Law Times

Page 14 June 24, 2013 Law Times • caselaw break and enter and theft of marijuana and other items excluded. Interviewing officer comprehensively and scrupulously complied with requirements of both s. 10(b) of Charter and s. 146(2) and (4) of Youth Criminal Justice Act (Can.). After providing information about various rights, officer consistently asked simple follow-up questions that required accused to respond in way that demonstrated whether he understood his rights and his options. Accused's jeopardy changed noticeably when he started to talk about crimes that were both different and potentially more serious than that with which he had already been charged. Officer's further questions were patently investigatory. R. v. T. (D.) (Apr. 18, 2013, Ont. C.A., J.C. MacPherson J.A., J. MacFarland J.A., and S.E. Pepall J.A., File No. CA C52996) 106 W.C.B. (2d) 309. Murder FIRST DEGREE MURDER Trial judge properly admitted witness' identification evidence Accused appealed his conviction for two counts of first degree murder. Grounds of appeal all related to trial judge's treatment of eyewitness evidence of one man. Crown alleged that accused and his very close friend went to motel room under pretense of selling drugs to man who they planned to rob. They knew that man had great deal of cash. Crown eyewitness was in motel room with that man. Shortly after accused and his friend arrived, his friend attacked victim. Accused stood near doorway, pointing gun at victim and eye witness. Accused's friend attempted to subdue victim and struggle ensued. Accused fired single shot that passed through victim's head, killing him instantly, and into accused's friend's chest. Accused's friend was badly hurt. He ran from room and accused followed. Accused's friend's body was found in nearby parking lot. Accused fled scene going over fence and across nearby construction site. He surrendered to police few days later. Identity was only issue at trial. Defence maintained that although accused was with his friend on his first visit to motel room, someone else was with his friend when he returned to the motel room to commit robbery. Another witness saw accused's friend in parking lot with another man before that man fled. Witness' description of that man did not resemble accused, nor did he pick accused out of lineup. Appeal dismissed. Absent prejudice, trial judge cannot exclude evidence solely on basis that judge thinks that evidence has little probative value. Trial judge properly admitted witness' identification evidence. Trial judge's decision not to admit expert evidence regarding general weaknesses of eyewitness testimony was matter of discretion for which court would not interfere. Instruction on eyewitness identification was detailed and comprehensive. Jury having heard trial judge's instructions, particularly after hearing defence counsel's closing address, would have no doubt about dangers inherent in identification evidence; caution was adequate. R. v. Frimpong (Apr. 18, 2013, Ont. C.A., Doherty J.A., J.C. MacPherson J.A., and E.A. Cronk J.A., File No. CA C53147) 106 W.C.B. (2d) 326. ONTARIO CIVIL CASES Bankruptcy and Insolvency DISCHARGE Judgment debt survived bankruptcy Application for declaration that judgment debt survived bankruptcy of respondent. Respondent had been president of applicant company. Applicant obtained summary judgment finding that respondent had misappropriated funds while acting in fiduciary capacity. Respondent had not been declared bankrupt. Application granted. Bankruptcy was not precondition to determination of whether debt was of a nature that brought it within s. 178(1)(d) of Bankruptcy and Insolvency Act (Can.). Judgment debt survived bankruptcy. Declaration not merely hypothetical. Sunwell Investments Ltd. v. Cheung (Jan. 22, 2013, Ont. S.C.J., Goldstein J., File No. CV-12-464348) 226 A.C.W.S. (3d) 340. Building Liens TRUST Contractor appropriating funds for its own use inconsistent with trust Contractor and project owners entered into fixed price construction agreement relating to construction of aircraft hangar. Project owners paid contractor deposit for commencement of fabrication of pre-engineered metal building components for hangar. Contractor retained plaintiff to fabricate and furnish pre-engineered metal building components but failed to make any payments pursuant to plaintiff 's invoice. Plaintiff registered claim for lien on improved property. Project owners made direct partial payment to plaintiff but over $50,000 remained outstanding. Contractor maintained that project owners owe over $120,000 to contractor. Plaintiff applied for summary judgment on basis that moneys received by contractor were subject to trust and against individual defendants for breach of trust committed by contractor. To prove existence of trust, claimant must demonstrate that contractor received moneys on account of contract price for particular project, that claimant supplied services or materials on project and that contractor owes money to claimant for those services or materials. Evidence established that deposit moneys received by contractor were on account of contract with project owners, that plaintiff supplied services and materials to project and that plaintiff was still owed over $50,000 for those services and materials; deposit moneys therefore subject to trust. Obligations of trustee apply to both deposit and monies due and owing. Defendants failed to raise any kind of meaningful defence. Fact that contractor may have right to bring third party proceedings against project owners of no relevance. Contractor appropriated or converted funds for its own use inconsistent with trust; contractor therefore breached its obligation as trustee. Both defendants, as directors or officers, knew or ought to have known that payments were made out of trust funds in contravention of trust; defendants jointly and severally liable for breach of trust. Varco Pruden Buildings v. Thom Win Construction Ltd. (Feb. 22, 2013, Ont. S.C.J., McCarthy J., File No. Barrie CV-12-0196 SR) 226 A.C.W.S. (3d) 397. Civil Procedure PLEADINGS Prior acts of negligence not probative in absence of high degree of similarity Motion by defendant for order striking out paragraphs of amended statement of claim. Claim sought damages from defendant for negligence in provision of antenatal care to plaintiff. Defendant sought to strike out paragraph alluding to other errors made by defendant, proceedings before College of Physicians and Surgeons and similar fact