Law Times

Law Times • may 1, 2017 Page 15 www.lawtimesnews.com CASELAW Sivell v. Sherghin (2017), 2017 CarswellOnt 2858, 2017 ONSC 1368, J. Paul R. Howard J. (Ont. S.C.J.). Insurance CONTRACTS OF INSURANCE Assignment of contract Finding of unjust enrichment was unavailable Applicant and deceased were married for more than 20 years. Applicant was named benefi- ciary of deceased's life insurance policy. From its inception un- til breakup of their marriage in 2000, deceased and applicant paid insurance premiums on policy from their joint account. Under oral agreement, applicant continued to pay premiums and policy remained in effect until her husband's death. Following divorce, deceased established re- lationship with respondent. Con- trary to oral agreement, deceased revoked applicant's designation and designated respondent as irrevocable beneficiary. Applica- tion judge found that there was oral agreement between former spouses, which took form of equitable assignment and that applicant should receive life in- surance proceeds. Respondent appealed. Appeal allowed. Appli- cation judge erred in relying on doctrine of equitable assignment, which was not pleaded or argued. Because record was not created on ground of equitable assign- ment, application judge's find- ings with respect to it were un- reliable. Application judge erred in failing to hold that there was valid juristic reason for respon- dent's receipt of policy proceeds and therefore in holding that pro- ceeds were impressed with trust in applicant's favour based on unjust enrichment. Absent equi- table assignment, provisions of Insurance Act, pursuant to which respondent was designated irre- vocable beneficiary, operated to provide valid juristic reason for her receipt of insurance proceeds, making finding of unjust enrich- ment unavailable. Moore v. Sweet (2017), 2017 CarswellOnt 2958, 2017 ONCA 182, G.R. Strathy C.J.O., R.A. Blair J.A., and P. Lauwers J.A. (Ont. C.A.). Municipal Law MUNICIPAL TAX ASSESSMENT Valuation Assessed values could not be justified under Assessment Act (Ont.) Owner appealed from assess- ments of subject property used as grocery store for taxation years 2006 through 2012. As- sessment Review Board deter- mined that current values were $8.4 million for first three years and $10.92 million for remain- ing years but that principle of equity required reduction of as- sessed values to $1.635 million and to $3.042 million. Municipal Property Assessment Corpora- tion (MPAC) appealed. Appeal allowed. Board's reasons did not adequately canvass what test was under ss. 44(2) and (3)(b) of As- sessment Act for determining adjustment necessary from cur- rent value to make assessment equitable with "similar lands in vicinity". Board did not under- take any discernible analysis of core issue of selecting appropri- ate comparator of "similar lands." Board's failure to explain why grocery stores were sole appropri- ate comparator or why only two were used was troubling in light of its rejection, in determining current value, of historical mod- els for assessing grocery stores as inappropriate for "unique piece of prime real estate." Board ap- plied those self-same models in equity determination, without offering any justification for this inconsistent approach. Exercise of determining similar lands should have considered other properties sharing some or all of subject property's distinguish- ing features that made it unique prime real estate. Board isolated sole factor of subject property's current function as grocery store instead of considering all points of comparison. Even if Board was entitled to look only at other gro- cery stores, it should have looked at how their assessed values com- pared to their current values to determine whether result for subject property ref lected similar treatment for equitable purposes. Result of assessed values less than 30 per cent of current values was not equitable to two comparators assessed at close to current value and in range of 60-70 per cent of current value. Result could not be justified under Act, as it was not "adjustment" but was up-ending of values otherwise dictated by terms of Act. Board's errors con- stituted errors of law and resulted in unreasonable decision so mat- ter would be remitted back for redetermination. Municipal Property Assess- ment Corp. v. Loblaw Proper- ties Ltd. (2017), 2017 Carswel- lOnt 2861, 2017 ONSC 1299, Morawetz R.S.J., Nordheimer J., and Mulligan J. (Ont. Div. Ct.); reversed (2015), 2015 Carswel- lOnt 17162, Robert P. Tchegus Member (Ont. Assess. Review Bd.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] Challenge to validity of search warrants was dismissed Accused was convicted of several offences involving possession of firearm and dangerous weapon. Accused's applications under ss. 7, 8, and 9 of Canadian Charter of Rights and Freedoms, includ- ing his s. 8 application to exclude evidence obtained pursuant to search warrants obtained under Criminal Code and Controlled Drugs and Substances Act, were dismissed. Warrants were based on information provided by con- fidential informant (CI), comput- er checks of police databases, and surveillance. Crown conceded that judicial summary of redact- ed information to obtain (ITO) could not support authorization of warrants. Crown's application to have judge consider unredact- ed ITO was granted, accused's s. 8 application was dismissed, evidence obtained in searches was admitted, and accused was convicted. Accused appealed convictions, challenging valid- ity of search warrants on basis that they violated his s. 8 Charter rights. Appeal dismissed. Appli- cation judge did not err by not permitting accused to challenge sub-facial validity of redacted portions of ITO. Read as whole, application judge's reasons made it clear that accused was per- mitted to make, and did make, sub-facial challenge to warrant. Application judge dismissed accused's sub-facial challenge, finding that ITO did not omit any material facts concerning surveillance or that information provided was misleading. Appli- cation judge found that ITO was not misleading and that police conducted adequate investiga- tion to corroborate CI's tip. He dismissed accused's request for additional information on ba- sis that further disclosure could disclose CI's identity. Judicial summary explained nature of re- dacted information and was suf- ficient to permit accused to chal- lenge credibility of CI, whether information provided by CI was compelling, and whether CI's in- formation