Law Times

Law Times • sepTember 12, 2016 Page 15 www.lawtimesnews.com CASELAW from which appeal was taken was interlocutory. Motion judge's re- marks that statement of defence and counterclaim were nullities, and about spoliation as obiter, ex- plained why he was not inclined to exercise any discretion to allow matter to proceed despite bank- ruptcy of one of defendants. Treats International Fran- chise Corp. v. 2247383 Ontario Inc. (June 2, 2016, Ont. C.A., R.G. Juriansz J.A., David Brown J.A., and L.B. Roberts J.A., CA M46387 (C61544)) 268 A.C.W.S. (3d) 278. Consumer Protection LIMITATION PERIOD Basic limitation period had no application to statutory framework for consumer credit reporting Applicant brought application for order that two consumer re- porting agencies remove debts over two years old that were shown on his credit report, where no legal action had been com- menced or judgment obtained in respect of debts. Applicant relied on provisions of Limitations Act, 2002 (Ont.) (LA), and in particu- lar basic limitation period of two years applicable to commence- ment of proceeding in respect of claim. Applicant took position that two-year limitation period should apply in interpreting pro- visions of Consumer Reporting Act (Ont.) (CRA). Applicant's application was dismissed. Ap- plicant appealed. Appeal dis- missed. Application judge did not err in his dismissal of appli- cant's application, on basis that basic limitation period had no application to statutory frame- work for consumer credit report- ing in province, and there was no violation by consumer report- ing agencies of requirements of CRA. LA did not apply to CRA, whether expressly or by impli- cation. Reporting of debts after limitation period had passed was not inconsistent with purposes of CRA, and was expressly con- templated by its terms. Grant v. Equifax Canada Co. (June 23, 2016, Ont. C.A., Paul Rouleau J.A., K. van Rens- burg J.A., and M.L. Benotto J.A., CA C61664) Decision at 259 A.C.W.S. (3d) 673 was affirmed. 268 A.C.W.S. (3d) 337. Damages ECONOMIC LOSS Trial judge properly interpreted intentions of parties in forming contract Plaintiff businessman, defendant promoter P, and defendant con- tractor B entered into original agreement in 1988. After initial development of mining project, parties had disagreement. Busi- nessman acquired assets of both defendants and proceeded with project himself. Businessman brought claims against defen- dants including for recovery of funds advanced, as well as dam- ages for alleged losses from tax and grant benefits. These claims were all dismissed. B successfully counterclaimed for loss on sale of heavy equipment purchase, but was unsuccessful in other claims. Both defendants claimed punitive damages against busi- nessman, but this claim was dis- missed. Businessman claimed that agreement of purchase was in place, transferring interests to him and his company. Business- man appealed from judgment. Appeal dismissed. Trial judge did not err in finding that option agreement included automatic re- version of claims to P. Trial judge properly interpreted intentions of parties in forming contract. Evi- dence from P showed intention that legal title could only pass to businessman's company if all of businessman's obligations were fulfilled. Parties were not in un- equal bargaining positions, and it did not make sense that P would give up claims for small royalty. Option agreement was properly evaluated given nature of simi- lar agreements. Appeal was dis- missed with $20,000 costs pay- able to defendants. 798839 Ontario Ltd. v. Platt (June 20, 2016, Ont. C.A., G.R. Strathy C.J.O., R.A. Blair J.A., and P. Lauwers J.A., CA C58414) Decision at 242 A.C.W.S. (3d) 955 was affirmed. 268 A.C.W.S. (3d) 351. Judgments and Orders SETTING ASIDE Motion judge did not apply wrong legal test for motion to set aside dismissal order Plaintiff registered six claims for liens against properties to which it supplied building materials under contracts with defendant. Defendant disputed amount claimed and obtained orders va- cating claims for lien after pay- ment into court of $331,497.21 for security. Plaintiff commenced six lien actions in 2001 and action for breach of trust in 2003. Plaintiff 's actions were dismissed at status hearing in 2014 for litigation de- lay, and its motion for order set- ting aside dismissal orders was dismissed since it had provided no reasonable