Law Times

Law Times • June 5, 2017 Page 15 www.lawtimesnews.com CASELAW Information Technology INTERNET DOMAIN NAMES Challenge to registration Plaintiff having no legitimate interest in domain names and business names Plaintiff and defendant were competitors in market for healthy children's catering. Plaintiff reg- istered domain names and busi- ness names that were identical or similar to names that defen- dant claimed to have used con- tinuously for years, embedding such keywords as meta-tags to ensure internet searches would be directed to plaintiff 's website. Defendant's complaints about domain names led to findings on arbitration that plaintiff had no legitimate interest in them. Plaintiff brought action against defendant and its principal for relief, including declaration that it was lawful owner of disputed domain names; defendant coun- terclaimed for injunctive and declaratory relief and damages. Defendant's motion for sum- mary dismissal was granted and action was dismissed. Defendant and principal were awarded costs in amount of $98,959.82. Plaintiff appealed. Appeal dismissed. Mo- tion judge did not err in refusing to strike paragraphs of statement of defence, relating to plaintiff 's registration of business name, use of meta-tags and procedural history of parties' dealings. Mo- tion judge was entitled to con- sider all of evidence of plaintiff 's use of disputed marks and course of conduct, given relevance to plaintiff 's alleged bad faith that affected validity of its domain name registrations. Regardless of whether plaintiff had excuse for not participating in arbitration proceedings, motion judge did not base his findings on results of those proceedings but simply referred to them while determin- ing issues based on evidence pre- sented to court. Motion judge did not err in concluding, after giving plaintiff 's principal opportunity to provide viva voce evidence, that plaintiff 's registration of do- main names was in bad faith with view to denying defendant ability to use names. Motion judge ap- plied proper test for dispute over domain names, considering all evidence put forward by plaintiff. Boaden Catering Ltd. v. Real Food for Real Kids Inc. (2017), 2017 CarswellOnt 4247, 2017 ONCA 248, J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 Carswel- lOnt 10560, 2016 ONSC 4098, Sproat J. (Ont. S.C.J.). Law Enforcement Agencies POLICE Duties, rights and liabilities of officers Police not owing duty of care to employees of suspect under investigation Police officer A was business partner of bailiff, and they re- ceived financing from financier. A, assisted by police officer M, conducted fraud investigation relating to employer that operat- ed automobile dealerships. Em- ployer went out of business, and employees lost their jobs. Two employees alleged investigation had been carried out with view to harming employer for ben- efit of A, bailiff, and financier. These two employees brought separate actions against officers, province, police services board, bailiff, and financier for dam- ages for negligent investigation, misfeasance in public office, and conspiracy. Officers, province, and board brought motions for order striking out statements of claim as disclosing no reasonable cause of action. Motions granted in part. Statements of claim were struck but leave to amend was granted for claims based on civil conspiracy and misfeasance in public office. Police did not owe duty of care to employees of sus- pect under investigation. While harm to employees was reason- ably foreseeable, there was no allegation of any relationship between investigating police and employees. Economic and repu- tational effect on employees by actions of police against employ- er was indirect, and relationship between employees and police did not give rise to private law duty of care. In addition, there were serious policy consider- ations that made recognition of such duty unwise, particularly effect of multiplicity of duties of police and growth of indetermi- nate liability. Dafesh v. Amormino (2017), 2017 CarswellOnt 4062, 2017 ONSC 1748, Kirk W. Munroe J. (Ont. S.C.J.). Real Property MORTGAGES Miscellaneous Expenses mortgagee incurred for legal costs not tied to mortgage and not recoverable Distribution of proceeds of sale. Plaintiff held second and third ranking mortgages on property securing principal amount of $320,000. Defendant took as- signment of first ranking mort- gage on property in amount of $49,990 in October 2011. There were no other mortgages on property at that time but proper- ty was encumbered by execution. Defendant sold property by way of power of sale to related compa- ny and delivered discharge state- ment alleging that $49,900 mort- gage assigned to it 15 days prior secured amount of $441,493.32. Vendor-take-back mortgage of defendant in amount of $45,000 was registered on title and well as second and third ranking mortgages of plaintiff. Defen- dant then assigned its $45,000 vendor-take-back mortgage to another related company. De- fendant paid $230,000 to settle action by execution creditor. Judgment in 2013 unwound sev- eral transactions and reinstated defendant's vendor-take-back mortgage that had been assigned to related company. Defendant now argued that it was entitled to recover expenses, as mort- gagee, reasonably incurred to preserve mortgaged property and to protect mortgagee's in- terest, from proceeds of power of sale. Plaintiff brought mo- tion to determine how proceeds should be distributed that were realized on power of sale. Mo- tion granted. Settlement pro- ceeds paid to execution creditor and legal costs were not allowed to be added onto and paid with $45,000 mortgage. Judgment in 2013 did not have effect of retro- actively voiding mortgage trans- fer to related company, thus not allowing defendant to maintain its claim that it held mortgage at time it advanced moneys to execution creditor. Therefore, that payment was not made to protect defendant's then existing mortgage interest. Expenses de- fendant incurred for legal costs and for settlement purposes were not tied to its mortgage, given its mortgage had been assigned to related company by time pay- ment to execution creditor was made. Defendant appealed. Ap- peal dismissed. Motion judge articulated correct legal prin- ciples and made findings of fact and mixed fact and law that were fully supported by record. HJLJ Investments Ltd. v. 2305106 Ontario Inc. (2017), 2017 CarswellOnt 3446, 2017 