Law Times

Law Times • November 18, 2013 good light. Communication was entirely irrelevant to any issue before court although it could have an impact on administrative issues, such as whether accused would be permitted to sit at counsel table. Judge presiding over criminal trial has responsibility for trial process, including security of courtroom and safety of participants. Trial judge frequently required to make rulings that screen, exclude or ignore inadmissible evidence. Hypothetical informed person, knowing duty of trial judge to ignore irrelevant, inadmissible or unduly prejudicial evidence, would not reasonably think accused's right to fair trial would be affected by disclosure of such information. Out-of-court communication to judge of unproven information irrelevant to issues in trial, would not affect trial fairness in any way, and was not ground for mistrial. R. v. Brown (Apr. 30, 2013, Ont. S.C.J., G.R. Strathy J., File No. 12-3000114) 109 W.C.B. (2d) 118. DIRECTED VERDICT Trial judge utterly failed to weigh circumstantial evidence Crown appealed decision of trial judge which granted accused's motion for directed verdict on charge of theft under $5,000. Crown argued that trial judge misapplied legal test and failed to properly consider evidence before him, and inferences flowing therefrom, which supported prima facie case against accused. Appeal allowed, decision set aside, matter remitted for trial. Trial judge misapplied test for how circumstantial evidence was to be assessed on motion for directed verdict. Trial judge alluded to circumstantial evidence, but did not classify it as such, stating that there was absolute absence of evidence, although there may have been some suspicion based only on speculation. Trial judge committed palpable and overriding errors, as his conclusion that there was absolute absence of evidence was untenable in light of summary of Crown's evidence. Trial judge utterly failed to weigh circumstantial evidence and to assess whether it was reasonably capable of supporting inferences that Crown asked jury to draw. Trial judge only satisfied himself that there was no direct evidence and then confused distinction between Crown-led circumstantial evidence and inferences. While it was conceivable that trier of fact might have concluded that co-accused acted alone, it would have been open to trier of fact to conclude that accused was involved in theft. Trial judge erred in not considering circumstantial evidence in proper context and in failing to conduct assessment of evidence on that basis of inference that was most favourable to Crown. R. v. Loader-Shea (Sep. 9, 2013, Ont. S.C.J., McCarthy J., File No. CR-13-092AP) 109 W.C.B. (2d) 117. Page 15 CASELAW Weapons GENERAL Inclusion of term "weapon" in "firearm" definition descriptive and not element of definition Police receiving tip accused having been observed pointing weapon at another. Acting on tip, police seized airgun from accused. Airgun being of velocity that could cause serious injury to human eye. Trial judge acquitting accused of weapons offences holding air gun not "weapon" as defined by s. 2 of Criminal Code. Trial judge relying on court of appeal jurisprudence in concluding Crown had to prove air gun was "weapon" as not powder fired shooting gun. Crown's appeal allowed, new trial ordered. Prior appellate jurisprudence was wrongly decided should not be followed. Barreled objects that meeting "firearm" definition in s. 2 not also having to meet definitions of "weapon" to be deemed to be firearms and hence weapons. Inclusion of term "weapon" in "firearm" definition descriptive and not element of definition. Airgun accused possessed "firearm" as barreled object capable of causing serious bodily injury . R. v. Dunn (Sep. 4, 2013, Ont. C.A., Rosenberg J.A., Sharpe J.A., Gillese J.A., Epstein J.A., and Strathy J.A., File No. CA C54975) 109 W.C.B. (2d) 122. Criminal Law Contracts CIVIL FORFEITURE Connection between seized money and criminal activity remained to be proven Individual brought motion under s. 5(1) of Civil Remedies Act, 2001 (Ont.), for payment of legal expenses in order to dispute forfeiture of money. Individual, aged 31, was status Indian and was unemployed. Individual was at Toronto airport going to Panama City. Individual's luggage was x-rayed and airport security officials discovered tightlyrolled Untied States currency of $104,877 in socks in backpack. Small amount of cocaine was also found. Individual offered several different explanations for travelling to Panama City with over $100,000. Police officers did not believe individual. Money was seized. Individual was arrested and charged with criminal offences. Applicant commenced civil forfeiture proceedings. Individual maintained that seized money lawfully belonged to him and he wanted to have it returned and not be forfeited to Crown as money from drug trafficking or some other illegal activity. Individual claimed he had no means to pay lawyer to dispute confiscation of money, which he claimed he lawfully earned. Individual maintained that seized money was his life savings. He had no criminal record and claimed he had not engaged in criminal activities. He claimed he was going to play in high stakes poker game in Panama. Motion granted. Applicant had not been proven guilty of any offence and he had no criminal record. Connection between seized money and criminal activity remained to be proven. Individual was unemployed and was living on social assistance. He had made his best efforts to prove he was impecunious without seized funds. It was not procedurally fair on s. 5 application to set standard of disclosure that went beyond issues of s. 5 motion. It was not necessary for individual to show that he applied for and was not able to obtain legal aid or lawyer who would take case based on contingency fee agreement or pro bono services. Individual had satisfied onus on him of disclosing all interests in property held by him and disclosing all other interests in property that other persons associated with him should reasonably be expected to contribute to payment of legal expenses. Individual was to be paid $6,000 from money held in court for payment of legal expenses. Ontario (Attorney General) v. $104,877 in U.S. Currency (May. 21, 2013, Ont. S.C.J., Perell J., File No. 12-CV-456196) 231 A.C.W.S. (3d) 395. continued therapy now that government funding had ended. Move would provide father with care-giving and financial assistance from partner, which would clearly benefit son. Furthermore, motions judge gave no weight to additional