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Aug 20, 2012

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Law Times • augusT 20, 2012 ONTARIO CIVIL CASES Injunctions Motion by plaintiff for injunctive relief against defendants. Defen- dants were former employees of plaintiff. Plaintiff was in business of manufacturing plastic bottles. Plaintiff determined that one day before his departure from his employment with plaintiff, defendant had transferred some 8,465 files containing important confidential and proprietary in- formation of plaintiff. Defendants purchased bottle manufacturing machine. There was serious issue to be tried. Evidence suggested that defendants were in breach of their employment contrac- tual obligations and common law duty of confidence to plaintiff not to disclose or use trade secrets and confidential information. Evi- dence indicated that irreparable harm would be experienced by plaintiff if injunctive relief was not granted. Harm caused to plaintiff could not be quantified in mon- etary terms. Plaintiff was put in serious jeopardy by action of defendants in misappropriating confidential business informa- tion through permanent market loss and irrevocable damage to its business. Injunction was appro- priate given competing interests of parties. Corona Packaging Inc. v. Singh (May 7, 2012, Ont. S.C.J. (Comm. List), Cumming J., File No. CV- 12-9710-00CL) 214 A.C.W.S. (3d) 594 (5 pp.). action of defendants in misappropri- ating business information INTERLOCUTORY RELIEF Plaintiff put in serious jeopardy by Insurance Plaintiff owned property. Proper- ty was rented to company in 1992 and was abandoned in 2010. Pol- lutants were found on property. Plaintiff claimed company caused environmental contamination to plaintiff' As stranger to policy plaintiff had no rights to claim or demand benefits LIABILITY INSURANCE ing gas station on property for 18 years. Damages sought were clean up costs of property. Company went bankrupt. Only possible recovery was against company' s property while operat- insurer. Insurer denied company had coverage under policy for plaintiff' s application for declaration in- surer was obliged to indemnify or defend company under insur- ance policy. Insurer brought ap- plication for declaration insurer was not obliged to indemnify or defend company under policy. Plaintiff' s claim. Plaintiff brought mature. There was no lis between plaintiff and insurer. As stranger to policy plaintiff had no rights to claim under policy or demand benefits under policy. Plaintiff had not yet obtained judgment against company and plaintiff could not succeed on application at time. Insurer' s application was pre- allowed declaring insurer was under no obligation to defend s application was or indemnify tenants for claims made in action. There was noth- ing to suggest insurer' tion was not consistent with clear and plain language of policy. It was commercially reasonable and sensible interpretation. Plaintiff' s interpreta- claim against tenants was not cov- ered under policy. Demarco v. 997366 Ontario Ltd. (Apr. 3, 2012, Ont. S.C.J., Ricchetti J., File No. CV-12-00877-00; CV- 12-00489-00) 214 A.C.W.S. (3d) 599 (10 pp.). s Application, under Rule 4 of Rules of Civil Procedure (Ont.), for interpretation of zoning by- law. Applicant was owner of lands in city upon which it operated as existing church. Applicant sought to acquire vacant adjoining land. Applicant sought declaration that adjoining lands and prem- ises when merged with applicant' churches to lots on which they stood at time of passage of by-law No intent to limit existing Planning ZONING lands could be used by exist- ing church for church purposes. Lands were zoned agricultural which permitted "existing church- es" s existing church for church pur- poses. By-law clearly sought to preserve agricultural land while at same time exempting existing churches, not lands upon which church existed, but existing build- ings from provisions of by-law. There was no intent to limit exist- ing churches to lots on which they stood at time of passage of by-law. Bethany Community Church of St. Catherines v. St. Catherines (City) (Apr. 18, 2012, Ont. S.C.J., Lof- chik J., File No. 53479/12) 214 A.C.W.S. (3d) 621 (10 pp.). s lands, could be used by received on behalf of all beneficiaries Claim by estate trustees for dec- laration that defendants hold one-third interest in yacht in trust for estate, payment of $88,000, damages for out of pocket ex- penses of $25,000 and punitive damages. Settlement included acknowledgements that estate was one-third owner of yacht, yacht would be sold on consent and estate would receive $88,000 for interest in vessel. Parties re- ceived cheques for their shares of sale proceeds from broker but cheques could not be cashed. De- fendants attended at broker' Proceeds obtained by defendants Trusts and Trustees TRUSTS fice, demanded payment and re- ceived $114,628. Defendants did not advise estate trustee of receipt of $114,628. Judgment for estate of $57,314. Parties agreed to have payment of settlement made by sale proceeds. Estate trustees de- manded payment directly from defendant only aſter cheque from broker was dishonoured. Settle- ment terms did not obligate de- fendants to pay $88,000 or other- wise create debt of $88,000 owed s of- CASELAW by them to estate. Defendants at all times remained trustees with respect to yacht and related sale proceeds. Proceeds obtained by defendants from broker were re- ceived on behalf of and must be shared with all beneficiaries. Melito Estate v. Melanson (Apr. 30, 2012, Ont. C.J., Fitzpatrick J., File No. CV-07-2183-00) 214 A.C.W.S. (3d) 650 (26 pp.). ONTARIO CRIMINAL CASES Appeal Despite sentencing judge's factual SENTENCE APPEAL clared that lands when acquired by applicant and merged with applicant' . Application granted. It was de- Appeal from sentence. Accused was convicted of two counts of sexual assault on victims he had rendered unconscious with stupe- fying drug, one count of adminis- tering stupefying drug with intent to commit sexual assault, and one count of unlawful possession of property. He was sentenced to 5 years' incarceration less pretrial custody at 2-for-1 ratio and made subject mistake, sentence actually imposed fit for offences sion Order ("LTSO") for period of 7 years following his release. Accused continually breached LTSO. Appeal turned on error by sentencing judge in calculating accused' to Long-Term Supervi- custody. As he had been released from imprisonment in Septem- ber 2011 on statutory release, he sought to reduce duration of LTSO. Sentencing judge intended to give accused 1.5 to 1 credit for presentence custody. Proper cred- it would have been 1,009 days. Sentencing judge granted accused 228 days (about 7.5 months) less credit than he might have other- wise received. Accused spent total of 1,337 days (664 days on his first breach and 673 days on breaches in this case) in custody while his LTSO continued to run. That pe- riod amounted to more than half of original 7-year period LTSO was intended to apply. Leave to appeal granted; appeal dismissed. Despite sentencing judge' mistake, s credit for presentence posed was fit for offences. Ratio- nale for LTSO for 7 years was not undermined by sentencing judge' sentence actually im- s factual calculation error. R. v. Bourbon (Apr. 23, 2012, Ont. C.A., Juriansz J.A., File No. C53975) 100 W.C.B. (2d) 756 (8 pp.). s Breathalyzer Accused charged with failing to provide sample into approved screening device. On accused' Accused should have been given opportunity to provide sample REFUSAL TO PROVIDE SAMPLE first attempt to provide sample he put his lips to mouthpiece but did not blow. On accused' third attempts he blew for insuf- ficient period of time. Following accused' s second and which he did not blow continu- ously, accused was arrested. Ac- s fourth attempt, during www.lawtimesnews.com s cused immediately asked for one more chance to provide sample, but was refused. Accused argued that failure by officer to provide "last chance" warning in circum- stances raised reasonable doubt as to whether refusal was unequivo- cal. Accused found not guilty. Ac- cused' cal. Accused was not told that his fourth chance was his last chance. Accused had been warned of con- sequences of s refusal was not unequivo- did not know exercise was over until his arrest. Accused' provide proper sample was made immediately and was genuine. Given that officer and device re- mained immediately available, it would have only taken few sec- onds of officer' failure/refusal but s offer to if accused's offer to provide sample PAGE 15 did he consider doing that and he entered "not guilty plea" at trial. As result he suffered no prejudice even if there was breach, which there was not. R. v. Cedrone (Feb. 23, 2012, Ont. C.J., Cowan J., File No. 11-9713) 100 W.C.B. (2d) 774 (8 pp.). Evidence ADMISSIBILITY s time to determine was in fact genuine. Accused should have been given