Law Times

Law Times • June 3, 2013 conduct that disentitled him to costs. Father was awarded costs. Costs were not deferred to trial. No finding of bad faith was made. However, mother acted unreasonably in not providing notice of motion. Motion was important. It was not complex, but it was made difficult by manner in which it was framed as urgent. Motion created significant risk for both parents and removed opportunity for calm consideration of alternatives. Time spent on father's affidavits was not disproportionate given nature of mother's allegations. Father was awarded costs of $12,000, inclusive of disbursements and HST, payable forthwith. Lee v. Belperio (Nov. 13, 2012, Ont. S.C.J., H.A. McGee J., File No. FC-11-038687) Additional reasons to 225 A.C.W.S. (3d) 751. 225 A.C.W.S. (3d) 726 Husband guilty of unreasonable conduct ordered to pay wife costs of $924,057 Husband brought application to set aside marriage contract and determine equalization, spousal support arrears and child support arrears. Husband added lawyers as added respondents. Wife succeeded on every issue. Wife requested costs of $950,624. Husband's position added respondent not entitled to costs, on basis none claimed. Added respondents conducted themselves in manner as to make it obvious they sought costs. No basis on which to require added respondents indemnify wife for costs not recovered from husband. Added respondent lawyer made mistake sparking litigation. Husband's conduct raged litigation into massive fire. Husband was ordered to pay wife costs of $924,057. Husband was ordered to pay added party costs of $403,693. Husband guilty of unreasonable conduct throughout litigation, including: one-year delay of trial; refusal to admit; and failure to make accurate and complete disclosure. Husband drove up costs of litigation in reckless disregard of ultimate consequences. Husband improperly sought relief from court ordered support. Husband had company pay for legal fees. Husband and wife each owned 35% of company. Husband was awarded mistake in marriage contract, and sought to take advantage of it. Wife and added party offered to settle action reasonably. Wife accepted added party's offer. Issues multiple and complex, made more so by husband's inadequate disclosure, unreasonable behaviour and bad faith. Costs claims for office supplies and associated expenses disallowed. No basis on which to relieve husband from paying costs on basis of financial hardship. Costs award commensurate with value of husband's assets and compensation. Stevens v. Stevens (Dec. 3, 2012, Ont. S.C.J., R. John Harper J., File No. FS-08-340704-0000) Additional reasons to 213 A.C.W.S. (3d) 949. 225 A.C.W.S. (3d) 728. Page 15 CASELAW Landlord and Tenant EVICTION Safety of residents must trump wishes of respondent to do things his way Application by applicant for order that it be appointed as receiver of respondents' property and building. Respondent was sole director and shareholder of applicant corporation. Respondents were ordered to make changes pursuant to Building Code Act, 1992 (Ont.). Respondents did not comply with order and were held in contempt. Application granted. It was ordered that applicant be appointed as receiver of respondents for purpose of bringing about evictions of residential tenants at respondents' property. There was no reasonable basis to believe that compliance with outstanding orders by respondents was possible. Respondents had simply decided to do what they want when they want, regardless of law and orders of court. Court had given respondents ample time and numerous opportunities to purge their contempt. Work to bring building into compliance with Act had not yet been completed despite passage of so much time. Safety of residents and compliance with law must trump wishes of respondent to continue to do things his way. Norfolk (County) v. 1313567 Ontario Inc. (Feb. 7, 2013, Ont. S.C.J., Turnbull J., File No. CV09-27) 225 A.C.W.S. (3d) 814. Natural Resources WATER AND WATERCOURSES Accessing pole dock did not overburden use of right of way Appellants owned fifty-acre parcel of land near but not abutting lake. Conveyance by which they acquired property granted registered right of way over lands owned in trust by respondents. Easement ran from appellants' property across respondents' property to edge of lake. Bed of lake was Crown land and was controlled by local Conservation Authority. After obtaining necessary permit from Conservation Authority, appellants built pole dock on bed of lake at water's edge where right of way ends. Set of retractable steps was attached to inner end of dock. It was not attached to land but could be lowered to shore to permit access from right of way. Respondents took position that use of pole dock was beyond scope of right of way. Trial judge agreed with respondents and issued order restraining appellants from using pole dock and declaration that their use of right of way did not include access from shoreline to pole dock, but was limited to particular purpose of providing access to lake for persons, animals and vehicles. Appeal allowed. Words of the grant of easement were not confined to particular use as trial judge suggested. General use provided was made available to persons and animals and vehicles. Latter spoke not to use, but to users. Moreover, accessing pole dock from shoreline where right of way ends did not constitute overburdening use of that right of way. Kendrick v. Martin (Oct. 24, 2012, Ont. C.A., O'Connor A.C.J.O., Goudge J.A., and Juriansz J.A., File No. CA C54655) Decision at 208 A.C.W.S. (3d) 866 was reversed in part. 225 A.C.W.S. (3d) 837. Wills and Estates ESTATE ADMINISTRATION Daughter not acting in manner consistent with fiduciary duty Testator died in 1971. Will named daughter and trust company as co-executors and co-trustees. Testator left life interest in cottage to daughter and now-deceased sister. Trustees and executors were given right to list and sell cottage as advised. Daughter's four children were residual beneficiaries. Daughter invested $126,000 into cottage personally. Additional repairs necessary at cost of up to $60,000. Approximately $40,000 owed towards electricity, insurance and tax arrears. Daughter proposed to register private reverse mortgage against cottage for up to $200,000. Trust company proposed to sell cottage. Daughter brought motion to remove trust company as trustee. Motion dismissed. No justification for removal. Removal would change fundamental term of testator's will. Neither co-executor nor three of four