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Law Times ��� March 25, 2013 allegation that receipts fraudulent. Onus not met. Applicant owed $4,500. Applicant ordered to pay $4,500 without interest. Payment discharged applicant���s obligations under agreement. Respondents ordered to transfer property to applicant. Hill v. Hill (Oct. 15, 2012, Ont. S.C.J., Wilcox J., File No. 531411F) 223 A.C.W.S. (3d) 98. Family Law CUSTODY Intention for uncle to have temporary custody until mother got her life together Motion by mother to vary order granting custody of child, aged seven, to maternal uncle. Mother became involved with father, a drug user, and began using drugs at age 18. She became pregnant with child and she and father were transient for some time, then mother and child lived with maternal grandmother and uncle. Mother disappeared and, when uncle learned she was in jail, contacted CAS. Mother agreed to leave child in uncle���s care and, in 2007, consented to custody order. Mother became pregnant again, stopped using drugs and was able to keep second child, born in 2008, in her care. When mother asked uncle to return older child in 2009, he refused. Mother had maintained her sobriety, found employment and was now living with new partner, with whom she had another child, born in 2011. Uncle continued to live with grandmother and had child involved in many activities. He had a girlfriend and intended to marry her, move into their own home and have children once this litigation was done. Mother introduced photographic evidence that established grandmother and uncle���s home was dirty, cluttered and had hazardous materials in plain sight. Motion allowed. State of uncle���s home was concerning, as was his lack of rules and evidence child was very spoiled. These issues would not be sufficient in themselves to order change of custody as child was in loving and stable home. However, uncle was extraordinarily angry with mother, inflexible with her access, refused to provide her with information and would not give her any credit for turning her life around. Mother attended parenting programs and implemented many recommendations of CAS and was successfully parenting two other children. Uncle was clearly unable to co-parent and parties��� intention was that he would have custody of child temporarily until mother could get her life together. It was in child���s best interests to develop strong and positive relationship with mother and siblings and this could only occur if the child was in the mother���s care. Mother granted custody and uncle to have access one weekend out of four. Page 15 CASELAW Ruppel v. Ruppel (Nov. 7, 2012, Ont. C.J., Hardman J., File No. 205/06) 223 A.C.W.S. (3d) 152. Negotiable Instruments PROMISSORY NOTES Condition precedent set out in promissory note had not been satisfied Plaintiff brought motion for summary judgment for balance due under promissory note. Plaintiff sold shares to defendant. Defendant paid part of purchase price on closing with balance being deferred pursuant to terms of promissory note. Plaintiff made formal demand for payment of balance but defendant failed to pay. Defendant claimed that promissory note clearly and unambiguously provided that no payments were due. Defendant maintained that payments were conditional on its ability to make payments without breaching its financial covenants to bank under facility letter. Motion dismissed. Wording of promissory note was clear and provided that financial covenants to be considered were those set out in particular facility letter, 2007 financial covenants. Amendments to facility letter were not relevant. Defendant was not able to make payments under promissory note without causing breach of 2007 financial covenants. Condition precedent set out in promissory note had not been satisfied and defendant���s payment obligations under note were not engaged. When defendant was able to make payments under promissory note without causing breach of 2007 financial statements then condition precedent would be satisfied and note would then be due and payable. Language of promissory note was clear and unambiguous as to conditional nature of payments and note was not now due. Plaintiff had not proven it was entitled to judgment. Surrogit Investments Inc. v. Allied Global Holdings Inc. (Oct. 15, 2012, Ont. S.C.J., Pollak J., File No. CV-11-431351) 223 A.C.W.S. (3d) 236. TAX COURT OF CANADA GOODS AND SERVICES TAX Appellant did not have reasonable expectation of profit from commercial rental Appellant wrote for local newspaper. Respondent denied appellant���s writing column was business. Appellant claimed losses of $33,165 in 2006 and $3,708 in 2007. Appellant rented tools and equipment. Appellant was disallowed maintenance and repair expenses with respect to rental property. Appellant appealed reassessment of goods and services tax (���GST���) by which Minister determined commercial portion of appellant���s property rental activity and tool rental activity were not commercial activities within meaning of s. 123(1) of Excise Tax Act (Can.). Appellant consolidated income and expenses from all appellant���s activities. Appeal was allowed in part. Appellant wrote for local newspaper as part of appellant���s political activities. Appellant did not make profit from columns appellant wrote for local newspaper. Appellant did not prove connection between legal fees claimed by appellant for lawsuit and columns written by appellant from specified date on. Appellant did not intend tool rental to be standalone business. Tool rental was incidental to operation of rental property. Incidental tool rental revenues should have been included in rental property revenues as part of rental property operation. No adjustment was made because it was not shown with certainty how much revenue was actually earned. Appellant���s commercial rental did not constitute commercial activity as defined under s. 123(1) of Act. Appellant did not have reasonable expectation of profit from commercial rental. Roof repair was to be allowed as current expense rather than on made on capital account. Palangio v. Canada (Oct. 24, 2012, T.C.C., Paris J., File No. 2011-2064(IT)I; 20112065(GST)I) 223 A.C.W.S. (3d) 262. ONTARIO CRIMINAL CASES Charter of Rights ENFORCEMENT OF RIGHTS Accused suffered specific prejudice for delay