Law Times

Law Times • January 7, 2013 children, and separated in 2001 or 2002. Appeal allowed. Judge erred in law by ordering husband to reinstate policy for life insurance. Ordering husband to reinstate policy of insurance was not within judge's jurisdiction. Section 34(1) of Family Law Act (Ont.), gives jurisdiction to require spouse who has policy to designate beneficiary, but there is no jurisdiction to order spouse to obtain life insurance or reinstate life insurance. Feinstat v. Feinstat (Sep. 21, 2012, Ont. S.C.J. (Div. Ct.), Matlow, Kiteley and Lederer JJ., File No. DC-11-00331-ML) 220 A.C.W.S. (3d) 383. IMPLIED TERMS Notice of changes to commission could not be effective without clear acceptance Plaintiff was exclusive sales representative of defendant in Manitoba and elsewhere. Parties had agreement for commission for plaintiff. Pandemic created unprecedented demand for product and significantly larger orders were placed with defendant. Health Sciences Centre placed order for $9.4 million. Day before order defendant sent e-mail limiting commissions. Three days after order plaintiff signed agreement with defendant to accept bonus of $74,000 to settle amount of commission for order. Plaintiff signed agreement believing relationship with defendant was in peril. Within hours of signing plaintiff obtained legal advice and tried to repudiate agreement. Defendant terminated plaintiff and did not pay defendant any commission. Plaintiff 's claim for commission failed. Counterclaim based on allegations of breach of agreement failed. Plaintiff was entitled to be paid $74,250 pursuant to bonus agreement. No term was implied in agreement that allowed for change in commission to be paid. Term was not implied that plaintiff breached obligations by engaging in other business activities. Original commission agreement made no provision for unilateral alteration of commission payments. Without clear acceptance of changes by sales representative, notice of changes to commission could not be effective. Parties were bound by bonus agreement. Conduct of defendant did not reach level that would support finding of coercion or unconscionability. Fitzgerald v. Southmedic Inc. (Sep. 11, 2012, Ont. S.C.J., Kent J., File No. C-32-10) 220 A.C.W.S. (3d) 331. Damages LIBEL AND SLANDER Defendant had duty to fairly represent important events to national assembly Plaintiffs claimed individual defendant made defamatory comments in report as president of defendant union which was delivered orally and in writing at general assembly of defen- Page 15 CASELAW dant union. Defendants counterclaimed plaintiffs published defamatory comments concerning defendants on internet. Action was allowed. Defendants were jointly and severally liable for general damages of $25,000 to each plaintiff and aggravated damages of $7,000 to each plaintiff. Impugned words uttered and written by individual defendant were defamatory and individual defendant was acting as representative of defendant union at time of publication. Defence of qualified privilege applied, but was defeated. Individual defendant as president had duty to fairly represent important events to national assembly, but it was unnecessary to refer to plaintiffs as liars. Defendants acted with malice at time of publication. Counterclaim was allowed and plaintiffs were to pay damages of $1,500 to defendant union. Comments published by plaintiffs were defamatory but, not of individual defendant personally. Publications were made on occasion of qualified privilege, but privilege was exceeded by excessive publication. Defence of fair comment failed. Hunter v. Godin (Aug. 20, 2012, Ont. S.C.J., Johnston J., File No. CV-07-467-00) 220 A.C.W.S. (3d) 446. Municipal Law ACTIONS AGAINST MUNICIPALITY Court had jurisdiction to decide whether farmer immune from liability because raising boars normal farm practice City sought to enforce exotic animal by-law against farmer who raised wild boars. City advised farmer if he did not remove boars, they would be forcibly removed and he would be charged under by-law. Farmer removed boars but subsequently charged. Charges withdrawn week before trial date. Farmer commenced action against city alleging that city negligent in taking enforcement proceedings without considering whether operation constituted normal farm practice under s. 6(1) of Farming and Food Production Protection Act, 1998 (Ont.), which provides that no municipal by-law applies to restrict normal farm practice. City brought motion to strike out allegations of negligence as not disclosing reasonable cause of action. Motions judge refused to strike out amendments and city's appeal dismissed. Per Harvison Young J., to strike out allegation, must be plain and obvious it discloses no reasonable cause of action. Even if no breach of statutory duty, would be unfair to dismiss action when essence of pleadings supported claim arising out of common law duty of care. Farmer singled out by municipal authorities and right to earn living engaged. He was told he was in breach of by-law and disposed of animals, resulting in loss. Not plain and obvious there was no prima facie duty of care. Nor was it plain and obvious there were any policy reasons that negated prima facie duty of care. Concerns about potentially overbroad liability may be addressed by formulation of standard of care. Existence of recourse to Normal Farm Practices Protection Board under Act, along with possible remedies for wrongful or malicious prosecution did not constitute sufficient policy reasons to negate prima facie duty of care, particularly at preliminary stage. Nothing in Act that ousts jurisdiction of court to decide whether farmer immune from liability because raising of wild boars was normal farm practice within meaning of state. Further, recourse to board inadequate remedy where negligent enforcement. While possible farmer would not be able to prove facts necessary to establish duty of care, not possible to say it was plain and obvious he could not do so. Per Aston J. (concurring in result) City not under any duty to take steps under Act before enforcing by-law but may have duty to refrain from enforcing by-law on basis that activity part of "normal farm practice". Section 6(1) of Act establishes possibility of relationship of proximity sufficient to support duty of care. On generous reading of pleading, farmer articulated valid cause of action. Rausch v. Pickering (City) (Aug. 22, 2012, Ont. S.C.J. (Div. Ct.), Aston J., Murray J. and Harvison Young J., File No. 507/11) Decision at 204 A.C.W.S. (3d) 243 was affirmed. 