children agreed with mother's plan. Daughter in conflict between desire to maintain life interest in cottage and fiduciary obligation to preserve trust assets. Daughter not acting in manner consistent with fiduciary duty. Even under proposal, debts would consume substantial portion of available funds. Testator's insufficient capital provision for cottage's maintenance an unforeseen circumstance. Circumstances engaged power under will to list and sell cottage. Grafton Estate v. Canada Trust Co. (Dec. 6, 2012, Ont. S.C.J., Milanetti J., File No. Kitchener ES-78012) 225 A.C.W.S. (3d) 886. ONTARIO CRIMINAL CASES Charter of Rights ENFORCEMENT OF RIGHTS Reasonable expectation of privacy to common areas of condominium building Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused, who lived in condominium building unit, was charged with drug offences. Detective entered building on several occasions without permission as part of ongoing drug investigations. Accused was subject of investigation because of his dealings with drug dealer. On January 21, 2011 detective entered building through side door that was not www.lawtimesnews.com properly closed. He saw dealer enter accused's apartment through window and he departed with box. Box was found to contain marijuana and cocaine. Police obtained warrant to search accused's residence and drugs and drug paraphernalia were located there. Detective acknowledged that he could not enter private property without permission but he maintained that he could enter in furtherance of police investigation. Application allowed. Accused had reasonable expectation of privacy to common areas of condominium building since he had ownership interest in his unit. His rights under s. 8 of Charter were violated by warrantless search of common areas. Police had no statutory authority to conduct that search. Search was unreasonable. Police also had no constitutionally unrestricted right to trespass on private property to conduct search. Detective's search was unreasonable intrusion upon accused's right to privacy. Police acted in bad faith because they did not bother to find out what they were allowed to do under Trespass to Property Act (Ont.), which was law they were supposed to know about without hesitation. Search was warrantless because when illegally obtained evidence was excised from information to obtain there was no basis to obtain warrant. Admitting evidence found in search of home with warrant devoid of legally obtained grounds would bring administration of justice into disrepute. R. v. White (Apr. 5, 2013, Ont. S.C.J., Paul F. Lalonde J., File No. 11-5242) 105 W.C.B. (2d) 693. Jury CONTAMINATION Trial judge has jurisdiction to conduct post-verdict inquiry into extrinsic matters Motion for mistrial or stay of proceedings. Two accused charged with possession of heroin for purpose of trafficking. Jury reached verdict that accused were both guilty; jury was discharged and accused were remanded for sentencing. Shortly afterward Court Services Officer assigned to jury found document in jury room in plain view when cleaning up. Document was sitting on top of binder used by one juror for notes. Document contained excerpt from online article criticizing American jury's acquittal of Casey Anthony of murder of her daughter, accusing juries of "ignorance, failure to use common sense, and inability, or disinclination to properly weigh evidence". Subsequent paragraphs were taken from model jury instructions published by Canadian Judicial Council online. Charge to jury which court delivered to jury in writing, was based upon Ontario Specimen Jury Instructions (Criminal) as modified by trial judge. One accused sought mistrial; other sought inquiry to create record in timely fashion for consideration on appeal. Trial judge generally has no jurisdiction to hear motion for mistrial once jury has been discharged, or to enter stay of proceedings. But even if functus trial judge could not interfere with verdict, inquiry would create a record for court's consideration on appeal. Trial judge does have jurisdiction to conduct post-verdict inquiry into extrinsic matters but not on matters intrinsic to jury's deliberative process. Whether case rose to level of miscarriage of justice would be for Court of Appeal to decide. Given that at least one juror was conducting independent legal research and bringing it into jury room, inquiry warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other jurors. Questions for jurors could be formulated to avoid violating jury secrecy rule. It was necessary to proceed with an inquiry. R. v. Bains (Feb. 12, 2013, Ont. S.C.J., F. Dawson J., File No. CRIM J(F) 1423/11) 105 W.C.B. (2d) 728. Preliminary Inquiry PROCEDURE Absence of judge from part of hearing problematic Application for extraordinary relief to abort preliminary inquiry and recommence before another judge. Accused subject of preliminary inquiry on charge of sexual assault. Reports from the Centre for Forensic Sciences filed saying accused applicant could not be excluded as donor of skin on swabs from complainant and saliva sample from her underwear. Probability of random match was 1 in 870 trillion. Judge said he had formed tentative view evidence was sufficient for committal and suggested balance of inquiry should proceed as discovery, subject to submissions of counsel. Counsel objected to proceeding in absence of judge. Next day counsel took position judge had lost jurisdiction. Judge ruled that he had not. Judge gave counsel opportunity to make submissions as to whether evidence called in his presence was sufficient for committal. Counsel declined but judge ruled evidence sufficient. Application granted, proceedings quashed and preliminary inquiry directed recommenced before Ontario Court of Justice differently constituted. Expressing tentative opinion that evidence heard so far was sufficient did not create reasonable apprehension of bias. However, judge continued inquiry as discovery during interval between announcement of tentative view and time for defence counsel's submissions rather than waiting for them. Appearance of justice required proceedings recommence before different judge. Absence of judge from part of hearing problematic. It was difficult to conceive justice regulating course of contested inquiry when absent. He did not have authority to proceed as he did. Application allowed. R. v. Hossenmamode (Mar. 13, 2013, Ont. S.C.J., J.A. Ramsay J., File No. Hamilton CR123831MO) 105 W.C.B. (2d) 746. LT

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