Law Times

Law Times • sepTember 26, 2016 Page 15 www.lawtimesnews.com CASELAW Raba v. Jacquesson (July 20, 2016, Ont. S.C.J., G. Dow J., CV-14-499928) 268 A.C.W.S. (3d) 884. Real Property CO-OWNERSHIP On interim basis, parties were jointly responsible for preservation of properties Parties were friends who decid- ed to go into business together. Parties jointly purchased res- taurant property and music hall. Business relationship soured and applicant brought application for partition and sale of properties. After sell- ing his home, applicant moved some of his belongings into music hall and took steps to de- regulate it as music venue. Con- sent order was made prohibit- ing applicant from residing in or being at either property after 10:00 p.m. or before 7:00 a.m.. Respondent brought motion seeking removal of applicant's personal property from hall and authorization to operate hall as music and entertainment venue. Motion granted in part. Applicant attended numerous times at two properties in viola- tion of consent order. Applicant engaged in pattern of behaviour of harassment and interference at restaurant which resulted in loss of tenant and loss of in- come. Applicant poisoned rep- utation of joint venture run out of hall and hobbled any chances that respondent had of continu- ing going concern out of hall. On interim basis, parties were jointly responsible for preserva- tion of properties and ongoing payment of expenses in a timely fashion. Trial date was to be ex- pedited for determination of all other issues. Chute v. Pryor (July 5, 2016, Ont. S.C.J., Thomas J. Carey J., Chatham 5992/14) 268 A.C.W.S. (3d) 886. Sale of Land DEPOSIT Total deposits reached level where complete forfeiture became unconscionable Vendor and purchaser entered into agreement for purchase of warehouse property for pur- chase price of $10,225,000. Pur- chaser made initial deposits of $300,000. To secure extensions to closing date, purchaser paid further deposit of $450,000. Purchaser could not obtain fi- nancing and did not complete purchase. Vendor brought ap- plication for declaration that purchaser was in breach of agreement of purchase and sale and forfeiture of deposit. Ap- plication granted in part. There was no evidence that vendor suffered any damages. Final deposit of $450,000 to obtain extension of closing date was disproportionate when com- bined with first two deposits of $300,000. Total deposits reached level where complete forfeiture became unconsciona- ble, in absence of any evidence concerning damages suffered by vendor. Forfeiture was grant- ed in amount of $350,000. Redstone Enterprises Ltd. v. Simple Technology Inc. (July 8, 2016, Ont. S.C.J., J.C. Kent J., CV 16-9) 268 A.C.W.S. (3d) 888. Wills and Estates WILLS No basis for finding there was any undue inf luence exercised on testator Testator and D lived in com- mon law relationship before marrying in 1981. In 1983, testator and D prepared form wills without input of solicitor, in which testator provided that he gave entire estate to D, and that if she predeceased him, then his estate would be trans- ferred to his two step-children in equal shares. D died in 2007, and two days after her death, testator attended at office of solicitor and prepared will in which he revoked all prior wills and named his living biologi- cal children as his beneficiaries. Testator executed continuing power of attorney for property and personal care in which he appointed his children RT and PT as attorneys for his prop- erty and personal care. RT had driven testator to solicitor's of- fice to make will in 2007 and re- mained in room with solicitor while testator provided instruc- tions concerning will. RT and PT attended with testator when testator executed 2007 will. Testator died in 2009. Plaintiffs, who were stepchildren named in 1983 will, commenced ac- tion challenging validity of 2007 will on basis that testator lacked testamentary capacity to make will and was subject to undue inf luence exercised on him by RT and PT. Issue for determination was whether RT and PT exercised undue inf lu- ence on testator. There was no basis for finding that there was any undue inf luence exercised on testator and last will and tes- tament dated December 2007 was freely and voluntarily made by testator. Facts raised suspi- cious circumstances and pre- sumption of undue inf luence, but presumption was rebutted. Testator took initiative to make new will and asked his daugh- ter in law to make appointment for him to see French-speaking solicitor. None of beneficiaries knew about testator's intentions prior to him providing instruc- tions to solicitor. Provisions of will were not discussed between testator, RT or RT's wife prior to testator providing instructions to solicitor. Testator was asked repeatedly by solicitor if his instructions to leave his estate equally to his four named bio- logical children were what he wished and testator replied in affirmative. Solicitor's notes did not identify any concern about RT being in office with testator or any concern about exercise by RT of inf luence on testator. Lavoie v. Trudel (June 27, 2016, Ont. S.C.J., E. Gareau J., C-456-10) 268 A.C.W.S. (3d) 899. Ontario Criminal Cases Breathalyzer TIME ELEMENT Demand for alcohol screening device sample was made forthwith Accused was convicted of driv- ing "over 80." Accused applied for leave to appeal summary conviction appeal decision up- holding his conviction, arguing that trial judge erred in finding that arresting officer's demand that accused provide sample of breath into alcohol screen- ing device ("ASD") was made "forthwith", as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relat- ing to whether ASD