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October 3, 2016

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Law Times • OcTOber 3, 2016 Page 15 www.lawtimesnews.com CASELAW judge held there was no material change in circumstances, there- fore no jurisdiction to vary final order. Father appealed. Appeal dismissed. Concession made by mother, consenting to part of what father sought, did not amount to material change in circumstances. Motion judge determined that father's work arrangements had not affected his ability to meet needs of chil- dren. Finding that there had been no material change in cir- cumstances was dispositive of appeal. Easson v. Blase (July 29, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., David Brown J.A., and Grant Huscroft J.A., CA C61154) Decision at 259 A.C.W.S. (3d) 315 was affirmed. 269 A.C.W.S. (3d) 114. Limitations INSURANCE Limitations period raised significant credibility issues requiring trial Plaintiff insured DM owned home that was insured by de- fendant insurer F Co., arranged by defendant broker M Ltd.. Home was allegedly damaged by negligent workmanship of contractor. Insured brought ac- tion against insurer on basis of breach of contract of insurance and against broker on basis of breach of duty, almost three years after discovering damage to property. Insurer and broker brought motions for summary judgment dismissing claim. Trial judge granted motions and dismissed action, on basis that damage was excluded by policy. Court of Appeal allowed insured's appeal. Court of Ap- peal held that resulting damage was covered by policy. Court of Appeal returned question of whether insured's action was barred by reason of Limitations Act, 2002 (Ont.) to motion judge for determination. Hearing was held to determine whether to grant insurer and broker's mo- tion for summary judgment on basis of expiry of limitation period. Motion dismissed on basis of limitation period issue. Limitations period issue raised significant credibility issues which required trial in order to reach just and fair determina- tion. It was not appropriate to make finding of fact with re- spect to certain conversations in context of motion for summary judgment. Monk v. Farmers' Mutual Insurance Co. (May 26, 2016, Ont. S.C.J., E.J. Koke J., CV-11- 093) Additional reasons to deci- sion at 244 A.C.W.S. (3d) 694. 269 A.C.W.S. (3d) 172. Mortgages POSSESSION No evidence that mortgage was void ab initio for want of compliance with Planning Act (Ont.) Mortgagor granted mortgage on property for sum of $1,155,000 to secure loan. Mortgagor de- faulted on payments and, in March 2016, mortgagee ob- tained default judgment for bal- ance owing and possession of property. Mortgagee obtained writ of possession in April 2016 and sheriff served mortgagor with notice to vacate property. Mortgagor's motion to set aside notice to vacate was dismissed. Mortgagor brought motions for stay of notice to vacate pending appeal and to set aside default judgment. Motions dismissed. While mortgagor's motion was brought promptly, there was no plausible explanation for de- fault. Mortgagor evaded service of claim and was clearly aware of mortgagee's action. Mortgag- or's argument that principals of mortgagor were holders of first mortgage pursuant to general security agreement was without merit as including real property in general security agreement and registering it under pro- visions of Personal Property Security Act (Ont.) was not no- tice to subsequent mortgagee of property. There was no evi- dence mortgage was void ab ini- tio for want of compliance with Planning Act (Ont.). If default judgment was set aside matter would likely take months, if not years, to reach trial, without promise of payment of any sort and with potential for mort- gagee's debt to outgrow value of property. Further delay in mortgagee's enforcement would not ref lect well on administra- tion of justice. Apea Investment Group Inc. v. 917488 Ontario Inc. (June 29, 2016, Ont. S.C.J., R.D. Gordon R.S.J., C-15-0001) 269 A.C.W.S. (3d) 176. Substitute Decisions PROPERTY Capacity assessor's opinion on undue inf luence entirely inadmissible Parties were brothers who had joint continuing power of at- torney (CPOA) to manage mother's property. Dispute arose over use of funds and applicant refused to consent to transfer of funds for fear re- spondent would misappropri- ate them, which left mother with insufficient monies to pay expenses. To free up funds, re- spondent obtained new CPOA granting him sole authority, and court order for release of $50,000, which was now com- pletely used up. Applicant ob- tained capacity assessment that found mother incapable of managing property weeks after new CPOA was executed, but not incapable of granting power of attorney. Applicant alleged undue inf luence. Ap- plication for order new CPOA was invalid or for appointment of interim professional guard- ian over mother's property. Application dismissed. Given assessor's opinion mother had capacity to grant power of at- torney, fact respondent drafted and had mother sign it with- out independent legal advice not suspicious circumstances. Statements mother made to ap- plicant were uncorroborated and not unreasonable given what had occurred with her funds being tied up. Capacity assessor's opinion on undue in- f luence entirely inadmissible as beyond scope of expertise and double hearsay. CPOA valid and there was nothing inap- propriate about respondent's conduct to warrant appointing professional guardian. Respon- dent to pass accounts. Vanier v. Vanier (Jul. 14, 2016, Ont. S.C.J., Penny J., 03- 61/15) 269 A.C.W.S. (3d) 190. Torts LIBEL AND SLANDER Trial judge's finding of qualified privilege was tainted by erroneous findings Sister claimed that brother sexually and physically abused her starting from when she was four or five years old and con- tinuing until she was 20 years old. Sister's memory of inci- dents remained repressed until she was 50 years old. Sister sent communications about alleged assaults to family members, lawyers and former high school friend. Sister brought action seeking damages for physical and sexual assault, and brother counterclaimed for damages for defamation. Trial judge found that parties were equally credi- ble as witnesses and that version of events were equally compel- ling. Trial judge relied on sister's expert