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Law Times • June 17, 2013 have been submitted to arbitration except in specific circumstances including where matter proper one for default or summary judgment. On evidence, parties clearly intended all disputes under shareholder agreement to be submitted to arbitration. Applicants' suggestion to contrary without merit. While limitation issue could be dealt with by arbitrator, convenient for court to do so now. Two-year limitation period did not begin to run until April 2011, when value of shares fixed and applicants refused to pay. Limitation period ceased to run when respondent gave notice of intent to proceed to arbitration in July 2012. Matter should proceed to arbitration. Foglia v. Coccimiglio (Feb. 20, 2013, Ont. S.C.J., Ellies J., File No. 26027/12) 226 A.C.W.S. (3d) 18. Contracts SPECIFIC ENFORCEMENT Evidence insufficient to determine which agreement governed employment relationship Motion for injunction enforcing non-competition clause in employment contract. Plaintiff operated six medical spa clinics in Greater Toronto Area. In January 2007, plaintiff hired defendant to work as sales person. Plaintiff claimed employment relationship governed by "subcontract agreement", signed by both parties, which contained non-competition clause prohibiting defendant from working or have any interest in medical spa or weight loss centre business within 20 mile radius of any of plaintiff's locations for 24 months after termination. Defendant claimed employment relationship governed by "sales staff employment agreement", signed only by defendant, which contained non-competition clause referring only to weight loss centre businesses. Defendant claimed to have never seen subcontract agreement prior to litigation. In October 2012, defendant resigned and commenced employment as director of business development with what plaintiff described as competing medical spa but which defendant described as medical spa but not weight loss centre. Plaintiff alleged defendant then began soliciting plaintiff's customers and employees, but did not provide any evidence of such conduct. Defendant denied allegation. Motion denied. Evidence insufficient to determine which agreement governed employment relationship. For purposes of motion, appropriate to assume broader subcontract agreement claimed by moving party governed. While covenants in restraint of trade generally unenforceable as contrary to public interest, such covenants could be enforced where reasonable in circumstances. Scope of activity, duration and geography of restriction all relevant. To be enforceable, covenant had to be no broader than reasonably required to afford adequate protection to employer. Twenty-fourmonth restriction unreasonable in circumstances here. Difficult Page 15 CASELAW to envision why plaintiff would need two years to deal with clients and prospective clients to protect business interests or to hire someone to replace defendant. Even if non-competition agreement enforceable, plaintiff provided no evidence of irreparable harm and balance of convenience favoured defendant. 1003126 Ontario Ltd. v. DiCarlo (Feb. 22, 2013, Ont. S.C.J., M.L. Edwards J., File No. CV-12111785-00) 226 A.C.W.S. (3d) 117. Family Law CUSTODY No suggestion father has learned how to stop alienating behaviour Father was found to be alienating children from mother. Order granted mother custody and father supervised access. Order stated that father must attend counselling and other programs prior to obtaining unsupervised access. Father applied for unsupervised access and to have children returned to his care. Mother sought to have telephone access discontinued. Telephone access clearly not going well and not in best interests of children; no benefit of having it continue. Nothing in material indicating access should become unsupervised or custody changed. Father continues to raise adult issues with children and continues to be of view he is proper parent to have custody while downplaying mother's role. No suggestion father has learned how to stop alienating behaviour. Possibility continues that father will take children to Iran if granted unsupervised access. Milanizadeh v. Zeinali (Feb. 14, 2013, Ont. S.C.J., Mary Marshman J., File No. F1801/01) 226 A.C.W.S. (3d) 159. SUPPORT Dependency founded need for spousal support Parties lived in common law relationship for 17 years, ending in December 2011. Applicant requested temporary spousal support commencing in October 2012. Applicant, aged 44, was legally blind and HIV positive. Applicant described acting as full-time homemaker while respondent advanced career. Applicant's income was $13,162 in disability benefits. Respondent's 2011 income was $379,658. Applicant's monthly budget was $1,900. Respondent's monthly budget was $29,000. Respondent's position monthly budget included over $12,000 in personal income taxes, and $8,000 to purchase shares in company. Respondent objected high temporary award would prejudice defence to claim for spousal support. Applicant requested court apply spousal support advisory guidelines, or review net disposable incomes. Applicant requested temporary spousal support of between $10,000 and $12,000 monthly. Applicant established prima facie case for entitlement to temporary support. Parties resided together in lengthy relationship. Difficult to accept respondent's evidence there was no economic integration. Applicant was dependent on respondent for majority of relationship. Dependency founded need for spousal support. Parties' circumstances considered pursuant to s. 33(9) of Family Law Act (Ont.). Court used Guidelines as tool. Guidelines indicated range from $7,989 to $10,652. Respondent ordered to pay $9,400 monthly commencing in January 2013. Award without prejudice to applicant's claim to retroactive support from separation. Timetable for proceeding established. Smith v. MacSween (Feb. 12, 2013, Ont. S.C.J., S.M. Stevenson J., File No. FS-12-18304) 226 A.C.W.S. (3d) 193. Insurance AUTOMOBILE INSURANCE United States of America included United States Virgin Islands for insurance purposes Application by respondent for order dismissing application and for declaration of entitlement to benefits. In January 2012, respondent seriously injured as passenger in motor vehicle accident while vacationing on island of St. Thomas in United States Virgin Islands ("USVI"). Respondent then insured under automobile insurance policy issued by applicant insurer which included endorsement for underinsurance coverage. Respondent applied to insurer for both statutory accident benefits and underinsurance coverage. Insurer brought application to deny coverage on basis accident occurred outside territorial