Law Times

Law TiMes • March 3, 2014 Page 15 www.lawtimesnews.com dividual defendant was not a key or high level employee. While individual defendant had signed employment agreement in 2009, in which he agreed not to con- tact candidates of plaintiff for one year aer leaving plaintiff 's employ, he did not know names of candidates and clients listed in plaintiff 's databases. Injunction would essentially put individual defendant out of work for one year and deprive him of ability to put his general knowledge and skills in IT placement industry to work. It would be possible at trial to determine which of plain- tiff 's clients have been placed by defendants and amount of fees which were generated. Dam- ages were quantifiable. ere was therefore no evidence of irrepa- rable harm to plaintiff if injunc- tion was not granted. Planit Search Inc. v. Mann (Nov. 4, 2013, Ont. S.C.J., Ricchetti J., File No. CV-13-2074-01) 234 A.C.W.S. (3d) 1026. Insurance AUTOMOBILE INSURANCE Injuries affected plaintiff 's entire way of life in profound way Plaintiff was employed as general contractor. Plaintiff was injured in motor vehicle accident at age 34 and sustained comminuted fracture of clavicle that required internal fixation, which was re- moved four years post surgery. Plaintiff was le with large scar to le shoulder area. Fracture healed well. Plaintiff developed chronic pain with symptoms of depression, headaches, mild cognitive deficits, lack of motiva- tion and sleep disruption. ere was no evidence of any health issues before accident. Defen- dant brought motion to dismiss claim on basis injuries did not meet statutory threshold. Motion dismissed. Plaintiff met onus that injuries met threshold set out in s. 267.5 of Insurance Act (Ont.). Injury of chronic pain was per- manent. Plaintiff had problems for eight years. Improvement was doubtful given type of symptoms and length of time they lasted. Any improvement would not be significant. Since accident plaintiff became dysfunctional in employment, home-life and inti- macy with common law spouse. Bodily function impaired was important to plaintiff. Injuries in- volved plaintiff 's total body func- tion and affected his entire way of life in profound way. Impairment of overall functioning was seri- ous. Mikolic v. Tanguay (Oct. 29, 2013, Ont. S.C.J., Arrell J., File No. 49090/07) 234 A.C.W.S. (3d) 1031. Municipal Law ACTIONS AGAINST MUNICIPALITY Bylaw allowed but did not require parties to submit dispute to arbitration In 2004, bylaw was adopted that transferred responsibilities for defendant local municipality's public transit system to plaintiff regional municipality. Imple- menting transfer of public tran- sit under bylaw involved com- plex negotiations. Parties could not agree on responsibility for unfunded liabilities. In March 2011, plaintiff issued statement of claim against defendant seek- ing relief under terms of bylaw for payment of unfunded liabili- ties in amount of $8.9 million. Defendant brought motion for summary judgment dismissing plaintiff 's claim on basis that it was commenced aer two-year limitation period set out in Limi- tations Act, 2002 (Ont.), expired. Motion judge held that limita- tion period did not being to run until April 21, 2009, date when plaintiff received notification that defendant's council passed reso- lution denying responsibility for unfunded liabilities and taking position that limitation period for referring unresolved matter to arbitration expired. Motion judge concluded that action was com- menced within limitation period. Defendant appealed dismissal of motion. Appeal dismissed. Terms of bylaw that gave rise to dispute between parties did not create specific debt or obligation but it imposed obligation on par- ties to negotiate issue underlying plaintiff 's claim for monetary relief. Bylaw allowed parties to submit outstanding dispute to arbitration but did not require them to elect arbitration. It was only when defendant's council passed formal resolution in April 2009 refusing to continue nego- tiations mandated by bylaw and refusing to arbitrate that plaintiff ought reasonably to have known that civil action was appropriate means to remedy loss it allegedly suffered. Claim was discovered as of April 2009, and statement of claim issued in March 2011 was within two-year limitation period. Durham (Regional Municipal- ity) v. Oshawa (City) (Sep. 25, 2013, Ont. C.A., K.M. Wei- ler J.A., Robert J. Sharpe J.A., and Paul Rouleau J.A., File No. CA C56297) Decision at 221 A.C.W.S. (3d) 1002 was affirmed. 234 A.C.W.S. (3d) 1044. Real Property CONDOMINIUMS Disappearance of lo was material change significant enough to affect purchase decision Applicant entered agreement of purchase and sale with respon- dent developer for purchase of two bedroom unit with lo. Ap- plicant purchased unit because lo provided additional office space, necessary since she and partner worked from home. While watching construction, applicant observed lo appeared to have disappeared into closed staircase to roof deck. Applicant asked respondent several times for information about changes and updated floor plan and re- spondent ignored requests. Ap- plicant did not close on basis unit was no longer what she bargained for due to disappearance of lo. Application for declaration dis- appearance of lo space was ma- terial change allowing her to re- scind agreement and have depos- it returned. Application allowed. Respondent knew applicant selected unit because lo would provide office space. Disappear- ance of lo and, with it, working space, was material change signif- icant enough to affect reasonable buyer's decision to purchase unit so, pursuant to s. 74 Condomini- um Act, 1998 (Ont.), respondent was required to disclose amend- ment to disclose statement, aer which applicant would have ten days to rescind agreement. Re- spondent instead chose to ignore applicant's questions about what was happening and requests for new floor plan. at city required changes to space was no answer to failure to make disclosure and respondent's offer to reduce pur- chase price to compensate for reduction in square footage was insufficient. Applicant had ten days from date of order to rescind agreement and have deposit re- turned. Gallow v. HPH (Broadview) Ltd. (Nov. 4, 2013, Ont. S.C.J., Greer J., File No. CV-13-480220) 234 A.C.W.S. (3d) 1068. ONTARIO CRIMINAL DECISIONS Assault ASSAULT CAUSING BODILY HARM Unnecessary to determine whether bodily harm was inflicted intentionally Appeal by accused from his con- victions for assault with weapon, assault causing bodily harm and possession of weapon for pur- pose of committing indictable offence. Accused