Law Times

www.lawtimesnews.com Law Times / January 14, 2008 Page 15 providers' duty to child and wishes of parents. Statement of claim struck in its entirety without right of amendment. P. (K.A.) v. Children's Aid Society of Toronto (Oct. 24, 2007, ont.S.C.J., Somers J., File No. 07-CV-331608PD2) order no. 007/303/083 (8 pp.). insurance automoBiLe inSuRanCe Plaintiff satisfied threshold for loss of future income damages Plaintiff 's vehicle was rear-ended by defendant's vehicle. Jury awarded $25,000 for general damages and $95,000 for loss of past income. Jury did not award any damages for loss of future income. Defendant made threshold motion. It was obvious plaintiff was not fit to be foreman and give instructions to other workers. Defendant's submission plaintiff 's pain and psychological deterioration were not caused by injuries suffered as result of accident was not accepted. Plaintiff was not capable of returning to old job or similar type of work. Plaintiff was capable of minimum wage employment that did not require heavy lifting. Plaintiff satisfied threshold because plaintiff sustained permanent serious impairment of important physical and psychological function. Podleszanski v. Medley (Nov. 6, 2007, ont.S.C.J., Bryant J., File No. 69609/03 Newmarket) order no. 007/311/082 (8 pp.). Landlord and tenant ReneWaL oF LeaSe Assignment of lease prohibited in absence of signature of agent with written authorization Applicants bought premises where respondent tenant. Lease was in effect until October 1, 2006. Respondents requested to continue with premises until October 2007. Applicants refused. Respondents sent cheques to cover rent until October 2007. Applicants returned cheques. Respondents claimed renewal of lease signed by previous owner. Respondents later claimed renewal signed by owner's son. Application for writ of possession. Application allowed. Some credibility issues regarding existence of son. Statute of Frauds prohibits assignment of lease without signature of landlord or agent with written authorization. Son was not authorized in writing to act as agent on behalf of parents. Equitable remedy not available since issues about forthrightness and consistency of respondent's evidence. Lam v. Fashion Hair Culture Inc. (Oct. 26, 2007, ont.S.C.J., Allen J., File No. 07-CV-329020PD2) order no. 007/303/080 (5 pp.). Personal Property Security SeCuRitY inteReStS Plaintiff entitled to judgment for amounts owing under equipment lease agreement Plaintiff brought motion for summary judgment for amounts owing by defendants under equipment lease agreement between parties. Plaintiff argued there was default under agreement, repossession and sale of vehicle under lease were pursuant to Personal Property Security Act (Ont.), and defendants were liable for deficiency and other costs owing under lease. Defendants argued they should not be liable for amounts owing under lease since vehicle had been returned to plaintiff without defendants' knowledge or authorization and no phone calls had been made to advise them that vehicle had been returned until after it was sold. Motion granted. Defendants' best position still did not address plaintiff 's entitlement to repossess vehicle, sell it and claim deficiency on default under Personal Property Security Act. Defendants ordered to pay $57,707 plus prejudgment interest to date of judgment at 5% per annum. Cit Financial Ltd. v. 1500413 Ontario Inc. (Oct. 2, 2007, ont.S.C.J., Conway J., File No. 06-CV-321282 SR) order no. 007/282/055 (6 pp.). Professions BaRRiSteRS and SoLiCitoRS Special circumstances justified order directing assessment outside limitation period Applicant sought order directing assessment of respondents' account pursuant to Solicitors Act (Ont.). Applicant retained respondents to represent her based on contingency arrangement in action for damages arising from wrongful dismissal and for long-term disability benefits. Applicant submitted that retainer she signed provided that lawyer's fees would be charged at a maximum of 25% of any damages awarded to her. Respondents submitted that retainer agreement provided for deduction from award of fees at 25% of applicant's recovery plus party costs and disbursements. Applicant applied for order one day after expiry of statutory 12-month period. Application granted. Applicant proved existence of special circumstances justifying order despite expiry of limitation period. Applicant did not receive copy of retainer, signed copy of retainer with specific terms was not available, applicant's understanding of retainer differed from that of respondents, and applicant applied for assessment only one day outside of 12-month time- limit. Santos v. Sokoloff (Oct. 3, 2007, ont.S.C.J., Allen J., File No. 07-CV-326847) order no. 007/282/030 (5 pp.). Real Property CondominiumS Plaintiff failed to seek enforcement of by-laws through statute before applying to court Plaintiff alleged defendant in contravention of condominium by-laws for heating food items on its premises. Condominium declaration did not allow premises to be used for warming foods. Exception in declaration for snack foods. Defendants argued fish balls and hot dogs were snack foods. Plaintiff moved