evidence to resolve litiga- tion and he found brother liable to sister for sexual and physical assault and she was awarded damages. Trial judge found that even if sister's allegations were not accepted as true, defence of qualified privilege applied to all communications to third parties regarding allegations of physical and sexual abuse and counterclaim was dismissed. Brother appealed. Appeal al- lowed; action dismissed; coun- terclaim allowed. Statements sister made could not be justi- fied as having been true and she failed to establish defence of justification. Trial judge's finding of qualified privilege was tainted by erroneous find- ings that sister's allegations were true based on support of expert's opinion. Trial judge erred in law in finding that all recipients of communications, including sister's former friend, had duty or interest in receiving communications. There was no duty or interest on part of sis- ter's former high school friend to receive communications. Sis- ter failed to establish defence of qualified privilege. Brother was awarded damages of $5,000 for defamation. Whitfield v. Whitfield (July 20, 2016, Ont. C.A., K.M. Weiler J.A., K. van Rens- burg J.A., and L.B. Roberts J.A., CA C58883) Decisions at 240 A.C.W.S. (3d) 513 and 254 A.C.W.S. (3d) 297 were reversed. 269 A.C.W.S. (3d) 193. Ontario Criminal Cases Charter of Rights ENFORCEMENT OF RIGHTS Police were negligent in not waiting to obtain warrant before search Police officers suspected that accused was casing gas stations for robbery and wanted to de- tain him for investigative pur- poses. When police identified themselves to accused he ran away. Police officer searched car accused left behind and found handgun and Taser. Accused was charged with several fire- arms offences. Trial judge found that officers had reasonable grounds to detain accused and reasonable grounds to conduct search of car. Trial judge also ac- cepted that accused had aban- doned his vehicle within mean- ing of s. 221(1) of Highway Traf- fic Act (Ont.) ("HTA") and that police therefore had authority to conduct inventory search of vehicle. Trial judge found that in event he was wrong about constitutionality of search that gun and Taser should never- theless not be excluded under s. 24(2) of Canadian Charter of Rights and Freedoms. Ac- cused was convicted. Accused appealed. Appeal allowed; ac- cused acquitted. Trial judge's s. 24(2) analysis was f lawed and not entitled to deference. Admission of evidence would bring administration of justice into disrepute. There was no evidence of wilful misconduct on part of police officers, but they were negligent in not wait- ing to obtain warrant before beginning search. Police con- duct could not be categorized as inadvertent and it fell closer to more serious end of spectrum. There was no common law au- thority for search, nor any basis for finding vehicle to have been abandoned within meaning of s. 222(1) of HTA. Taser and handgun were reliable and ob- jective pieces of evidence and Crown's case could not succeed if they were excluded. R. v. Dunkley (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hou- rigan J.A., CA C59524) Decision at 111 W.C.B. (2d) 822 was re- versed. 131 W.C.B. (2d) 471. Police POWERS Police entry was not unlawful Neighbour of male accused heard him threaten to kill fe- male and called 9-1-1. Police arrived and woman refused to allow them to enter. Police were about to break open door when woman appeared at door and she stepped outside to speak to them. Police entered home without permission and ob- served marijuana and other drugs and they also found ac- cused. Trial judge decided that police entry was unlawful, he excluded seized drugs as evi- dence and acquitted accused. Crown appealed acquittal. Ap- peal allowed. Police acted with- in law when they entered prem- ises as they did. Judge erred and new trial was necessary. R. v. Lowes (June 22, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and D.M. Brown J.A., CA C57703) 131 W.C.B. (2d) 449. Sexual Offences SEXUAL ASSAULT Trial judge expressly stated that trial was not credibility contest Accused was charged with sex- ual touching of person under 14 years of age, counselling to sexually touch, sexually touch- ing person in relationship of dependency, and sexually as- saulting complainant between 2003 and 2010, including pe- riods when she was under 14 years of age. Conduct included kissing, fondling and partial intercourse and accused was in position of trust in relation to complainant. Accused was also charged with one count of assault and one count of assault with weapon by hitting com- plainant with broom handle. Complainant was 21-years old at trial and her allegations were denied by her mother and now 19-year-old brother. Children's Aid Society was called about complainant's bruises on her arm and she did not immedi- ately tell authorities accused was perpetrator. Complainant's brother confirmed her testimo- ny that accused ordered him to watch her constantly as he wanted to make sure complain- ant remained virgin partly due to his Hindu religion. Brother's testimony was contradicted by accused as brother testified that accused was never alone with complainant. Accused found guilty. Accused appealed from conviction and sentence. Appeals dismissed. Findings of guilt would not be interfered with on any basis advanced. At outset, conclusion and at least once during course of reasons, trial judge made explicit refer- ence to decision in W.(D.) and expressly stated that trial was not credibility contest. Trial judge considered credibility of each witness who testified, found complainant worthy of belief and defence witnesses at once incredible and their evi- dence unreliable. Mere fact that trial judge reviewed evidence of complainant and defence wit- nesses consecutively did not es- tablish that he considered case credibility contest in view of his express statements to con- trary. Reading reasons of trial judge as whole in functional way, it could not be said that trial judge applied any improp- er principle in his assessment or misapprehend evidence ad- duced at trial. R. v. K. (M.) (July 25, 2016, Ont. C.A., David Watt J.A., S.E. Pepall J.A., and M. Tulloch J.A., CA C56170) Decision at 100 W.C.B. (2d) 740 was affirmed. 131 W.C.B. (2d) 547.

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