ONCA 213, Hoy A.C.J.O., Gil- lese J.A., and Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 15546, 2015 ONSC 6302, Fitzpatrick J. (Ont. S.C.J.). Torts FRAUD AND MISREPRESENTATION Fraudulent misrepresentation Defendant liable in fraudulent misrepresentation for false statements about software Plaintiff was Crown corpora- tion with statutory purpose of supporting Canadian entre- preneurship by making loans and providing consulting ser- vices to small and medium sized businesses. Defendant was US company which licenced and implemented software and pro- vided services to organizations to manage their commercial and financial decisions. Plain- tiff sought replacement system for its existing commercial lending software and selected defendant as potential supplier. In procurement process, defen- dant responded to plaintiff 's extensive request for informa- tion (RFI) and in march 2009 plaintiff entered into agreement with defendant to provide plain- tiff with replacement software program resultant of represen- tations made by defendant in response to RFI and other repre- sentations made by defendant's representatives during procure- ment process. Implementation of new software system did not go well and plaintiff terminated agreement in November 2009. Plaintiff commenced action on grounds including that de- fendant fraudulently misrepre- sented characteristics of soft- ware system it could deliver to plaintiff and defendant counter- claimed for development charg- es under agreement that plaintiff refused to pay. Plaintiff 's claim for damages arising from defen- dant's fraudulent misrepresenta- tion allowed and counterclaim dismissed. Plaintiff 's damages were assessed in amount of $44,447,416 plus pre-judgment and post-judgment interest. Evidence was accepted to effect that defendant did not have base solution product for relation- ship lending in 2008 or 2009. Defendant's representatives rep- resented that software described in defendant's response to RFI currently existed when it did not and this false representation of fact continued until June 2009. Misrepresentation was made with knowledge that statement was false or recklessly without belief in its truth, and false state- ments by defendant's employees were made with intention that plaintiff would rely on them and decide to acquire defendant's software. Plaintiff was induced to deal and contract with defen- dant because of false statements about defendant's software. Plaintiff wasted 18 months in implementing new software resultant of dealing with defen- dant. Defendant made fraudu- lent misrepresentations regard- ing its software and capabilities to plaintiff and plaintiff relied on those representations in manner that caused it damage. Business Development Bank of Canada v. Experian Canada Inc. (2017), 2017 CarswellOnt 4242, 2017 ONSC 1851, Hainey J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law OFFENCES Dangerous driving causing bodily harm Police officer convicted of dangerous driving for collision while speeding to emergency Accused OPP constable re- sponding to emergency call about serious motor vehicle acci- dent entered small village, travel- ling at 178 km/h in 50 km/h zone, and entered intersection where he collided with complainant's vehicle. Complainant suffered cracked ribs and concussion, and property damage resulting from collision was extensive. Accused was found guilty of dangerous driving causing bodily harm. Trial judge found that accused's conduct amounted to marked departure from standard of care of reasonable police officer. Ac- cused fined $2,500. It was ag- gravating that accused, police officer sworn to uphold laws of province, committed criminal offence. Facts were also aggra- vating, given his extremely high rate of speed through village in mid-afternoon leading to col- lision causing bodily harm. It was accepted that accused was remorseful. Deterrent sentence must emphasize community dis- approval of act and brand it rep- rehensible. Gravamen of offence was disregard for public safety. Accused's motive being protec- tion of public safety substantially mitigated his moral culpabil- ity. His act became criminal only because he responded in disproportionate manner. Sen- tence must attempt to balance accused's level of culpability and need to denounce and deter with other relevant circumstances, including fact that complainant made illegal left turn into path of accused's police vehicle. Accused did not need specific deterrence or rehabilitation. However, dis- charge sought by defence would be contrary to public interest as it would not satisfy general de- terrence or denunciation. Pro- portionate sentence was $2,500 fine with appropriate surcharge and driving prohibition of 12 months. R. v. Porto (2017), 2017 Car- swellOnt 4880, 2017 ONSC 733, Bruce Thomas J. (Ont. S.C.J.). OFFENCES Extortion Accused receiving suspended sentence for extortion conviction Accused attended offices of paralegal agency and threatened B that complaint to Law Society of Upper Canada would be made regarding Z's conduct that would result in Z being disbarred and agency being shut down. Ac- cused also suggested that this fate could be avoided were he paid $25,000, a figure he subsequently agreed to reduce to $10,000. Ac- cused re-elected to proceed to tri- al by judge alone and has pleaded guilty to crime of extortion con- trary to s. 346(1.1)(b) of Criminal Code. Sentencing hearing held. Having considered carefully submissions of both parties, age and character of offender, nature of offence and circumstances surrounding commission, this was appropriate case to exercise discretion under s. 731(1)(a) of Criminal Code to suspend pass- ing of sentence while directing that accused be released on cer- tain conditions of probation for period of 18 months. There were mitigating circumstances pres- ent. Accused was young man who had just completed univer- sity education. Accused's youth was subject to unusual stresses associated with breakdown of parent's marriage and father's financial distress. Accused was attempting to launch legal career under the cloud of what will very certainly be challenging circum- stances for many years to come as result of conviction regard- less of what sentence may be im- posed. Accused had no criminal record or record of involvement with police. R. v. Fattore (2017), 2017 Car- swellOnt 5587, 2017 ONSC 2410, S.F. Dunphy J. (Ont. S.C.J.).

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