opportu- nity to provide sample, and fact that he was not, meant there was reasonable doubt. R. v. Hamilton (Apr. 26, 2012, Ont. C.J., Selkirk J., File No. 11-0850) 100 W.C.B. (2d) 768 (10 pp.). Charter of Rights Application for stay of proceed- ings. Police on highway patrol observed vehicle swerving within its lanes. Based on observations at scene, accused was arrested, turned over to intoxilyzer op- erator and provided two breath samples yielded readings of 150% mgs blood alcohol. Accused was charged with impaired driving and driving over 80. Written dis- closure was provided by Crown without video disclosure and matter was adjourned. On next appearance date there was still no video disclosure and matter was adjourned again, with coun- sel submitting written request to Crown. Defence asked for disclo- sure of police booking video and any other relevant video. Matter was finally adjourned to final date by which accused could be eligi- ble for "Stream A of ignition inter- lock program," if he pleaded guilty to one of charges. Just before that date, accused' FUNDAMENTAL JUSTICE Crown did not intentionally misinform defence written response from Crown advising that O.P.P. detachment in question did not have video surveillance of booking/cell area at detachment. Accused' s counsel received ity for Stream A expired. Breath room at station lacked capacity to videotape and thus no video of breath room ever existed. Appli- cation dismissed. While there was some misinformation provided by Crown in terms of existence of video, this was because Crown was unfamiliar with police prac- tices in neighbouring region. When it was ascertained that vid- eo did not exist, counsel was in- formed of this. Accused had not shown on balance of probabilities that there had been violation of his s. 7 Charter rights. Crown did not intentionally misinform de- fence. While accused was aware that he could only participate in "Stream A" if he entered his guilty plea within 90 days, at no time s eligibil- Restriction on admission of text mes- sages struck proper balance between probative value and prejudicial effect Accused charged with posses- sion of cocaine and possession of cocaine for purpose of traf- ficking. Drugs were found inside apartment of accused' Accused had access to apartment and appeared to make numerous hand-to-hand drug transactions while under surveillance. Nu- merous text messages were sent to and from accused' s girlfriend. which included code language used for availability of cocaine for sale. Accused challenged admissibility of surveillance evidence and opinion of drug officer regarding characteriza- tion of his observations. Accused challenged admissibility of text messages and officer' s cell phone regarding them. Accused argued surveillance evidence was evi- dence of discreditable conduct which painted him drug traf- ficker, even though he was not charged with actual trafficking. Accused argued text messages from others were hearsay and, where they are from him, were evidence of discreditable con- duct. All evidence was admis- sible except for text messages sent more than two days prior to accused' s evidence evidence was directly relevant and was not properly character- ized as prior discreditable con- duct. Surveillance evidence went to making case for possession of cocaine more likely, and was therefore relevant. Evidence had direct probative value to main is- sue in case without resort to pro- pensity reasoning. Evidence went to accused' s arrest. Surveillance alleged offence and thus to issue before court. Evidence of officer' observations and his perception of what he had seen was admit- ted, subject to cross-examination and to weight given to it by jury. Text messages sent in six weeks before offences were excluded, as prejudice exceeded its limited probative value further calls were removed from date charged. Text messages in two days before of- fences occurred were admissible, subject to testimony of com- petent representative official of communications company that entries were accurate in all de- tails. Officer could give evidence on content of text messages, subject to whatever weight jury might give it. Restriction on ad- mission of text messages struck proper balance between proba- tive value and prejudicial effect of proffered evidence. R. v. Rowe (Apr. 30, 2012, Ont. S.C.J., Howden J., File No. CR- 11-301) 100 W.C.B. (2d) 791 (12 pp.). s conduct on day of s LT

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