explanation for de- lay. Plaintiff appealed dismissal of its motion to set aside orders. Appeal dismissed. Motion judge did not apply wrong legal test for motion to set aside dismissal or- der made pursuant to R. 48.14(7) of Rules of Civil Procedure (Ont.). Motion judge focused on and applied correct legal prin- ciples. Plaintiff did not provide adequate explanation for 13-year delay, during which time defen- dant's funds remained tied up in court. At time of status hearing, there was two-year period for listing action for trial, but plain- tiff 's delay far exceeded presump- tive time period in R. 48.14 and it did not file cogent evidence on its motion to set aside. Motion judge accepted that plaintiff had been misled by its counsel about status of actions, but concluded that it failed to provide adequate expla- nation for delay. As part of its ob- ligation to move its construction lien actions along, plaintiff had to take reasonable steps to supervise its counsel's work to ensure that there would be expeditious de- termination of actions on their merits. Plaintiff did not file con- crete evidence describing steps it took to supervise its counsel's handling of its actions. Motion judge's conclusion that plaintiff failed to provide acceptable ex- planation for its delay was agreed with. Her decision to dismiss plaintiff 's motion seeking to set aside order dismissing its seven actions was upheld. Southwestern Sales Corp. v. Spurr Bros. Ltd. (July 26, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., David Brown J.A., and Grant Huscroft J.A., CA C61458) Decision at 260 A.C.W.S. (3d) 355 was affirmed. 268 A.C.W.S. (3d) 280. Mental Health INCOMPETENT PERSONS There was ample basis for finding of patient's treatment incapacity Patient's attending physician determined that patient was in- capable of consenting treatment and served him with Form 33 under Mental Health Act (Ont.). Patient applied to Consent and Capacity Board to review find- ing of incapacity. As patient's at- tending physician was not avail- able, evidence of patient's inca- pacity was given at hearing by patient's former physician. Board unanimously confirmed finding of patient's treatment incapacity. Patient's appeal was allowed and new hearing ordered on basis that Board should have had pa- tient's current attending physi- cian before it to give testimony. Former physician appealed. Appeal allowed. Hearing might well have unfolded in different fashion or been adjourned for short time had patient objected to evidence of former physician at that time, which he did not. Board was in best position to weigh evidence of former physi- cian, knowing he did not sign Form 33. There was ample basis in record for Board to conclude that patient was incapable with respect to proposed treatment. Board's decision was reasonable. Ferencz v. Vissers (July 11, 2016, Ont. C.A., Paul Rouleau J.A., C.W. Hourigan J.A., and G. Pardu J.A., CA C61861) 268 A.C.W.S. (3d) 448. Partnership DISSOLUTION Order flowed naturally from litany of non-compliance Order dissolved partnership between appellant and respon- dent. Order declared appellant had no interest in property. Ap- pellant was ordered to pay re- spondent for his contribution to second property. Respondent was appointed as receiver of all partnership property. Appellant had history of non-compliance with court orders over two years. Matter was on uncontested ba- sis. Appellant appealed. Appeal dismissed. There was no error in order. Order f lowed naturally from litany of non-compliance that preceded it. Verma v. Nagra (June 28, 2016, Ont. C.A., J.C. MacPher- son J.A., Janet Simmons J.A., and P. Lauwers J.A., CA C58705) 268 A.C.W.S. (3d) 458. Ontario Criminal Cases Appeal SENTENCE APPEAL Trial judge's determination of credit for pre-trial custody was entitled to deference Accused was engaged with his son in criminal joint venture that involved large amount of cocaine and was arrested pursuant to ma- jor police operation. While on judicial interim release, accused was arrested and charged with new offences and was detained in custody on new charges and charges currently before court for total of 608 days. Accused was convicted of trafficking in cocaine. At sentencing hearing, accused brought application that s. 719(3.1) of Criminal Code vio- lated s. 7 of Canadian Charter of Rights and Freedoms. Accused's Charter application was granted; accused was sentenced to 