Law Times

Law Times • February 3, 2014 Page 15 www.lawtimesnews.com dren's Lawyer that supported fa- ther's position. ere were allega- tions that children were coached. Trial was less than two months away. Application dismissed. ere was triable issue as to whether mother's ongoing medi- cal issues affected her ability to parent children. Court would re- quire medical records and would need to hear viva voce evidence. ere were no pressing reasons to make orders sought. ere was no reliable evidence of worsen- ing of mother's alleged medical condition. ere was not strong probability that father's position would prevail at trial. Best inter- ests of children were not served by deciding issues of custody and mobility on interim application. Determination was to be made aer full hearing of all evidence. Kelly v. Yantha (Sep. 25, 2013, Ont. S.C.J., J. McNamara J., File No. 12-582) 233 A.C.W.S. (3d) 917. PROPERTY Father's desire to continue to reside in matrimonial home not realistic Parties jointly owned matrimo- nial home. Father continued to live in matrimonial home. Moth- er and parties' two children lived with maternal grandmother. Fa- ther's income was $24,000 per year. Father was not paying child support. Father wished to buy matrimonial home when father got better job. Father was paying mortgage, but mortgage might have been in arrears. Mother said realty taxes for 2013 were not paid. Matrimonial home was to be sold before trial. Father's desire to continue to reside in matrimonial home until some indefinite time in future was not realistic. Equity in property could continue to erode. ere was real danger that further de- lay could result in negative value for property when ongoing ex- penses were taken into account. Father was to vacate matrimo- nial home as soon as possible and no later than specified date. Home was to be listed for sale. Kocian v. Kocian (Sep. 3, 2013, Ont. S.C.J., Martin James J., File No. FC-13-056) 233 A.C.W.S. (3d) 866. Judgments and Orders SETTING ASIDE Lawyer had obligation to ensure that agent attended to protect defendant's rights Defendant owned home and had equity line of credit with TD registered against home. De- fendant had second mortgage. Defendant sought additional fi- nancing. TD referred defendant to outside broker. Defendant signed alternative funding au- thorization from under which TD would retain five per cent referral fee of principal amount of mortgage. Defendant was re- ferred to C. and obtained new mortgage commitment with plaintiff. Defendant defaulted on first and second mortgage. Plaintiff issued statement of claim for judgment and posses- sion. Defendant was elderly and was under psychiatric care. De- fendant could not recall whether she was served or dropped docu- ments off to lawyer's office. De- fendant's lawyer indicated he was not available on motion date and would not be appearing or send- ing agent. Defendant brought motion to set aside judgment and writ of possession obtained by plaintiff. Motion dismissed. Motion could have been brought more promptly. Defendant's evi- dence on excuse or explanation for default was inconsistent and unreliable. Lawyer had obliga- tion to ensure that agent attend- ed to protect defendant's rights and explanation that lawyer did not have anyone in office who could attend was insufficient. ere was no plausible excuse or explanation for defendant's de- fault. Defence did not have air of reality. Defendant's actions were delay tactics. Stormy Daze Investments Ltd. v. Bolus (Nov. 4, 2013, Ont. S.C.J., C.A. Gilmore J., File No. Oshawa 81991/13) 233 A.C.W.S. (3d) 990. Landlord and Tenant CONSTRUCTION OF LEASE Tenant's stated wish to exercise renewal clear, explicit, unambiguous, and unequivocal Tenant entered into commercial lease agreement and operated as paralegal in premises. Tenant claimed he exercised option to renew lease. Tenant verbally in- formed landlord of intention to renew lease and then his former lawyer informed landlord by let- ter. Letter from landlord's lawyer requested tenant to vacate prem- ises, indicating that landlord in- tended to use premises for own use. Tenant's lawyer sent letter confirming intention to renew lease with post-dated cheques with six per cent increase in rent. Tenant was entitled to exercise option to renew lease. Declara- tion was made that tenant validly exercised option to renew. Ten- ant's stated wish to exercise re- newal option was clear, explicit, unambiguous and unequivocal, and expression of legal enforce- ment of right to option did not make it less so. Term "parties will negotiate to renew" did not denote condition precedent to tenant's right to exercise option. In absence of negotiation for ad- ditional rent, aer tenant made his wish clear, he was entitled to renew on basis of six per cent in- crease for further five-year term. Landlord's expressed grounds of default of lease were without merit. Singh v. 202289 Ontario Inc. (Oct. 25, 2013, Ont. S.C.J., Seppi J., File No. CV-13-3873-00) 233 A.C.W.S. (3d) 1001. Securities Regulation REMEDIES Appellants trading in securities without being registered Appellants were not registered with securities commission in any capacity to trade in securi- ties. Appellants held meeting in Ontario and as result, hundreds of people were persuaded to ac- quire shares in Nevada company. Securities commission found that appellants contravened Se- curities Act (Ont.), by trading in securities without being regis- tered and by trading in securities without filing necessary disclo- sure documents. Commission found that appellants misrepre- sented that securities they were trading in were listed or about to be listed on stock exchange. Appellants appealed commis- sion's decision. Appeal dis- missed. Commission had ample evidence to reasonably conclude that substance of transactions in question was sale transaction rather than loan transaction. Commission only used hearsay evidence when it was supported and corroborated by other evi- dence and it did not err in doing so. Commission had ample evi- dence before it to conclude that appellants had control of shares and arranged for them to be dis- tributed to public in violation of Act. Appellants' ability to make full answer and defence was not affected by failure to make full disclosure. Commission did not fail to conduct neutral investi- gation. Commission staff did not intentionally disclose com- pelled testimony to third parties. Commission did not misdirect itself and decision was not so clearly wrong as to amount to