Law Times

Law Times ��� March 4, 2013 riage, determination of value of her business and of parties��� incomes. Parties were married 1998 to 2007 and had child, aged seven. Mother���s son, aged 21, from previous marriage was university student. Both children lived with mother, aged 49 at time of separation. Father, aged 62 years old at separation, and his employment was terminated three days before parties separated. Father received termination package and pension payout totalling $190,000. Mother operated daycare. Parties agreed on custody, access and s. 7 expenses. Trial judge treated common law damages portion of father���s settlement as accumulating entirely during marriage but Employment Standards Act (Ont.), portion as accumulating prior to marriage. On that basis, trial judge found father brought $35,241 into marriage. Mother valued daycare and $1,000, father at $10,000 and trial judge assigned value of $5,000. Trial judge accepted father���s specific evidence he brought $9,500 more assets into marriage than mother. Mother sought to impute father with $62,000 to $100,000 income. Trial judge found father was intentionally unemployed and could at least work part-time, so imputed him with $60,000. Trial judge drew negative inference about mother���s unsatisfactory efforts to establish her income and imputed her with $40,000 for 2007, $45,000 for 2008 to 2010 and $50,000 for 2011. Appeal allowed in part. Section 57(1) of Act made it clear employees did not have absolute right to severance pay; father had no entitlement until his termination, so trial judge erred in finding accumulated Act severance at date of marriage was property owned by him at time. Trial judge���s conclusion was contrary to binding case law and internally inconsistent with his treatment of common law damages. Nothing in Family Law Act (Ont.), permitted court to retroactively classify property, and doing so would create uncertainty. Trial judge���s other valuations and imputations were reasonable based on limited evidence available. Equalization payment to be varied to reflect $35,241 increase in father���s net family property. Dembeck v. Wright (Dec. 4, 2012, Ont. C.A., Gillese, Rouleau and Epstein JJ.A., File No. C54134) 222 A.C.W.S. (3d) 449. Landlord and Tenant REPAIR Tenant not responsible for share of repaving costs as not common item of repair Tenant leased space in commercial premises owned by landlords. Lease contained provisions obligating tenant to pay on monthly pro-rata basis for ���repairs (reasonable wear and tear excepted)��� and ���maintenance��� of common areas (collectively, Page 15 CASELAW repair and maintenance provisions). Tenant received notice it owed proportionate share of amount paid by landlords to have parking lot repaved (repaving costs). Tenant took position it was not obligated to pay anything towards repaving costs and brought application for interpretation of lease. Tenant not responsible for share of repaving costs attributed to it. Repaving costs beyond what was contemplated in repair and maintenance provisions. Tenant not responsible for repaving costs as ���repair��� because repaving was result of reasonable wear and tear. Total replacement of pavement did not fall within term ���maintenance���. Landlords implicitly recognized that repaving costs were not common item of repair in that they billed tenant for its share as one-time lump sum, not as monthly expense item. Parsons Precast Inc. v. Sbrissa (Oct. 29, 2012, Ont. S.C.J., Glithero J., File No. 11-30960) 222 A.C.W.S. (3d) 513. Mental Health COMMITTEE Appellant managed property in blatant disregard of obligations as guardian Appellant appealed dismissal of application to pass accounts. Parties were brothers. Appellant was appointed guardian of property for mother. Mother suffered from Alzheimer���s disease. She died in March 2010. Appellant applied to pass accounts. Application was dismissed. Application judge found that appellant transferred significant sum of money from mother���s investment account to own account, without convincing explanation. Appellant was ordered to reimburse $132,628 and he was ordered to reimburse estate for unjustified legal expenses paid by estate. Appellant was disentitled to compensation for work as guardian. Appeal allowed in part. Appellant was not treated unfairly in being required to repay legal costs to estate. Appellant���s conduct indicated that he managed mother���s property in blatant disregard of obligations as guardian. Appellant failed to justify expenditures he made on behalf of estate. However, appellant had initiated proceedings that resulted in costs award of $25,000 in favour of estate arising out of contempt motion. Costs award had not been paid but if estate collected $25,000 pursuant to award then it was to reimburse appellant $7,500 for legal fees he demonstrated he paid that led to award. Application judge���s reasons were adequate. Reasons permitted reasonable appellate review. Application judge acted within discretion to deprive appellant of compensation in light of appellant���s failure to keep proper accounts and based on indifference to fiduciary obligations. Aragona v. Aragona (Guardian of) (Sep. 26, 2012, Ont. C.A., Cronk, Epstein and Pepall JJ.A., File No. C55324) Decision at 214 A.C.W.S. (3d) 268 was varied. 222 A.C.W.S. (3d) 523. Torts NEGLIGENCE Lunch monitors saw no need to intervene or report to office Plaintiff and fellow student involved in verbal exchange during lunch. Plaintiff left cafeteria and fellow student followed. Plaintiff ���s finger injured in kicking incident shortly after. Both students claimed to be play-fighting and apologized to each other. Plaintiff did not see doctor until two weeks later; he required surgery to re-attach finger tendon. Plaintiff ���s mother commenced an action on behalf of plaintiff against defendant school board, claiming that school board negligent in failing to take reasonable steps to ensure plaintiff ���s safety while on school premises, failing to provide adequate supervision and failing to take timely steps to stop incident. Standard of care to be exercised by school authorities is that of careful and prudent parent. School followed school board���s policy of providing three lunch monitors for cafeteria and lunch room; plaintiff did not challenge number or adequacy of monitors. Monitors on duty on relevant date saw no incident and no need