cut off com- plainant in traffic aer complain- ant did same to him. He then approached complainant's car and they had angry exchange. Accused was five feet and eight inches tall and he weighed 120 pounds while complainant was six feet and four inches in height, and he weighed 240 pounds. Complainant got out his car and accused attacked him several times but complainant repulsed him. Aer fight concluded com- plainant saw that his shirt was ripped and he was bleeding from cut on his le shoulder. He had no idea how he was injured be- cause he did not see him holding weapon. Independent witness did not see how complainant got injured. Police officer who examined complainant and who watched videotape of incident concluded that accused stabbed complainant in shoulder and hospital records indicated that complaint was cut with penknife or with knife. Trial judge con- cluded that accused and com- plainant were not in consensual fight and defences of provoca- tion and self-defence did not apply. Appeal dismissed. Judge's conclusion regarding consensual fight issue was reasonable. Her conclusion that accused's wound was consistent with sharp-edged instrument was speculative. is conclusion, however, was incon- sequential for since judge found that altercation was non-consen- sual it was unnecessary to deter- mine whether bodily harm was inflicted intentionally. Assault with weapon charge was stayed because of Kienapple principle but assault causing bodily harm charge was not stayed. R. v. Akhtar (Nov. 13, 2013, Ont. S.C.J., Trotter J., File No. 31/12) 110 W.C.B. (2d) 492. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officer took reasonable steps to only preserve evidence and clear out occupants Accused sought exclusion of evi- dence of drugs and other items found on grounds of Charter ss. 8 and 9 breaches. Accused was under surveillance being person of interest and drove very suspi- ciously taking roundabout routes and was observed to exchange box with another driver and then drive away fast. Police arrested other driver and found box con- tained cocaine and ordered take- down of accused. Accused was arrested and search of his car re- vealed keys to apartment which was not principal residence of accused. Officers used infor- mation from key fob to contact property manager to ascertain to which units keys belonged. Offi- cers ordered immediate search of apartment without warrant in or- der to freeze or secure premises, clear it of any occupants and not to search for evidence. Officer pulled back shower curtain to see if anyone was hiding behind it and was hit by strong smell of cocaine and saw suspicious wrapping. Of- ficer saw closed briefcase behind bathroom door, but took no steps to open it. Collective police evi- dence was that they were inside unit for less than five minutes and that they entered with key. Subsequent search pursuant to search warrant revealed multiple kilos of cocaine. Evidence admit- ted. Court found no s. 9 breach as officers had reasonable grounds to make arrest aer suspicious driving behaviour of accused and evidence found in other vehicle. ere was no Charter breach in accessing key fob information as that was done pursuant to legiti- mate police investigation. ere was Charter breach for warrant- less entry of apartment but officer clearly took reasonable steps to only preserve evidence and clear out occupants. All those factors suggested that Charter infring- ing conduct was modest at best, and weighed towards inclusion of evidence found in unit. Court also noted evidence was substan- tial and real which also favoured admission and that accused was in custody in time of search of apartment that was not his prin- cipal residence. R. v. Saciragic (Dec. 11, 2013, Ont. S.C.J., Croll J., File No. CR- 12-90000719) 110 W.C.B. (2d) 525. FREEDOM OF THE PRESS Non-consensual intercepted communications not presumptively subject to non-publication order Court was to determine ongoing applications by various media organizations to obtain access to ITO that had earlier been sworn by officer in support of applica- tion for search warrant and that was ordered sealed. ITO in ques- tion was almost 500 pages long and included extensive reference to lengthy investigation under- taken by police. Also included within ITO were references to non-consensual intercepted pri- vate communications that police obtained pursuant to judicial authorizations in relation to ear- lier and somewhat related inves- tigation. Since applications were originally brought, accused had been charged with extortion in- volving his alleged involvement in attempting to obtain video that featured Mayor of City of Toronto. All parties now agreed that applicants should have ac- cess to entire ITO, save for those edits relating to confidential in- formants and police investigative techniques, neither of which were challenged by applicants. Con- cern was that there were inter- cepted private communications referenced in ITO that discussed another situation where accused was engaged in attempting to recover item wherein it could be suggested that accused's con- duct in relation to that item was similar to conduct that formed basis of extortion charge. No non-publication order made; ap- plicants entitled to have access to and publish contents of ITO ed- ited solely for categories of con- fidential informant privilege and agreed upon aspects of investiga- tive techniques. Non-consensual intercepted communications were not presumptively subject to non-publication order: se- crecy is exception and openness is rule. Court found generalized statements of concern offered up by Provincial Crown to be insuf- ficient to warrant imposition of publication ban regarding refer- ences in ITO to non-consensual intercepted private communi- cations. Court found that trial on extortion was not likely to be before it for two or three years resulting in diminishment of any prejudice to accused's fair trial rights. ere had already been fair amount of publicity in this matter that did not reflect well on accused as his counsel fairly ac- knowledged. It was not therefore clear that this additional material would significantly affect any im- pressions that may have already formed in minds of public. If current publicity was sustained, it was open to accused to bring application, some time prior to trial, for publication ban at that time. Accused was not focus of ongoing publicity: that focus was on mayor. Canadian Broadcasting Corp. v. Canada (Nov. 27, 2013, Ont. S.C.J., Nordheimer J., File No. Toronto M 261/13, M 263/13, M 264/13) 110 W.C.B. (2d) 516. LT CASELAW

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