Law Times

www.lawtimesnews.com Law Times / January 21, 2008 Page 15 No. 04-CV-269349CM1) Or- der No. 007/323/166 (8 pp.). Conflict Of Laws JURISDICTION Motions judge failed to apply real and substantial connection test Motions judge erred in law in holding appellants' written terms of service, which included jurisdiction provision stipulat- ing that any litigation between appellants and respondent would take place in British Co- lumbia, were not part of parties' contract and by failing to apply real and substantial connection test in determining whether Ontario should assume juris- diction over respondent's claim. Application of real and substan- tial connection test led to con- clusion that respondent's claim was not sufficiently connected to Ontario. Respondent's action against appellant was stayed. Pisu v. Combustion Labs Media Inc. (Oct. 18, 2007, Ont. C.A., Simmons, MacFarland and Rouleau JJ.A., File No. C46713) Appeal from 154 A.C.W.S. (3d) 357 allowed. Order No. 007/323/157 (3 pp.). Employment WRONGFUL DISMISSAL Long-term executive entitled to 24 months' notice Plaintiff was constructively dis- missed after 30 years of employ- ment with Ontario Power Gen- eration as result of combined effect of reduction in his com- pensation and changes to his job responsibilities. Plaintiff did not fail to mitigate his damages by failing to remain at Ontario Power Generation during rea- sonable notice period. At time his employment ended, plaintiff was 53 years old and had been vice president, business devel- opment for last six years. Ap- propriate notice period was 24 months. Plaintiff suffered no pension loss. Plaintiff was en- titled to damages of $698,287. Doran v. Ontario Power Genera- tion Inc. (Nov. 16, 2007, Ont. S.C.J., Forestell J., File No. 04- CV-274368CM1) Order No. 007/326/050 (24 pp.). Family Law CUSTODY Joint custody not appropriate where parents unable to communicate Parents unable to communicate with each other. Mother primary caregiver. Father regular access alternate weekends. Parents used written notes to communicate and record access times. Parents disputed Wednesday evening access overnight. Father moved out of town of child's residence. Mother stated child tired on Thursday with early transporta- tion from father's home. Child indicated on number of occa- sions he did not want to go with father. Mother moved for sole custody. Father moved for joint custody with increased access. Mother's motion granted for sole custody. Parties had not yet resolved personal conflict and did not communicate properly. Distance between residences has impact on parenting plan. Father chose to move. Early morning transportation discon- tinued. Travel time has greater impact on young children. Joint custody achievable goal for fam- ily but not at present. Counsel- ling recommended but not term of order. Davenport v. Davenport (Oct. 9, 2007, Ont. S.C.J., Gordon J., File No. 38400-05) Order No. 007/317/030 (16 pp.). Guarantee And Suretyship DISCHARGE OF SURETY Fraudulent document did not relieve appellants from obligations under original guarantee Trial judge granted judgment against guarantors of line of credit extended by bank to au- tomobile dealership. Forged document provided to bank by another dealership shareholder did not vitiate appellants' earlier guarantees. Bank never sought to enforce forged document or take any action on it and ac- cordingly appellants suffered no prejudice as result of its be- ing in bank's possession. Trial judge made no error in con- cluding that fraudulent docu- ment did not in law relieve ap- pellants from their obligations under their original guarantees. Further, there was no material change in dealership's loan at time of forged documents. 911943 Ontario Ltd. v. 407922 Ontario Ltd. (Nov. 15, 2007, Ont. C.A., MacPherson, Blair and LaForme JJ.A., File No. C45559) Appeal from 148 A.C.W.S. (3d) 771; 10 P.P.S.A.C. (3d) 25 dismissed. Order No. 007/326/046 (3 pp.). Landlord And Tenant TERMINATION OF LEASE New trial ordered in challenge to termination of commercial tenancy Trial judge erred in dismissing tenant's action for declaration that termination of commercial tenancy in multi-unit industrial complex was invalid. Trial judge failed to answer crucial question of whether termination clause had been properly deleted. In addition, in denying relief sought by tenant, trial judge took into account information that was not properly admitted before trial judge. Trial judg- ment was set aside and new trial directed. Attention Business Systems Ltd. v. Nones Holdings Inc. (Nov. 13, 2007, Ont. C.A., Cronk, Gillese and Armstrong JJ.A., File No. C44913) Appeal from 146 A.C.W.S. (3d) 546 allowed. Order No. 007/318/079 (2 pp.). Professions BARRISTERS AND SOLICITORS Solicitor removed where law firm in possession of potentially relevant and prejudicial confidential information Solicitor used to incorporate applicant and respondent's cor- poration. Applicant retained lawyer from same practice for divorce proceeding. Applicant was bookkeeper for corpora- tion. Respondent accused ap- plicant of improper withdrawals and terminated her. Respon- dent expressed concern to firm regarding conflict of interest. Applicant's