damages for wrongful termination of lease and brought successful motion for summary judgment. Motion judge's decision granting sum- mary judgment was set aside on appeal on basis that written notice of termination provided by de- fendants was beyond six months and was out of time. Matter was remitted back to motion judge for quantification of damages. Both parties asked that quantification of damages, if any, be remitted to judge other than original motion judge. Additional reasons issued. Endorsement was modified to provide that matter be remit- ted to different judge of Superior Court of Justice for quantifica- tion of any damages. 2249740 Ontario Inc. v. Mor- guard Elgin Ltd. (Mar. 31, 2016, Ont. C.A., Feldman J.A., Sim- mons J.A., and Miller J.A., CA C59998) Additional reasons to decision at 263 A.C.W.S. (3d) 481. 265 A.C.W.S. (3d) 1042. Ontario Criminal Cases Appeal SENTENCE APPEAL Total sentence imposed was not unreasonable Upon conviction for series of firearms offences accused was sentenced to total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions. Accused was found to have fired several shots from high powered rif le into home of complainant. Ac- cused submitted that trial judge erred in imposing consecutive sentences on count 3 (mischief by willfully damaging dwelling house by discharging firearm into dwelling house and endangering life) and count 1 (intimidating justice system participant in order to impede her in performance of her duties), submitting that same conduct gave rise to both charges and provided factual basis for both convictions and that sen- tences should have been concur- rent. Accused appealed his sen- tence. With exception of victim surcharge issue appeal dismissed. Trial judge had discretion to im- pose consecutive sentences on two charges. Whether consecu- tive or concurrent sentences were to be imposed, totality of sentenc- es imposed was what ultimately mattered. No doubt sentence im- posed on charge of intimidating justice system participant (three years) would have been much higher but for concerns over to- tality of sentences imposed in light of accused's age and absence of any prior significant criminal involvement. Total sentence im- posed was not unreasonable. Al- though trial judge waived victim fine surcharges, order imposing surcharges was signed by clerk of court. Crown agreed that this or- der must be quashed. R. v. Abbasi (Mar. 18, 2016, Ont. C.A., Doherty J.A., Janet Simmons J.A., and K.M. van Rensburg J.A., CA C60162) Deci- sion at 118 W.C.B. (2d) 216 was af- firmed. 129 W.C.B. (2d) 411. Appeal allowed and sentence requested by Crown at trial im- posed Accused was sentenced to ef- fective sentence of 16 months af- ter he pleaded guilty to number of driving offences and possession of stolen property. Crown asked for five months, in addition to seven months pre-trial custody. Trial judge imposed further nine months so that accused could attend Ontario Correctional In- stitute ("OCI)", where minimum of nine months was required for admission. Accused then was rejected from OCI. Accused ap- pealed sentence. Appeal allowed; sentence set aside and sentence of five months, in addition to seven months of pre-trial cus- tody, imposed. Despite accused's lengthy and serious record, he showed genuine remorse before trial judge and court, and was sincere in his desire to straighten out. In light of fact that trial judge imposed sentence four months higher than Crown requested in order to help accused get treat- ment at OCI, which never ma- terialized, appeal should be al- lowed and sentence requested by Crown at trial imposed. R. v. Horgan (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and S.E. Pepall J.A., CA C61747) 129 W.C.B. (2d) 308. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Cumulative effect of officer's observations amounted to rea- sonable and probable grounds Accused was convicted of pos- session of 48 pounds of marijua- na for purpose of trafficking. Ac- cused was driver of vehicle that was pulled over by police officer on highway. In cardboard box in cargo area of vehicle, police located several bags of packaged marijuana. Genesis of traffic stop was report from another police officer about unsafe driving and observations by arresting officer who followed vehicle for sev- eral kilometers. Both occupants seemed nervous. Accused kept looking back towards two large black suitcases in rear of vehicle. There were several cell phones on console. Officer detected strong smell of raw marijuana from ve- hicle. As he walked by vehicle to return to his cruiser, officer no- ticed cardboard box with Ziploc bags protruding from it contain- ing material of shape and size of marijuana. Officer returned to vehicle driven by accused and arrested accused and her pas- senger. Accused was convicted of possession of marijuana for purposes of trafficking. Accused appealed her conviction. Ap- peal dismissed. Traffic stop and demand for documentation was fully justified under s. 216(1) of Highway Traffic Act (Ont.). Trial judge made no error in conclud- ing that investigating officer had reasonable and probable grounds to arrest accused for possession of marijuana. Cumulative effect of officer's observations amount- ed to reasonable and probable grounds to arrest accused. It fol- lowed that search of vehicle inci- dent to lawful arrest and carried out in reasonable manner was constitutionally valid. R. v. Pham (Apr. 7, 2016, Ont. C.A., David Watt J.A., Gloria Ep- stein J.A., and M. Tulloch J.A., CA C59824) 129 W.C.B. (2d) 325. Mental Illness REVIEW Ontario Review Board ordered that patient remain under conditional discharge Conditions in discharge were substantially reduced from those in earlier order. Patient appealed from decision of Ontario Review Board ordering that he remain under conditional discharge. Appeal dismissed. Unanimous decision of Board was principally based on opinion of patient's treating physician who was of opinion that accused continued to pose significant risk. That doc- tor was concerned that, if granted absolute discharge, patient would discontinue his medication and testified that if this occurred and patient became ill there was no question he would also become dangerous. Since patient's medi- cation regime had recently been changed, doctor thought it advis- able to monitor it under condi- tional discharge order, at least for one more year. Board's decision to accept this opinion was not unreasonable. Board was alive to patient's encouraging improve- ments and responded to them by deleting several restrictions on patient's liberty, including non- medical use of alcohol or drugs and submitting urine samples to hospital. Board recorded and ac- cepted patient's doctor's advice that patient probably needed good year of treatment before making any significant change to current disposition. Delgado-Cruz, Re (Apr. 8, 2016, Ont. C.A., J.C. MacPherson J.A., J. MacFarland J.A., and H.S. LaForme J.A., CA C60827) 129 W.C.B. (2d) 360.

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