5.5 years' imprisonment, less credit of 730 days. Portion of s. 719(3.1) of Code that removed ability to determine credit for pre-sentence custody violated s. 7 of Charter and was of no force and effect in this proceeding only. Accused was given some credit for his pre- sentence custody as he might have lost eligibility for early release and parole, but not at rate of 1.5-to-1. Accused had extensive criminal record, he did not avail himself of any available programs while in remand, and he was sanctioned for violent assault on another prisoner while in jail. Accused was given 730 days' credit for pre-sentence credit, which was approximately 1.2 days' credit for each day of pre-sentence cus- tody. Accused appealed. Appeal dismissed. While sentence was clearly at high end of range, there was no error in principle. Trial judge considered circumstances of accused including his very lengthy criminal record and ag- gravating fact that offence was committed with his son. Trial judge's determination of credit for pre-trial custody was entitled to deference. R. v. Jupiter (June 1, 2016, Ont. C.A., J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A., CA C61092) Deci- sion at 123 W.C.B. (2d) 287 was affirmed. 131 W.C.B. (2d) 185. Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE There was no breach of s. 8 of Charter in breath sample demand Accused was charged with im- paired driving offences, stem- ming from car accident which injured three occupants of an- other vehicle. Other charges were stayed or dismissed, leaving three counts of impaired driving caus- ing bodily harm. Accused was convicted at trial of these charges. Accused claimed that statements he made to police at scene should not have been admitted as evi- dence. Accused claimed he was compelled to make statements before being able to consult with counsel. Accused claimed that no proper breath sample de- mand was made, and that breath sample results should not be ad- mitted. Accused appealed from conviction on this basis. Appeal dismissed. Accused was under no reasonable belief at time of statement that he was compelled to report accident. Accused was not told by officer he had to make statement. Accused did not ap- ply at trial to exclude statements under applicable sections of Ca- nadian Charter of Rights and Freedoms. This ground of appeal failed as result. Third officer in- advertently failed to read breath sample demand to accused at scene. Demand was only made after technician reminded of- ficer of need to do so, at police station. Technician's demand for breath sample was based on reasonably formed grounds, and was done within three-hour time limit from offence. As technician had no prior notice of what had taken place, demand was made as soon as practicable. There was no breach of s. 8 of Charter in de- mand that was made. R. v. Guenter (July 19, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C55574) 131 W.C.B. (2d) 129. Defences SELF-DEFENCE In assessing self defence, trial judge failed to pay close attention to entire factual context Accused lived on ground f loor of house separated into two apart- ments. M and B went to residence of upstairs tenant, S, to purchase marijuana. There was dispute, S called for help, and accused got S into accused's apartment. Ac- cused went back upstairs and saw M carrying shotgun. Accused saw B with his back to accused, and accused told him to "freeze." B began to turn, and accused shot B with handgun. Accused was con- victed of intentional discharge of firearm with intent to wound and aggravated assault. Accused ap- pealed. Appeal allowed; new trial ordered. In assessing self defence, trial judge failed to pay close at- tention to entire factual context, making palpable and overrid- ing errors. Trial judge parsed ac- cused's reactions down to split- second and held him to standard of perfection, informed by his hindsight knowledge that B was unarmed and that M had already left house. Trial judge focused ex- cessively on whether accused was credible witness. Trial judge made inconsistent statements that ac- cused did not believe that B was using or threatening force against him, and that accused was prob- ably feeling fear for his life and fear for his friend. R. v. Cunha (June 21, 2016, Ont. C.A., J.C. MacPherson J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C59489) 131 W.C.B. (2d) 141.

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