solicitor refused to withdraw. Respondent termi- nated retainer with firm. Re- spondent moved for removal of applicant's solicitor. Applicant argued client was corporation and matter unrelated to appli- cant's issue. Applicant argued no confidential information collected. Motion granted. Conflict exists where perception of conflict or potential conflict exists on part of reasonable per- son. When applicant's solicitor retained, colleague still acting for corporation. Conflict of interest related to relationship lawyer had with principles in closely held corporation. Lawyer would have had significant com- munication with both parties. Presumption confidential infor- mation in possession of counsel who have acted for a party. Firm in possession of confidential in- formation which might become relevant and used to prejudice of respondent. Issues may arise regarding corporate structure or applicant's services. Lawyer used to incorporate company could potentially be called as witness. Valid perception of conflict of interest. Racey v. Racey (Oct. 17, 2007, Ont. S.C.J., Reilly J., File No. 40344-07) Order No. 007/317/039 (25 pp.). Torts NEGLIGENCE Plaintiffs failed to establish that negligence in carpet installation caused fire Defendant installed carpet us- ing seaming iron to heat seam- ing tape. Plaintiffs claimed iron caused fire as result of negligent operation or malfunction in iron. Plaintiffs sought to recover damages for property damaged in fire. Issue was whether plain- tiffs proved defendant caused fire by use of seaming iron dur- ing installation of carpet. Claim was dismissed. There was no direct evidence of malfunction of iron or of negligent use. In- vestigation was insufficient to rule out other sources of igni- tion and other possible places of origin. Plaintiffs did not show operation of seaming iron was cause of fire. Plaintiffs failed to show lack of care or breach of contract on part of defendants. Hall v. Kawartha Karpet & Tile Co. (Nov. 6, 2007, Ont. S.C.J., D.S. Ferguson J., File No. 05/06SR; 0063/06SR) Order No. 007/317/004 (10 pp.). ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Conviction upheld where accused failed to provide suitable sample after 14 attempts Accused appealed conviction for refusing to provide sample for roadside screening test, con- trary to s. 254(2) of Criminal Code. Accused given 14 oppor- tunities to provide sample but only blew for about two seconds each time. Accused testified that he was anxious during testing. Accused's family doctor testi- fied that accused had history of panic attacks and that if he were experiencing extreme anxiety or panic attack, would be unable to control breathing sufficiently to provide sample. Police officers only noticed signs of nervous- ness. Appeal dismissed. Trial judge entitled to reject accused's evidence. Reasons for judgment showed judge considered evi- dence of police and doctor inde- pendently from that of accused. Doctor's opinion not helpful to defence if evidence did not sup- port fact that accused in state of extreme anxiety or panic. Con- clusions supported by evidence. R. v. Kavcic (Nov. 20, 2007, Ont. S.C.J., Dawson J., File No. SCA(P) 1430/06) Order No. 007/326/034 (6 pp.). Charter Of Rights SEARCH AND SEIZURE No foundation for allegation of racial profiling Applicant brought motion to exclude seized credit cards and counterfeit money from his tri- al. Police had stopped applicant and found stolen credit cards in vehicle. Applicant alleged he was victim of racial profiling. There was no evidence appli- cant was stopped other than to check driver and ascertain if he was suspect in recent robbery. There was no foundation for al- legation of racial profiling. Ap- plicant had lesser expectation of privacy in vehicle that did not belong to him. There was no bad faith on part of police of- ficer. Items were found admis- sible at trial. R. v. Ariri (Oct. 12, 2006, Ont. C.J., Cowan J., File No. 06- 5032 Brampton) Order No. 007/326/054 (13 pp.). Evidence HEARSAY Reliability of statements made in 911 call not established Accused charged with assault. Voir dire held to determine ad- missibility of hearsay evidence. Complainant was accused's common law partner. Com- plainant called 9-1-1 to report assault during argument with accused, after complainant had been drinking and taking anti- depressants. Complainant did not recall phone call. Crown sought to admit recording of call for truth of contents. Evi- dence inadmissible. Evidence of statements made moments after alleged incident relevant, probative and reasonably nec- essary. However, reliability not established. There was absence of oath or warning about giv- ing false statement and not clear complainant appreciated consequences of making false complaint when call made. In- ability to assess complainant's demeanour when statement made and inability to meaning- fully cross-examine complainant on statement militated against admission. Furthermore, state- ment could have been moti- vated by desire to have accused removed from home. R. v. O'Connell (Nov. 13, 2007, Ont. C.J., G.A. Campbell J., File No. 063750) Order No. 007/326/059 (4 pp.). 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