for summary judgment against defendants. Motion dismissed. Plaintiff made several amendments of statement of claim to which defendants did not have opportunity to respond. Condominium Act, 1998 (Ont.), requires mandatory mediation of declaration disputes before litigation. Plaintiff did not seek enforcement through Condominium Act, 1998 before applying to court. Not abundantly clear that heated food cannot qualify as snack foods. York Region Condominium Corp. No. 890 v. 1185010 Ontario Inc. (Oct. 25, 2007, ont.S.C.J., Cullity J., File No. 07-CV-328065 PD1) order no. 007/303/087 (7 pp.). ONTARIO CRIMINAL CASES appeal GRoundS Accused failed to establish ineffective assistance of trial counsel Appeal by the accused from his conviction for sexual assault. He appealed on the basis of negligent and ineffective conduct by counsel. Accused was initially represented by a lawyer named D. Shortly before the trial D referred the accused to BE, who shared space with him. BE took written instructions and represented the accused in court. Accused claimed that D told him that if he pleaded guilty he would have no criminal record. He pleaded guilty and received a suspended sentence which meant that he had a criminal record. Appeal dismissed. Crown's case against the accused was overwhelming. It was highly improbable that D told him that the case could be disposed of without him having a criminal record. Accused was in a state of denial since the assault occurred. He was the author of his own misfortune in having to deal with this case on the eve of trial because he did not respond to D's requests for a meeting. D and BE were credible witnesses. Their explanations of their conduct made sense. Accused's pleas was voluntary. He understood the process and the implication of entering a guilty plea. Accused failed to establish that he received ineffective assistance of counsel. Court did not believe his version of the events. D and BE acted competently and achieved a result that was favourable for the accused. There was no reasonable possibility that any other counsel would have achieved a more favourable verdict. If the case had gone to trial the accused would have been convicted and would have received a more severe sentence. R. v. Sharma (Sep. 14, 2007, ont. S.C.J., Sproat J., File No. SCA(P)385/05) order no. 007/262/025 (21 pp.). Charter of Rights aRBitRaRY detention oR imPRiSonment Accused not stopped for improper purpose of racial profiling Application by the accused to exclude evidence because he was subject to an arbitrary detention, contrary to s. 9 of the Canadian Charter of Rights and Freedoms. Police at 3:20 a.m. saw the accused make an abrupt u-turn in front of their two vehicles. They pulled him over. Accused was the driver. One officer shined his flashlight into the car, observed a bandanna wrapped around an object on the rear seat of the vehicle and saw the end of handgun protruding. Officer opened the driver's door of the car, pulled the accused out and handcuffed him. Police then arrested him and escorted him to their vehicle. They then searched the front of the car and located marijuana and cocaine in zip-lock bags and a scale and a mobile telephone. Gun was loaded. Application dismissed. Accused was detained when he was directed by the police to pull over. Reason for stopping and detaining the accused was to determine if he was impaired by some substance. Stop was not arbitrary but was for a legitimate investigative purpose. Taking into account the hour of the morning and the unusual traffic maneuver there were reasonable grounds to suspect that the accused posed a highway safety concern and was being stopped for that reason. Accused was not stopped for an improper purpose, namely racial profiling. He was of mixed Asian and African background. However, his car was some distance from the officers when he turned and the surroundings were dark. Once he was stopped he was not detained and was not arrested because of his race. R. v. Roberts (Sep. 27, 2007, ont. S.C.J., Miller J., File No. CRIMJ(P) 1714/07) order no. 007/274/165 (21 pp.). disclosure dutY on CRoWn Late disclosure could not have affected trial fairness Accused appealed conviction for possession for purpose of trafficking. Search of apartment revealed 9.3 grams of crack cocaine and 253 grams of marijuana. Receipts and bills in accused's name found in knapsack in apartment. Apartment's tenant was in jail and trial judge inferred he had given accused control over premises and contents. Trial judge extended knowledge and control of premises to drugs. At opening of trial, Crown disclosed fact that tenant was in jail when warrant executed. Accused sought to introduce fresh evidence based on late disclosure, alleging impact on trial fairness from inability to explore certain avenues of investigation. Appeal dismissed. Fresh evidence application rejected. Late disclosure could not have affected trial fairness. Defence counsel had all information necessary to challenge warrant but chose not to do so for tactical reasons. R. v. Young (Oct. 18, 2007, ont. C.a., Feldman, Armstrong and Lang JJ.A., File No. C45019) order no. 007/295/039 (5 pp.). 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