220 A.C.W.S. (3d) 447. ONTARIO CRIMINAL CASES Appeal GROUNDS Accused fired his lawyer and request adjournment to delay and obstruct trial process Appeal by accused from his convictions for first degree murder and for attempted murder. Accused was drug dealer who arranged to purchase two kilograms of cocaine from deceased. Crown submitted that accused and co-accused, who was acquitted, decided to steal deceased's cocaine and to murder him. Accused fired shots that killed deceased and that wounded his girlfriend. Coaccused testified that there was no plan to kill deceased and to steal his drugs but accused acted on his own when he shot victims and co-accused was surprised that accused did so. Appeal dismissed. Trial judge did not err when he refused to grant accused adjournment to retain new counsel. Judge relied on testimony of several court officers that accused asked them if he could get mistrial if he fired his lawyer. Such evidence supported inference that accused fired his lawyer and he requested adjournment to delay and www.lawtimesnews.com obstruct trial process. Judge did not err in exercise of his discretion to deny adjournment and it was proper for judge to ask accused why he wanted to discharge his lawyer. Accused received fair trial for two lawyers were appointed as amicus to assist court in fulfilling its duty to ensure that accused received fair trial and they provided substantial assistance. Judge did not err in refusing to put to jury accused's claim that co-accused killed deceased in retaliation for attack on his brother. There was no basis for claim in evidence and since it was speculative judge was not required to put it to jury. There was evidence that was left with jury that could support inference of planning and deliberation. R. v. Phung (Oct. 29, 2012, Ont. C.A., Doherty, Hoy and Pepall JJ.A., File No. CA C47986) 103 W.C.B. (2d) 599. Charter of Rights ENFORCEMENT OF RIGHTS Officer cavalierly violated accused's right to counsel Trial of accused for driving with blood alcohol level above legal limit. Accused applied to exclude breath test evidence because his right to counsel was violated. Police officer stopped accused to determine if he had been drinking. Once accused admitted that he had, officer administered roadside screening test that accused failed. Accused was arrested for driving over .08 and he was informed of his right to counsel. He told officer that he did not have lawyer but he accepted officer's offer to call lawyer for him. Upon arrival at station officer again advised accused of his right to counsel. He asked accused if he understood what he said and if he wanted lawyer but he did not note accused's response. Only thing officer noted was that accused waived his right to counsel. Officer admitted that accused changed his mind and that he did not properly explain right to counsel to accused. Crown admitted that it could not prove that accused unequivocally waived his right to counsel and right to counsel was therefore violated. Accused acquitted. Officer cavalierly violated accused's right to counsel. Breath test evidence had to be excluded because admitting it would bring administration of justice into disrepute. R. v. Spurrell (Sep. 17, 2012, Ont. C.J., R.G. Selkirk J., File No. 120368) 103 W.C.B. (2d) 623. Reasonable to assume that if accused wanted to speak to lawyer he would have said so Application by accused, who was charged with impaired driving and driving with blood alcohol level over legal limit, to exclude evidence against him because his right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was violated. Police officer advised him of his right to counsel when he arrested him. Accused told officer he understood his right but he did not want to speak to lawyer at this point. Officer did not discuss right to counsel with accused when they arrived at police station. Breathalyzer technician testified that arresting officer told him that accused did not want to speak to lawyer. Technician confirmed with accused that he did not want to speak to lawyer and, when he asked accused if he wanted to speak to lawyer answer was no. Accused, who was 35, testified that he did not want to speak to lawyer because he did not realize extent of trouble he was in and he provided breath samples because he did not want be charged with refusal. Application dismissed. Accused's response to arresting officer was equivocal and police had to revisit issue before accused provided breath samples. It was reasonable to assume that if accused wanted to speak to lawyer he would have said so. Court did not accept accused's claim that he did not realize what trouble he was in for being arrested and placed in holding cell would have made him realize severity of his situation. Accused failed to prove that his right to counsel was violated. Any doubts that arose from accused's equivocal response to arresting officer were dealt with by technician and accused unequivocally declined to speak to lawyer. R. v. MacLachlan (Oct. 29, 2012, Ont. C.J., Dean J., File No. 11 11893) 103 W.C.B. (2d) 627. Evidence CONFESSIONS AND ADMISSIONS Presenting theories not same as inducement Crown sought to admit statement given by accused in January 2009 after earlier statement in July 2008 was ruled inadmissible due to Charter s. 10(a) breach. Statement in 2008 was ruled inadmissible because police did not tell accused he was suspect in homicide investigation. Statement in 2009 occurred after accused was arrested for two murders and he was allowed to speak to his lawyer. Police presented accused with different theories of crime including self-defence and accused often insisted he had nothing to say. Statement admissible. Statement in 2009 was not tainted by earlier Charter breach as accused was well aware at that point that he was being investigated for murder. Accused was treated with courtesy throughout interview and presenting theories was not same as inducement and there was nothing that took away from voluntariness of statement. R. v. Carter (Oct. 31, 2012, Ont. S.C.J., Pomerance J., File No. CR-10-2017) 103 W.C.B. (2d) 639. LT

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