in bearing costs of paying counsel for additional trial date Application by accused for stay of proceedings because she was not tried within reasonable period of time contrary to s. 11(b) of Canadian Charter of Rights and Freedoms. On May 8, 2011 accused was arrested for refusing to comply with demand that she provide breath sample. Information was sworn on June 15, 2011. Application was brought on Oct. 16, 2012. Trial was set for Dec. 7, 2012. Application allowed. Stay was granted. Delay was calculated from June 15, 2011 which was when Information was sworn and it was not calculated from arrest date. Overall delay was 17 months and 22 days. Accused did not waive her right under s. 11(b). Total institutional and Crown delay amounted to 12 months and 10 days, and this exceeded applicable guideline of eight to 10 months. Accused���s liberty or ability to make full answer and defence was not prejudiced. However, there was nothing accused did or failed to do which suggested that she was content with pace at which things were proceeding. In this case where combined instituwww.lawtimesnews.com tional and Crown delay exceeded guidelines by more than two months it was reasonable to infer that accused suffered prejudice to her security of person interest. Accused also suffered specific prejudice for Crown delayed her case to allow officer to testify in another case and accused, who did not earn much money, had to bear cost of paying counsel for another trial date. Based on all circumstances length of delay was unreasonable and accused���s s. 11(b) right was violated. R. v. Shukla (Dec. 7, 2012, Ont. C.J., McArthur J.) 104 W.C.B. (2d) 916. RIGHT TO INTERPRETER Neither candidate competent to interpret in upcoming trial Application by accused for order to be provided with competent interpreters for his trial. Accused was born in Nigeria and his first language was Ibo. He had some basic English skills and English was his second language. Accused and his co-accused were charged with possession of heroin for purpose of trafficking and conspiracy to commit offence of possession for purpose of trafficking. Two interpreters were submitted since two of them were required for trial and voir dire was conducted to determine their competency. Accused���s counsel submitted that neither candidate was competent. Crown did not dispute need for interpreter but claimed that candidates were competent to interpret at trial. Application allowed. Neither candidate was competent to interpret in upcoming trial and new candidates would have to be found. R. v. Akaeze (Dec. 13, 2012, Ont. S.C.J., Bielby J., File No. 1574/11) 104 W.C.B. (2d) 994. TRIAL WITHIN REASONABLE TIME Fact that trial lasted 12 days refuted claim that this was simple case Application by accused and co-accused, who were charged with trafficking in cocaine, for stay of proceedings for not being tried within reasonable time, contrary to s. 11(b) of Canadian Charter of Rights and Freedoms. Charges related to purchase of small quantity of crack cocaine from undercover police officer. Alleged offence occurred on July 14, 2010 and accused were released on bail on July 16, 2010. Preliminary hearing was held in Provincial Court on July 15, 2011 and matter came on for projected seven-day jury trial in Superior Court Sept. 17, 2012. On Sept. 17, 2012 counsel for accused advised that he was just released from hospital after surgery and he was in no condition to proceed to trial. Coaccused opposed adjournment and he wanted to proceed. Court would not order separate trials, as requested by Crown, but rather adjourned matter to Nov. 5. After hearing three days of pre-trial applications, evidence began on Nov. 8 and it was completed on Nov. 22, 2012 after 12-day jury trial. At issue was why it took 28 months to bring charges to trial. Application dismissed. Institutional delay in Provincial Court was six months, which was well within guidelines. Delay of nine months in Superior Court was slightly in excess of guidelines but, taken together, 15 months of delay was within overall limits of acceptable delay. Counsel and accused were able to plan their lives and reasonable and fair schedules were established and met in both courts. Fact that trial lasted for 12 days refuted accuseds��� claim that this was simple case that could be brought to trial quickly. There was minimal prejudice to accused and accuseds��� right to fair trial and their liberty and security of person interests were not affected. Accused therefore failed to prove that their s. 11(b) rights were breached. R. v. Barnes (Dec. 17, 2012, Ont. S.C.J., Strathy J., File No. 11-90000511-0000) 104 W.C.B. (2d) 924. Societal interest in having trial outweighed delay because accused wanted to change counsel Application by accused for stay of proceedings because his right under s. 11(b) of Canadian Charter of Rights and Freedoms to be tried within reasonable time was breached. On July 24, 2010 accused was arrested and was charged with importing 2.38 kilograms of heroin into Canada. He was in custody since date of arrest. Total time between arrest and trial date of May 22, 2012 was 26 months. Accused obtained Legal Aid certificate and retained lawyer as of August 10, 2010. On Sept. 17, 2010 accused advised court that he changed lawyers and his new lawyer asked for twoweek adjournment. Matter was frequently adjourned because Legal Aid refused to allow accused to change solicitors and accused was only able to obtain state funding for replacement lawyer on Nov. 9, 2011. Application dismissed. Crown made every reasonable effort to move case forward. Period of 15.5 months of delay for accused to obtain funding for counsel of his choice was not attributable to action or inaction of Crown or to institutional causes. Even though accused was in custody for 26 months, which in normal circumstances would be considered prejudicial, there was no evidence that accused���s ability to make full answer and defence was compromised as result of delay. Societal interest in having trial for serious charge that accused faced outweighed delay that occurred because accused wanted to change counsel. Section 11(b) was therefore not violated. R. v. Boateng (Sep. 13, 2012, Ont. S.C.J., Seppi J., File No. CRIMJ(F) 1331/11) 104 W.C.B. (2d) 925. LT

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