to intervene or report to office. Due to heightened noise level, it would have been difficult, if not impossible, for any monitor to distinguish conversation between plaintiff and fellow student. Plaintiffs did not prove that school board failed to discharge its duty. Stephens v. Toronto District School Board (Oct. 1, 2012, Ont. S.C.J., Prattas D.J., File No. SC-11-118278-00) 222 A.C.W.S. (3d) 403. ONTARIO CRIMINAL CASES Appeal PROCEDURE Court has no jurisdiction to hear appeal lacking proper service Crown appealed accused���s acquittal for driving over .08. Accused submitted that appeal had not been properly constituted and reviewing court has no jurisdiction to hear it. Crown applied for extension of time to serve its notice of appeal although no order for extension was sought until hearing of appeal itself. Crown served courtesy copy of notice of appeal by facsimile on accused���s trial counsel before 30 day appeal deadline but trial counsel advised that he was not instructed to accept service of notice of appeal and was not retained to argue appeal. Police were instructed to serve accused with notice of appeal but service was not effected until www.lawtimesnews.com six days past deadline. Application dismissed. Accused did not waive objections to manner of service. Crown did not make any effort to seek order extending time to serve notice of appeal, even though it was on notice of objection and issued application for that relief. Proper service is foundation of jurisdiction as there was no power in court to ratify service after fact, court was without jurisdiction to hear appeal. While there was evidence that Crown had bona fide intention to appeal within appeal period, and merit to proposed appeal, there was no evidence accounting for delay in serving accused. R. v. Bouchard (Dec. 14, 2012, Ont. S.C.J., Pierce R.S.J., File No. CR-12-07-AP) Decision at 98 W.C.B. (2d) 318 was affirmed. 104 W.C.B. (2d) 607. Breathalyzer TIME ELEMENT Alcohol standard solution not changed for frivolous or unnecessary reason Accused appealed his conviction for driving over .08. Accused had also been charged with impaired driving and dangerous driving but had been acquitted. Accused was pulled over after officer observed him drive right through stop sign and noted indicia of impairment when he dealt with accused, who then failed ASD test. Breath technician testified that he changed alcohol standard solution in machine, which took two to four minutes, and that machine then required 20 to 25 minutes to warm back up and that encoding of diagnostics would take approximately another three minutes. Around 1 hour and 42 minutes after he was pulled over accused gave BAC reading of 196. As at trial accused submitted Crown failed to offer any evidence explaining what occurred between time breath technician arrived at police station and time when technician began to change alcohol solution in Intoxilyzer. Appeal dismissed. Evidence of breath technician was consistent and he was firm in his evidence that it would take 20 to 25 minutes for Intoxilyzer instrument, solution and simulator to warm up and that diagnostic input would take in order of three minutes following that and as such, that time period was reasonably accounted for. Six minutes unaccounted for was very brief time and it was not necessary for Crown to account for every moment while accused was in custody prior to breath sample being taken. Trial judge made no error by being satisfied that alcohol standard solution was not changed for frivolous or unnecessary reason. R. v. Cote (Sep. 25, 2012, Ont. S.C.J., Daley J., File No. 811/12CR) Decision at 2012 CarswellOnt 11933 was affirmed. 104 W.C.B. (2d) 633. Robbery PROOF OF OFFENCE Failure of trial judge to address significance of DNA evidence was highly problematic Accused appealed his convictions for robbery and disguise with intent to commit indictable offences. Offences arose from robbery of convenience store by man wearing balaclava. Sole issue at trial was identity. Witness stated that he saw man wearing clothes and riding bike like accused���s leaving store as he was entering right after robbery. Accused���s principal ground of appeal was that in his reasons for conviction, trial judge failed to give any consideration to evidence that accused���s DNA did not match that detected on balaclava that was found near scene of robbery. When accused went to police station to make statement police allowed clerk to listen in. Clerk heard accused���s voice, listened to it for some time and told officer sitting with her that voice she could hear was that of robber. She was then presented with photo line-up but failed to identify accused. Police seized gray hoodie with hole in right pocket from accused���s friend���s apartment where he was staying and it was accused���s size but police did not find knife, gloves or any of proceeds of theft. Robbery was recorded on surveillance tape which showed man with accused���s body type robbing store but grainy quality of video and fact that robber was wearing balaclava made it impossible to identify accused as robber. Appeal allowed, new trial ordered. Failure of trial judge to address significance of DNA evidence was highly problematic; while evidence of DNA on balaclava did not conclusively demonstrate accused���s innocence, it was significant piece of evidence that potentially exculpated accused and it therefore deserved some consideration by trial judge. Trial judge also failed to mention that clerk testified that robber could have been approximately six feet tall while accused was five foot seven or eight inches tall. Court had held on several occasions that voice identification evidence, like any identification evidence, ought to be treated with extreme caution and voice identification evidence in this case had very little, if any, value as clerk had little opportunity to hear robber���s voice, voice she heard had accent common to area and procedure used to obtain voice identification was seriously flawed. On fair reading of trial judge���s reasons Court was concerned that weight he afforded to voice identification evidence could have tipped balance in favour of conviction. R. v. Clouthier (Sep. 26, 2012, Ont. C.A., Feldman, Sharpe and Ducharme JJ.A., File No. CA C52749) Decision at 88 W.C.B. (2d) 54 was reversed. 104 W.C.B. (2d) 679. LT

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