sample has been taken "forthwith" are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to ad- ministration of justice beyond four corners of this case. No er- ror was found in summary con- viction appeal judge's conclu- sion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for ac- cused to consult with counsel during 13-minute delay. Evi- dence supported arresting offi- cer's assumption that nearby of- ficer would deliver ASD shortly. R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325. Defences SELF-DEFENCE Self-defence only available if actions were reasonable in circumstances Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, posses- sion of weapon for purpose dan- gerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transac- tion (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complain- ant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complain- ant in effort to defend his girl- friend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly ad- mitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered con- viction on aggravated assault charge. Defence is only available if actions of accused were rea- sonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if ac- cused's evidence was accepted in its entirety, once he wres- tled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused's conduct went far beyond what could be con- sidered reasonable or necessary. No error was seen in trial judge's consideration of this defence. R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Deci- sion at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Finding of intent was crucial issue and dispositive of agency defence Accused was convicted of pos- session for purpose of traffick- ing in relation to four boxes of fentanyl patches, each contain- ing five 100-microgram patch- es. Accused argued at trial that he was holding bag as agent for his mother. Trial judge rejected this submission and found him guilty. Accused appealed his conviction. Appeal dismissed. When trial judge concluded that if accused had possessed fentanyl as agent for his mother, agency would have terminated once accused took his mother home, he was responding to, and rejecting, submission made by defence at trial that accused was holding drugs for his moth- er without intent to sell. To ex- tent that trial judge may have erred with respect to legal defi- nition of termination of agency, this was immediately remedied in his reasons when he found that regardless of whether ac- cused's mother forgot drugs, accused "was about to engage in some form of trafficking" when arrested. This intent was crucial issue and dispositive of agency defence. Trial judge rejected evidence that, at point when accused entered car with fentanyl, he was just holding drugs for his mother, and rejec- tion of this evidence was fatal to agency submission. Accused had fentanyl in his hand when he entered other car in parking lot and whether it was legally dispensed or not made no dif- ference in light of trial judge's finding that there was inten- tion to sell it. Comment that there was no evidence as to why accused's mother needed stronger prescription for pain was in context of narrative and entirely irrelevant to essential elements of offence: trial judge did not reverse standard of proof. Had errors been found to be significant they would have been cured via curative proviso. R. v. Lu (June 16, 2016, Ont. C.A., K. Feldman J.A., M.L. Ben- otto J.A., and B.W. Miller J.A., CA C60181) 131 W.C.B. (2d) 349. Prisons PENITENTIARY REGULATIONS Review board did not fail to take into account relevant matters Accused was placed in detention following criminal proceed- ings. Review board found that accused posed significant risk and ordered continued deten- tion at specific facility. Accused appealed. Appeal dismissed. Hospital adequately assessed diagnosis and did not need to perform additional psychologi- cal tests. Review board did not fail to take into account rel- evant matters. Accused should not be moved to new facility as security at current facility was required. No reason to interfere with board's disposition. Shahinjou, Re (July 11, 2016, Ont. C.A., Paul Rouleau J.A., C.W. Hourigan J.A., and G. Par- du J.A., CA C61347) 131 W.C.B. (2d) 387. Release From Custody RELEASE PENDING APPEAL Public would not lose confidence in administration of justice if accused was released Accused was police officer, who was convicted of attempted murder in death of individual. Accused was sentenced to six years' imprisonment as result. Immediately after sentencing, accused announced intention to appeal both conviction and sentence. Accused claimed that he should be released from cus- tody pending appeal. Crown claimed application was frivo- lous, and that public interest required detention. Accused applied for release. Application granted. There was clearly seri- ous issue in appeal, so Crown claim of frivolousness was not merited. It was conceded that accused was not at risk to re- offend. Subject offence was se- rious in nature. However, case was novel as officer was con- victed of attempted murder, on basis of second round of shots fired. First round of shots fired were considered justified. Ac- cused had arguable appeal as to whether verdict was inconsis- tent. Accused had assured court that appeal would be perfected and pursued in timely fashion. Accused had complied with re- lease orders, pending trial. Pub- lic would not lose confidence in administration of justice if ac- cused was released. R. v. Forcillo (July 29, 2016, Ont. C.A., E.E. Gillese J.A., In Chambers, CA M46749 (C62370)) 131 W.C.B. (2d) 393.

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