limits of Insurance Act (Ont.), Statutory Accident Benefits Schedule (Ont.), and policy. Respondent brought within application requiring court to determine whether term "United States of America" should be interpreted to include USVI for purposes of statutory accident benefits and underinsurance coverage. Application allowed. Term "United States of America" inherently complex and ambiguous since term could include 48 continental states, two non-continental states, District of Columbia, three unincorporated organized territories (such as USVI), ten unincorporated unorganized territories, extraterritorial jurisdiction of Guantanamo Bay or various combinations thereof. Proper and only approach to interpreting ambiguous term required reading words in entire context, in grammatical and ordinary sense harmoniously with scheme of statute, object of statute and intention of Parliament. Considering term in grammatical and ordinary sense did not provide any obvious answer. Strict interpretation (50 states only) would exclude District of Columbia. Rational result required more liberal interpretation. Issue never considered by Canadian or American court. Main objective of insurance law to ensure accident victims had coverage so as not to be placed at financial hardship. Objective favoured inclusive rather than restrictive interpretation. No evidence concerning Parliament's www.lawtimesnews.com intent available. Since statutory construction unable to resolve ambiguity, doctrine of contra proferentum applied. Insurer offered no evidence interpretation would open floodgates. United State of America included USVI for these purposes. Respondent entitled to statutory accident benefits and underinsurance coverage. TD General Insurance Co. v. Baughan (Mar. 8, 2013, Ont. S.C.J., Ellen Macdonald J., File No. CV-12-460508) 226 A.C.W.S. (3d) 249. ONTARIO CRIMINAL CASES Arson ELEMENTS OF OFFENCE Whether mens rea for offences of attempt includes recklessness is unsettled are of law Appeal from conviction. Accused pleaded guilty to two counts of mischief and was tried by judge and jury on one count of arson. In response to question from jury about causation, trial judge instructed jury for first time on included offence of attempted arson. In doing so, trial judge described mens rea for included offence of attempted arson as including both actual intent and recklessness. Ultimately, jury acquitted accused of arson but convicted him of attempted arson. Appeal from conviction for attempted arson allowed. Conviction set aside and new trial ordered. Whether mens rea for offences of attempt includes recklessness is unsettled area of law. Trial judge ought not to have given instruction she did. Trial judge raised issue of attempted arson herself and did so only after her main charge and in response to question from jury. In result, defence counsel had no realistic opportunity to research elements of included offence or to make submissions on whether recklessness could form mens rea of included offence. Equally important, defence counsel had no opportunity to address this theory of liability in his closing address to jury. Given accused's conviction for attempted arson, procedure used required new trial. R. v. Ravindhraraj (Mar. 14, 2013, Ont. C.A., Goudge J.A., Simmons J.A., and Tulloch J.A., File No. CA C55820) 106 W.C.B. (2d) 166. Appeal PLEA OF GUILTY Accused's decision to plead guilty based on erroneous legal advice After pleading guilty to driving having consumed excess alcohol, accused appealed, contending his guilty plea was invalid because it was not informed: despite obtaining advice from immigration lawyer regarding potential consequences from conviction, advice he received was incorrect. Accordingly, he did not realize consequences of his plea. Accused was from Australia and working at Veterinary College in tenure-track faculty position on three year work permit. Accused was told that since Americans do not regard "over 80" convictions as crimes involving moral turpitude, he should be able to travel to Unites States although he should carry documentation to show nature of charge and that conviction should not be issue regarding permanent residency because "over 80" conviction generally does not result in jail sentence of greater than 10 years. Contrary to advice he received, upon any conviction for offence for which offender was liable to receive sentence of ten years if prosecuted by indictment, regardless of Crown's actual election, offender was inadmissible to Canada on grounds of serious criminality. Plea quashed, new trial ordered. Accused's decision to plead guilty was based in part upon erroneous legal advice he received about immigration consequences of conviction. Accused realized within weeks of his conviction that he had received inaccurate advice and sought to pursue appeal, as opposed to seeking to withdraw plea years later. Accused directed his mind to implications on date he was charged and received legal advice from counsel recommended by university to provide advice on immigration issues. Accused received advice and relied upon it; his trial counsel understandably deferred to immigration counsel's advice. Court accepted that accused honestly believed there would be no immigration concerns. R. v. Meehan (Apr. 5, 2013, Ont. S.C.J., Durno J., File No. Guelph 131/12) 106 W.C.B. (2d) 160. Disclosure DUTY ON CROWN Occurrence reports of prior sexual assault complaints not "records" Jury convicting accused of sexual assault in relation to violent assaults against two complainants. Accused testifying, denying allegations, case turning entirely on credibility. Accused learning through media reports complainant made prior complaints of sexual assault against others, and sought disclosure of occurrence reports. Trial judge holding regime in s. 278.2 applied as occurrence reports in sexual assault matters were "records" as defined by s. 271.1. Appeal from conviction allowed, new trial ordered. Occurrence reports of prior sexual assault complaints not "records" for which complainant had reasonable expectation of privacy. Object, intention of s. 278.2 indicate police-made occurrence reports not part of s. 278 regime. Section 278 regime designed to protect therapeutic, trust-like relationships of confidence to treat sexual assault victims. Police-made records excluded under s. 278.1 definition not limited to only those relating to specific offence in issue. As records not produced, no way of telling impact on cross-examination, new trial must be ordered. R. v. Quesnelle (Mar. 26, 2013, Ont. C.A., J. MacFarland J.A., M. Rosenberg J.A., and Robert J. Sharpe J.A., File No. CA C53116) 106 W.C.B. (2d) 195. LT

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