evidence. Defendant sought to strike out those portions of another paragraph that stated that he should have advised plaintiff of other complaints made about him and lawsuits commenced against him. Motion granted. Both paragraphs were struck out. Prior acts of negligence were not probative in absence of high degree of similarity and could not be used to prove negligence in plaintiff 's claim. Any reference to complaints or proceedings before college were not permitted by statute and had to be struck out. There was no duty on physician to disclose to patient existence of complaints made against him to hospitals and to college or to disclose lawsuits commenced against him. Inclusion of both paragraphs would lead to overbroad examination for discovery. Woods (Litigation Guardian of) v. Jackiewicz (Jan. 23, 2013, Ont. S.C.J., Murray J., File No. 3846/11) 226 A.C.W.S. (3d) 377. Contracts BUILDING CONTRACTS Construction contract was part of real estate transaction Plaintiff sought damages for breach of contract. Parties entered into contract of purchase and sale and construction contract in which defendants purchased building lot from plaintiff and plaintiff contracted to build defendants custom home on lot. In midst of construction plaintiff claimed that defendant terminatwww.lawtimesnews.com ed construction contract without cause. Defendants relied on Consumer Protection Act, 2002 (Ont.), and common law and maintained that they terminated construction contract because plaintiff exceeded cost estimate of project, invoiced them for services unrelated to construction contract and failed to meet construction schedule. Judgment for plaintiff. Agreement for purchase and sale and construction contract constituted one agreement. Construction contract did not stand on its own. Construction contract was part of real estate transaction and was exempt from coverage pursuant to s. 2(2)(f) of Act. Act did not apply. Defendants had not established any other grounds to terminate construction contract. Plaintiff did not exceed budget estimate. Plaintiff did not delay construction, but defendants were responsible for delaying project. Defendants' actions brought construction to end before completion. Cost discrepancies did not go to heart of construction contract. Plaintiff did not trespass on defendants' land after contract was terminated. Any entry by plaintiff was in accordance with restrictive covenants and was not trespass. Plaintiff 's claim to damages of $173,924 was excessive. Plaintiff was entitled to damages of $34,921 plus interest at 5% per annum. B.C.R. Construction Inc. v. Humphrey (Feb. 11, 2013, Ont. S.C.J., A. Sosna J., File No. 08/57111) 226 A.C.W.S. (3d) 399. PERFORMANCE AND BREACH Liability for alleged fundamental breach excluded under contract Plaintiff purchased water scanner from defendant. Plaintiff refused to pay balance owing because of alleged failure of unit to perform as required. Plaintiff sought amount paid based on breach of implied warranty of reasonable fitness for purpose and alternatively fundamental breach of contract. Plaintiff refused to permit defendant to repair minor oil leak. Defendant was granted judgment. Claim was dismissed. Parties agreed as term of contract to exclude implied warranty of reasonable fitness for purpose under Sale of Goods Act (Ont.). There was no breach of implied warranty even if it had not been excluded by contract. Liability for alleged fundamental breach was excluded under contract. There was nothing unconscionable or unreasonable in holding plaintiff to its bargain. Court was not persuaded there was fundamental breach. Plaintiff was not deprived of substantially whole benefit of contract. Eprons Rov v. 2G Robotics Inc. (Mar. 1, 2013, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 2653/11) 226 A.C.W.S. (3d) 401. Courts ABUSE OF PROCESS Respondent brought motions and appeals for purpose of harassing opponents Respondent claimed damages for negligent dental treatment. Respondent was granted leave to amend claim. Respondent amended claim raising damages sought to $40 million. Applicant sought order that respondent was vexatious litigant and that no further proceedings be initiated by respondent except with leave of court. Applicant sought order for action commenced by respondent should be stayed. Application was allowed. Respondent was ordered to institute no further proceedings except by leave of court. Action was permanently stayed. Respondent persistently attempted to relitigate issues already determined by court. Respondent brought claims and amended claims that no reasonable person could expect to win. Respondent brought motions and appeals that appeared to be for purpose of harassing opponents. Respondent failed to pay costs and brought claims against lawyers acting against respondent. Respondent's continued litigious conduct became oppressive to applicant and applicant's counsel. Yae v. Park (Mar. 4, 2013, Ont. S.C.J., Morgan J., File No. CV12-466666) 226 A.C.W.S. (3d) 409. Employment WRONGFUL DISMISSAL Plaintiff suffered mental distress beyond normal distress and damages awarded at $30,000 Plaintiff was dismissed without cause from his position as fulltime Fire Chief with defendant municipality. Plaintiff received no procedural fairness. Defendant municipal councillors who voted to terminate plaintiff completed virtually no investigation in order to determine if there was any substance to their purported concerns, nor was plaintiff advised of those concerns. Plaintiff was not provided with specific reasons for his dismissal; was not paid his statutory minimums; despite being dismissed without cause, there was no letter of recommendation provided, which was bound to have effect on plaintiff 's ability to secure one of limited number of positions available as rural Fire Chief; and his record of employment provided, on face of document, that plaintiff did not meet expectations of his position although there was no real evidence to support that statement. Being dismissed in this manner caused plaintiff embarrassment and damage to his self-worth and self-esteem. It was belittling, interfered with his sleep, and caused strain in his relationship with others. Any employer, including these defendants, would know that this would be likely result if employee was unfairly terminated. Plaintiff suffered mental distress beyond normal distress and hurt feelings from dismissal and was entitled to award of aggravated damages awarded at $30,000. 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