injustice. Appellants had not es- tablished there was reasonable apprehension of bias on part of commissioner. Appellants were not taken by surprise by theory that they acted in concert to sell shares of company to public in violation of Act. Mega-C Power Corp., Re (Oct. 31, 2013, Ont. S.C.J., Aston J., Aitken J., and H. Sachs J., File No. 95/11, 96/11, 97/11, 98/11) 233 A.C.W.S. (3d) 1027. ONTARIO CRIMINAL DECISIONS Breathalyzer APPROVED SCREENING DEVICE Stay not justified at law because effect of breach was minimal Appeal by Crown from decision of trial judge who stayed pro- ceedings against accused. Ac- cused was charged with driving with blood alcohol level above legal limit. Police officers stopped accused's vehicle aer it did not stay within its lane and accused was found to exhibit signs of impairment. He failed roadside screening test and he was trans- ported to police station where his breath readings were both 220. At 1:33 a.m. accused was returned by breath technician to one of officers who arrested him. Accused was given oppor- tunity to phone his father and he was lodged in cell at 1:40 a.m.. He was not released until 9:15 a.m.. Judge found that charge was proven. She also found that accused had been held overly long in custody and granted stay because there was overholding in breach of s. 9 of Canadian Charter of Rights and Freedoms. Appeal allowed. Judge's reasons for finding overholding and breach of s. 9 were sufficient for meaningful appellate review and judge did not err when she found that accused's s. 9 rights were in- fringed by delay in releasing him. However, judge did not provide reasons for imposing stay and effective appellate review could not occur. Appeal succeeded on this ground. Judge did not err when she found that accused's s. 9 rights were infringed by delay in releasing him. She erred, how- ever, when she found that appro- priate remedy for s. 9 breach was stay. Stay was not justified at law because effect of s. 9 breach on accused was minimal. Judge did not err when she accepted evi- dence of roadside screening de- vice and s. 8 was not breached for officer had reasonable and prob- able grounds to request breath sample. Information available to officer at time that accused provided roadside sample was sufficient to ground both his subjective and objective belief that device worked properly. ere was no evidence that it was unreliable and even though he later learned that device was not calibrated within 14 days did not change this conclusion. Of- ficer had reasonable and prob- able grounds to request breath sample. Accused was convicted but due to s. 9 breach fine was reduced from $1,000 to $500. He was also subject to one-year driving prohibition. R. v. Coyle (Nov. 7, 2013, Ont. S.C.J., J.A.S. Wilcox J., File No. CR-13-01 AP) 110 W.C.B. (2d) 192. Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Mandatory sentence could rise to level of gross disproportionality Accused pleading guilty to s. 95(1) of Criminal Code and other firearms offences. Police entering residence occupied by accused and seizing semi-auto- matic handgun and ammunition from accused's residence. Sec- tion 95(2)(a)(ii) providing for five year mandatory minimum sentence where accused had been convicted and sentenced of second or subsequent offence enumerated in s. 84(5)(a). Ac- cused having been convicted and sentenced of s. 85(4)(a) of- fences on two prior occasions. Accused having been previously convicted of firearms offences in relation to serious robbery of employment agency using imi- tating firearm. Accused having been convicted of breaching s. 117.01(1) prohibition order by possessing ammunition. Crown having proceeded by indict- ment for current and prior of- fences thus triggering five year mandatory minimum. Sentenc- ing judge dismissing accused's ss. 7, 9 and 12 Charter claims that five years was grossly dis- proportionate with reference to gravity of accused's offences. Sentencing judge arriving at global sentence of seven years. Accused appealing sentence and reasserting Charter claims that mandatory sentence at issue violated ss. 7 and 12 of Charter. Appeal dismissed and s. 95(2) (a)(ii) declared of no force and effect for violating s. 12 of Char- ter in manner not saved by s. 1. Mandatory sentence of five years did not amount to cruel and un- usual punishment in accused's circumstances given gravity of offences. Mandatory sentence could rise to level of gross dis- proportionality applying reason- able hypothetical circumstance. Hypothetical circumstance would involve offender where s. 95(1) offence best character- ized as regulatory breach with no unlawful or criminal purpose. Previously held that mandatory three year sentence for first s. 95(1) offence breached s. 12 in hypothetical case of "regulatory" offender with low moral blame- worthiness. "Regulatory" breach would entail offender who law- fully possessed firearm but stored or placed it in unauthor- ized manner but with no unlaw- ful or criminal purpose. us five year mandatory sentence also breached s. 12 in modified hypothetical where offender had dated prior offence. R. v. Charles (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C54111) Decision at 102 W.C.B. (2d) 441 was affirmed. 110 W.C.B. (2d) 264. RIGHT TO FAIR TRIAL Court not prepared to require fami- ly members to contribute to defence Accused was facing 11 serious fraud charges and was out on $150,000 surety under strict conditions when he brought forth Rowbotham application claiming he could not afford to retain counsel and that counsel was essential for his right to fair trial. One of his brothers stepped down as surety with another stepping in to post bond. Legal Aid would not provide support without his family members contributing as accused pre- sented evidence that he had no assets or income in this country. Application granted. Accused provided evidence he did not have funding and was facing complicated trial. Court was not prepared to require his fam- ily members to contribute to his defence. ere was no obligation on family to provide support and it was clear from bail hearing that his brother was reluctant to even post bond. Assistance by family members should be voluntary and court would not impose significant financial obligation on them when accused himself had no income nor assets in this country and was unable to fund his own defence. R. v. Eid (Nov. 15, 2013, Ont. S.C.J., J.A. Blishen J., File No. 13080) 110 W.C.B. (2d) 273. LT CASELAW

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