benefits to son likely arise from living with half-brother, with whom he had bonded and which therapist attested would be beneficial. Father was committed to facilitating mother's access, son had no real connection to Waterloo community because of his condition and his support worker was leaving his Waterloo school, so there would be changes whether move occurred or not. Father had arranged for new therapy and education plan in Pickering and was likely to obtain employment with Durham Crown Attorney's office. Move was in child's best interest and permitted. Mother to have access every second weekend from Thursday to Sunday and father to pay $75 per month towards her fuel costs as proposed. Sferruzzi v. Allan (Jul. 23, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C57228) 231 A.C.W.S. (3d) 445. Family Law Limitations CUSTODY Motions judge failed to afford great respect to father's views as custodial parent Appeal by father from motions judge's decision dismissing his motion to permit his relocation from Waterloo to Pickering with child. Parties' son was born in 2006 and was autistic with significant special needs. Father had sole custody of son and mother had access Thursday overnight and Friday evening one week and Thursday overnight and the weekend the other week. Mother lived in Waterloo. Father had been in serious relationship for four years with woman who lived in Pickering; they had son, aged three, together and partner also had two teenagers from previous relationship. Father wanted to move to Pickering so they could all live together as family and mother opposed move because it would reduce her access, increase her access costs and disrupt son's relationships with her family and treatment providers. Motions judge found move was not in son's best interests. Appeal allowed. Motions judge erred in placing burden of proof on father; once material change in circumstances had been established, motions judge was supposed to embark on fresh inquiry into child's best interests. Motions judge also misapprehended father's evidence and failed to afford great respect to his views as custodial parent. Father was primary caregiver of son and move had everything to do with son's best interests. Father had required three stress leaves due to strain of caring for son alone and was uncertain he would be able to afford son's DISCOVERABILITY Question was whether prudent employer would know expense claims were fraudulent Plaintiff commenced wrongful dismissal action in 2007. On eve of matter being in trial scheduling court, defendant moved to amend its statement of defence to add counterclaim for recovery of amounts allegedly improperly reimbursed to plaintiff for personal expenses during course of his employment with defendant. Defendant maintained that it did not become aware of facts that gave rise to allegations relating to improper expenses claimed by plaintiff and reimbursed to plaintiff until defendant reviewed its books and records to answer undertakings that had been given on examination for discovery of defendant's representative, which occurred in early 2012. Plaintiff argued that alleged falsified expenses had been discoverable since essentially time when they would have been submitted by plaintiff. Motion granted. There were facts that may eventually lead to conclusion that part of fiscal arrangement between parties allowed for plaintiff to be reimbursed for personal expenses. As such, when plaintiff 's last pay cheque was cancelled to reimburse defendant for plaintiff 's personal expenses, it could not be said that at that time defendant ought to have known that there may have been facts upon which it could conclude that plaintiff had been submitting unauthorized claims for reimbursement for personal expenses and reimbursement for personal expenses charged to defendant's credit card. While documents that would form potential basis for these www.lawtimesnews.com claims clearly were in possession of defendant and, in fact, many of them had been approved, question was whether or not reasonably prudent employer would know, or ought to have known, that expense claims submitted by plaintiff were essentially fraudulent. Court was not satisfied that it had sufficient evidence before it to conclude that reasonably prudent employer should have discovered basis for potential counterclaim against plaintiff at earlier date than April 2012. This would become question of fact for trial judge to decide as to whether or not defendant could rely on s. 5 of Limitations Act, 2002 (Ont.), or whether as plaintiff asserted, limitation period commenced, at latest, at time of his termination in 2005. Ciavarella v. Atlas Corp. (Jul. 11, 2013, Ont. S.C.J., M.L. Edwards J., File No. CV-07-084135-00) 231 A.C.W.S. (3d) 519. Torts NUISANCE Defendants had no right to construct house with encroachments Parties had adjacent properties. Parties shared mutual driveway comprised by each property being subject to right of way ("ROW") in favour of neighbouring property from common property line. Plaintiffs claimed defendant's new house encroached on ROW. Plaintiffs claimed damages for substantial interference by encroaching on ROW or easement of mutual drive and private nuisance during construction of new house by defendants. Plaintiffs were awarded damages of $6,500 for encroachments. Defendants were within their rights to have built house right to ROW line. Plaintiffs provided no evidence of legal or contractual requirement that house should have been built with setback from ROW line. House did not encroach on ROW line from foundations. House encroached on ROW from stucco. General use of ROW by plaintiffs was not changed and was not affected to substantial degree by new house and encroachments. Defendants were not as careful in maintaining integrity of ROW as defendants ought to have been. Defendants had no right to construct house with encroachments. Defendants could have easily taken reasonable measures to avoid stucco encroachments, but failed to do so. Encroachments derogated from grant constituting substantial interference with plaintiffs' right and enjoyment of ROW. Plaintiffs failed to prove defendants caused nuisance that was compensable at law and plaintiff was not entitled to damages of tort of private nuisance. Construction activities did not amount to unreasonable interference by defendants of plaintiffs' tranquility and enjoyment of land. Albiston v. Liu (Aug. 12, 2013, Ont. S.C.J., J. Prattas D.J., File No. Toronto SC-11-143-00) 231 A.C.W.S. (3d) 543. LT

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