Law Times

Law Times • April 29, 2013 customers the same and facilitated efficient administration of securities firms consistent with Act. Customer's interpretation would impose narrow interpretation on broad settlement language used in definition of "net equity" and was inconsistent with goals and purposes of Part XII by allowing futures customers to obtain special treatment in respect of futures contracts based on type of securities held, and would impede efficient and timely estate administration. Part XII provided pool of recovery from liquidation and fact that customer did not recover all its losses did not mean it was disadvantaged. MF Global Canada Co., Re (Dec. 7, 2012, Ont. S.C.J. [Commercial List], C. Campbell J., File No. 31-OR-207854-T) 224 A.C.W.S. (3d) 20. Torts LIBEL AND SLANDER Nothing on web site created innuendo plaintiffs were untrustworthy Action by two HVAC companies against Better Business Bureau for libel. BBB published opinions on Internet that customers could search by company name and created reliability reports. Prior to January 2009, reports were characterized as satisfactory, neutral or unsatisfactory. In January 2009, BBB began using letter grades. Plaintiffs were members of BBB until resigning in 2007 because they did not like BBB's complaint process. Prior to January 2009, first company's rating was neutral and second company's was unsatisfactory, based on failure to respond to complaints. When system was changed to letter grades, first company's rating became B and second company's rating became D-. Plaintiffs alleged changes to letter grades was libellous and they were graded lower than other HVAC companies. Plaintiffs also alleged second company rating was further libellous because it referred to unanswered complaints when there was only one. Action dismissed. First company consented to neutral rating and complaint being posted as unanswered. In normal meaning of words, neutral to B rating, which was described as 84 per cent 86.99 per cent rating, was actually an improvement and was not libellous. First company reliability report clearly indicated there was only one unresolved complaint and first company never complaint about neutral rating. Context of rating was explained in detail on BBB web site, with disclaimer than they were not guaranteed as to accuracy. Ratings did not provide any comparison to other HVAC companies and all companies were evaluated with same method. Prior to 2009, second company was rated as unsatisfactory because of unresolved complaints, which was same basis for D- rating. D- was described as 66 per cent to 63.99 per cent, which Page 15 CASELAW did not appear to be worse than unsatisfactory rating. Reliability report stated only one complaint was not responded to and, against disclaimer was provided and second company never objected to unsatisfactory rating or basis for it. Plaintiffs had been BBB members and knew it was necessary to respond to complaints or their ratings would be diminished. Nothing on website created innuendo that plaintiffs were untrustworthy or should not be dealt with by the public. Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Inc. / Bureau d'éthique commercial d'Ottawa-Hull Inc. (Dec. 12, 2012, Ont. S.C.J., Hugh R. McLean J., File No. CV-0944653) 224 A.C.W.S. (3d) 228. General damages of $425,000 for false and misleading statements made with malice Plaintiff terminated defendants' franchise agreement. Defendants commenced action for wrongful termination, including for interlocutory injunction. Court denied injunction. Defendant pursued persistent campaign to damage plaintiff 's reputation, including by statements to suppliers, landlords, competitors and other franchisees. Plaintiff commenced defamation action. No defences filed. Plaintiff 's default judgment motion granted. Statements attacked goodwill, trust and confidence. Statements cast negative light on plaintiff 's reputation as franchisor and restaurateur. Statements false, misleading and made with malice. Plaintiff awarded $425,000 general damages. "High side" award intended to vindicate plaintiff 's reputation. Plaintiff awarded punitive damages of $75,000. Defendants permanently enjoined from making statements about plaintiff accept in court documents or open court. Plaintiff awarded costs of $25,000. 122164 Canada Ltd. v. C.M. Takacs Holdings Corp. (Nov. 7, 2012, Ont. S.C.J., Ellen Macdonald J., File No. CV-12454607) 224 A.C.W.S. (3d) 229. Trusts and Trustees TRUSTEES Reasonable person would not retain agent who just resigned as result of conflict of interest Trust owned 50 per cent of shares in business. Deceased's brother owned other 50 per cent of shares. There was dispute between trust and brother over buy-out and value of shares. Brother brought action against trust. Former estate trustee who was long-time accountant for business and brother resigned because of conflict of interest. Parents of brother and deceased were named estate trustees. Parents retained former estate trustee as agent to administer and operate trust. Parents were removed as estate trustees. Parents brought application for passing of accounts. Beneficiaries filed notice of objection. Trustees ought to have received com- pensation of $3,927. Expenses incurred as result of former trustee's administration services were to be borne by trustees. Reasonable prudent business person would not retain agent to act in capacity of administrator of trust when agent was trustee who just resigned as result of conflict of interest. Commissioning of BDO share valuation report was unreasonable and unnecessary and costs of report were not allowed as proper expense to be borne by trust. Payments and disbursements were disallowed. Trustees were to repay disallowed amounts to trust or into court to credit of application within 90 days. Steven Thompson Family Trust v. Thompson (Dec. 14, 2012, Ont. S.C.J., J.R. McCarthy J., File No. CV-11-0000082) 224 A.C.W.S. (3d) 233. Wills and Estates WILLS No need to create uncertainty where none existed Deceased had insurance policies. Deceased designated respondents as beneficiaries. Deceased died leaving will. Will provided proceeds of insurance policy were to be paid to applicant. Applicant sought order that he was designated beneficiary of insurance policies and sought payment of proceeds. Foundation sought to rectify will to remove insurance clause. Applicant's application was allowed. Respondents' application was dismissed. Proceeds of insurance policies were captured by insurance clause in will and were to be paid to applicant. There was no need to create uncertainty where none existed and admissibility of evidence of individual was rejected where it might suggest deceased's intentions regarding disputed funds. Surrounding circumstances did not help respondents. Succession Law Reform Act (Ont.), had no application to effect of insurance clause. Cunningham v. Quadrus Charitable Giving Program (Nov. 20, 2012, Ont. S.C.J., Bruce Thomas J., File No. CV-11-10798, CV11-17257) 224 A.C.W.S. (3d) 237. ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Troubling complainant only went to police after difficulties in obtaining sole custody Trial of accused for one count of assault and for two counts of sexual assault. Complainant was accused's wife. Assault was alleged to have occurred on April 30, 2009 after parties' adopted child hit complainant. Sexual assaults were alleged to have occurred on January 31 and October 10, 2010. Incidents were reported to police in early January www.lawtimesnews.com 2011 and accused was charged shortly thereafter. Accused denied all allegations against him. Parties met in July 1998 and they became engaged in July 1999. They married in August 2001 and they eventually moved to home in neighbourhood where their neighbours were extremely friendly. For two years after they married complainant unsuccessfully tried to get pregnant. Parties adopted six-year old boy and adoption was finalized in March 2010. They then had to adjust to addition of child to their lives, which resulted in stress. Complainant developed intense friendship with male neighbour and accused left matrimonial home on November 11, 2010 as he realized that his marriage was finished. She went to police in January 2011 after she was unable to obtain sole custody order. Accused acquitted of all offences. Case turned almost exclusively on credibility of accused and complainant. Court had reasonable doubt that accused assaulted complainant and it accepted that he was trying to calm her down after child hit her. Regarding first sexual assault accused's evidence that it did not happen was accepted. Court also believed accused's testimony about second sexual assault. Complainant's evidence was problematic, particularly since she provided three versions of this incident. It was also troubling that complainant only went to police after she ran into difficulties when she applied for sole custody. R. v. L. (R.) (Feb. 27, 2013, Ont. S.C.J., E. Ria Tzimas J., File No. 1603/11) 105 W.C.B. (2d) 12. Charter of Rights ENFORCEMENT OF RIGHTS Officer made only passing reference to right to counsel Application by accused to exclude statements that she gave to police because her right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was violated. Accused was charged with aggravated assault and mischief. At issue were two of four statements she made to police. First statement was made in police cruiser after accused was arrested for assault causing bodily harm and it was made before she was driven to police station. Officer informed accused of her right to counsel but he received no answer when he asked if she understood. When officer arrived at station he did not advise officer-in-charge about problem with determining accused's comprehension of right to counsel. Second statement was videotaped statement accused gave to officer for almost two hours. That statement was given four hours after she was arrested and by then she was charged with aggravated assault and mischief. There was no evidence that accused was told about these charges before she was interviewed. During inter- view officer made only passing reference to right to counsel and there was no discussion as to whether she understood it, whether she exercised her rights or waived them. Application allowed. Videotaped statement was given voluntarily. Right to counsel was violated and both statements were excluded. R. v. Theoret (Feb. 28, 2013, Ont. S.C.J., Durno J., File No. CR-111614-00) 105 W.C.B. (2d) 20. Drug Offences IMPORTING Surveillance evidence clearly showed accused was inner member of conspiracy Accused charged with importation of cocaine into Canada and possession of cocaine for purpose of trafficking. Crown alleged that accused with co-accused and others were involved in common criminal design or plan to import cocaine into Canada from Panama: accused's role was to collect package, containing quantity of cocaine delivered by mail to address; after pick-up, he turned it over to co-accused and thereafter he participated in distribution of drug. Crown's case, circumstantial in nature, consisted largely of telephone communications intercepted, surveillance observations of movements of accused and co-accused, and search warrants seizures made at residences associated with accused and co-accused. After execution of search warrants police found 103.14 grams of cocaine rolled up in clear bag inside yellow No Frills bag in closet in residence of co-accused; rectangular package and wrapping paper sent from Panama was found in garbage bin at rear of co-accused's residence; wrapping and box tested positive for cocaine; police found two cell phones with same numbers used by coaccused in intercepts. Accused convicted. Court found importing conspiracy alleged by Crown existed. Surveillance and intercept evidence clearly showed accused was inner member of said conspiracy. Notwithstanding Court's finding that accused signed for package containing cocaine did not turn on impugned package tracking record; rather, it was based on his actions in receipt of package, his signing for it as seen and videotaped by police, his turning over similar shaped package in yellow No Frills bag to former co-accused, and wrapping of which tested positive for cocaine, reasonable inference in all of circumstances was that accused knew thing being shipped was cocaine based on his intercepted conversations with former co-accused, his use of address associated with him for delivery, his role in attending to pick up and sign for the package, and to share in the proceeds of deal. R. v. Malcolm (Dec. 12, 2012, Ont. S.C.J., A.J. O'Marra J., File No. 50000746/12) 105 W.C.B. (2d) 40. LT

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