was corroborated. R. v. Thompson (2017), 2017 CarswellOnt 3240, 2017 ONCA 204, J. MacFarland J.A., K. van Rensburg J.A., and Grant Hu- scroft J.A. (Ont. C.A.). OFFENCES Arson Case against accused for arson was formidable Fire destroyed building owned by accused, at which he was found bound, beaten and stabbed, as well as adjoining building. H, with extensive criminal record, actually set fire and assaulted ac- cused. H's girlfriend L implicated accused, who attempted to claim insurance proceeds. Accused was convicted of arson. Accused ap- pealed. Appeal dismissed. Case against accused was formidable, including evidence of motive, planning, preparation as well as forensic evidence suggesting he was involved and testimony of disreputable witness L who was probably accomplice. Trial judge took correct approach to numer- ous pieces of evidence that inde- pendently confirmed L's account. Trial judge erred in approach to accused's exculpatory statements as, while he could disbelieve ac- cused's statements as implausible and incapable of raising reason- able doubt, he could not infer guilt from mere disbelief without evidence of fabrication. If trial judge considered that circum- stance surrounding making of statements and their contents re- vealed fabrication, it was incum- bent on him to explain why that was case. Without explanation, it was not possible to determine whether trial judge had good reason for treating statements as positive evidence of guilt, wrong- ly equated mere disbelief with evidence of fabrication or errone- ously inferred fabrication. Error was inconsequential because trial judge's reliance on statements as evidence of guilt was integral to ultimate conclusion. It was clear that statements did not raise rea- sonable doubt. Evidence as whole pointed overwhelmingly to ac- cused's participation in setting fire so no substantial wrong or miscarriage of justice was occa- sioned by trial judge's error. R. v. MacIsaac (2017), 2017 CarswellOnt 2731, 2017 ONCA 172, K.M. Weiler J.A., S.E. Pepall J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 48, 2016 ONSC 67, R. Dan Cornell J. (Ont. S.C.J.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal Appeal from conviction for possession of crack cocaine was dismissed Accused was convicted at trial, on charge of possession of crack cocaine. Accused was sentenced to 18 months' imprisonment. Accused claimed that police did not have reasonable and probable grounds to make arrest. Accused claimed that trial judge misap- prehended evidence on this issue. Accused claimed that judge's rea- sons were insufficient. Accused finally claimed arresting officer did not have requisite knowledge of resident's drug activity, at site of arrest. Accused claimed sen- tence was unconstitutional, as mandatory minimum sentence was one year. Accused appealed from conviction and sentence. Appeal dismissed. Trial judge understood gaps in police of- ficer's evidence. Officer was still able to draw inferences that ac- cused was driver of vehicle, and that there was interaction be- tween accused and another per- son. Officer had knowledge of drug activity taking place at site. Trial judge's reasons were sparse, but adequately dealt with key evidence to show understanding of issues. Trial judge set out how officer had reasonable and prob- able grounds to arrest accused. Trial judge made error in finding that accused drove, so as to avoid detection. This error had little to no significance in trial judge's overall findings, and would not have changed outcome. If neces- sary, curative proviso could have been applied to this finding. R. v. Alexander (2017), 2017 CarswellOnt 2730, 2017 ONCA 181, E.A. Cronk J.A., Paul Rou- leau J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 19295, A. Stong J. (Ont. S.C.J.). TRIAL PROCEDURE Charging jury or self–instruction Trial judge erred in instructions regarding proper consideration of evidence in multi-count case Police undercover investigation into drug trafficker revealed phone calls to accused's phone number and attendances near accused's house and at location being renovated by accused's business during transactions. Police found drugs and cash at work site and at rented-out basement apartment of house and in neighbour's hard. On multi-count charge related to transactions committed on four separate dates, accused was convicted by jury on multiple counts of trafficking, possession of proceeds of crime and pos- session of drugs for purpose of trafficking. Accused appealed. Appeal allowed. Trial judge erred in instructions to jury re- garding proper consideration of evidence in multi-count case, including by failing to correct parts of Crown's cross-exami- nation of accused and closing address that were improper and prejudicial to defence. Most of evidence was particular to each individual count, other than ev- idence such as accused's phone number and home. Clear lim- iting instruction was required because Crown invoked similar act reasoning in cross-exam- ining accused and repeatedly invited jury to engage in cross- count reasoning during clos- ing address and trial judge did not correct such misstatements. Crown's urging of reliance on al- leged pattern of acts as circum- stantial evidence of guilt on all counts was improper and highly prejudicial. Trial judge's instruc- tion to consider all evidence in- correctly suggested there was no restriction on cross-count use of evidence. Viewed in entirety, in- structions were ambiguous and ripe for misinterpretation espe- cially given failure to tell jury to disregard Crown's urgings to use evidence of any of counts that could assist on findings of fact on other counts. Trial judge pro- vided contradictory responses to jury questions about use that could be made evidence across counts, suggesting they could sift through all evidence to de- termine if any was relevant and admissible for use in supporting findings on counts. Unresolved jury confusion on issue of com- bining evidence undermined in- tegrity of its guilty verdicts and fairness of fact-finding process. Trial judge did not adequately furnish guidance on approach to be taken to evidence, and jury's questions revealed that it struggled until almost close of its deliberations to reconcile contradictions between Crown's urgings and trial judge's instruc- tions. New trial was necessary. R. v. Poulin (2017), 2017 CarswellOnt 2729, 2017 ONCA 175, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).

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