Law Times

www.lawtimesnews.com Law TiMes / March 31, 2008 Page 15 SC-00092416-0000) Order No. 008/010/071 (17 pp.). SUPPORT Income imputed to child support payor Parties cohabited for two years and were married for seven years. Parties had two children. Younger child required con- stant supervision and support. Younger child resided in residen- tial facility. Mother maintained home for younger child for visits. Older child attended university and received child support from biological father. Order directed mother to have custody of chil- dren and father access. Father was to pay child support of $823 per month based on income of $60,000 per year. Father sought to set aside order to permit father to file answer/claim. Income of $50,000 was imputed to father. Father's arrears to date were struck. Father was to pay child support of $450 per month. Haley v. Haley (Jan. 14, 2008, Ont.S.C.J., Reilly J., File No. 5093/06) Order No. 008/017/053 (8 pp.). Limitations TORT Medical malpractice action dismissed as barred by limita- tion period in Regulated Health Professions Act, 1991 (Ont.) Plaintiff brought medical mal- practice action. Defendants brought motion for summary judgment in relation to statu- tory limitation period under Regulated Health Professions Act, 1991 (Ont.). Motion was allowed. There was no genuine issue as to when limitation period was engaged with respect to right wrist. Defendant's position with respect to left wrist was accepted. Plaintiff knew facts or reasonably ought to have known facts upon which plaintiff could found neg- ligence action. Plaintiff did not succeed in raising discoverable facts that would justify extending limitation period. Castronovo v. Sunnybrook & Women's College Health Sciences Centre (Jan. 18, 2008, Ont.S.C.J., Allen J., File No. 03-CV-255463CM2) Order No. 008/022/069 (14 pp.). Professions BARRISTERS AND SOLICITORS Special circumstances justified having all accounts subject to assessment Client retained law firm to com- mence legal proceedings. Law firm rendered accounts. Client commenced assessment proceed- ings. Accounts spanned over seven years. Accounts were paid from moneys in trust. Client did not complain about accounts at time accounts were rendered. Evidence supporting motion showed special circumstances existed. It could not be expect- ed client should have objected and taken out orders of assess- ment after each account was rendered. Earlier accounts were interim accounts and were to be excluded because of time-limits in Solicitor's Act (Ont.). There was overlap and interrelation- ship of accounts that constituted special circumstances justifying having all accounts rendered to be subject of assessment. Farlinger v. Maurice J. Neirinck & Associates (Jan. 11, 2008, Ont.S.C.J., Himel J., File No. 07-CV-337269) Order No. 008/017/016 (7 pp.). Police DISCIPLINE Applicants lacked standing in police disciplinary process Notice of hearing that set out 24 charges of police misconduct against respondent was quashed on grounds notice of hearing was not served within six-month period. Applicants made accusa- tions of sexual harassment against respondent. Applicants were elev- en police officers and one civilian employed by Police Services Board. Respondent argued applicants lacked standing. Applications for judicial review were dismissed. Given s. 57(7) of Police Services Act (Ont.), applicants had no direct legal interest in disciplinary process. Board lacked standing. Jane Doe One v. Dhinsa (Dec. 13, 2007, Ont. Div. Ct., Jennings, Sanderson and Swinton JJ., File No. 119/07; 120/07) Order No. 008/022/075 (6 pp.). Real Property CERTIFICATE OF PENDING LITIGATION Certificate refused where parties did not intend for plaintiff to acquire interest in property Claim arose out of work done by plaintiff for securing financing for defendants. Plaintiff claimed it was induced by misrepresen- tation to enter into amending agreement. Pursuant to amend- ing agreement plaintiff would receive no fees and no equity position in property. Plaintiff brought motion for certificate of pending litigation. Defendants sought order requiring plain- tiff to post security for costs. Defendant R. brought motion to have plaintiff 's motion converted into judgment and for judg- ment dismissing action against it. Plaintiff did not bring action that was frivolous or vexatious. There was arguable claim plain- tiff was induced to enter amend- ing agreement by misrepresen- tations. Motion for certificate of pending litigation was dis- missed. It was not intention of parties for plaintiff to acquire interest in property. Motion for security for costs was dismissed. Claim against defendant R. was dismissed. There was no valid claim against defendant R.. There was no contractual rela- tionship between plaintiff and defendant R. G.R.ACE Financial Corp. Inc. v. Terrelonge (Jan. 16, 2008, Ont.S.C.J., Somers J., File No. 06-CV-313153PD3) Order No. 008/022/074 (11 pp.). FEDERAL COURT OF APPEAL Sentence DRUG OFFENCES Sentence of 40 days' imprisonment plus $1,000 fine imposed by military judge for drug offences was upheld Accused appealed sentence of 40 days' imprisonment plus $1,000 fine imposed by military judge for trafficking in cocaine and pos- session of marijuana. Accused 26-year-old member of armed forces sold .8 gram of impure cocaine to undercover officer. On arrest, accused in possession of 1.7 grams marijuana. Accused pleaded guilty, had drug depen- dency for which he had sought treatment and was first-time offender. Counsel jointly recom- mended 40 days' detention plus $1,000 fine. Appeal dismissed. Judge did seek further submis- sions on why detention should be imposed rather that imprison- ment. However, judge erred by failing to advise counsel that he was concerned about joint sub- mission and provide opportunity to justify proposal. Nevertheless, error was harmless as sentence would have been same in any event. Counsel could not have provided additional information to support unusually lenient sen- tence. Judge concluded proposed sentence did not accord with case law or sufficiently denounce cocaine trafficking. Detention not consistent with military objective of rehabilitation with goal of re- integration in military, as accused was to be released from forces. Sentence not demonstrably unfit. R. v. Taylor (Jan. 15, 2008, F.C.A., Blanchard, Goodfellow and Roscoe JJ.A., File No. CMAC-497) Order No. 008/035/085 (19 pp.). ONTARIO CRIMINAL CASES Charter Of Rights SEARCH AND SEIZURE Strip search did not violate s. 8 of Charter Accused was charged with impaired driving and fail to stop for police. Accused alleged her strip search was illegal and unreasonable. Minimum force was used to effect search and searched in private area with door closed. There was no physi- cal contact except touching of accused's hair. No violation of s. 8 of Charter was found nor viola- tion of accused's right to counsel. Accused was found guilty. R. v. Seki (Jan. 14, 2008, Ont. C.J., Wong J.) Order No. 008/037/053 (22 pp.). TRIAL WITHIN REASONABLE TIME 21.6-month delay was unacceptable Appellant was charged with impaired driving and failed at trial to have charges stayed due to vio- lation of his 11(b) Charter rights. Crown's request for adjournment caused delay between first and second trial dates as adjourn- ment was not necessary nor jus- tified. Total institutional delay amounted to twelve months which exceeded administrative Guidelines. Overall time to trial was 21.6 months to prosecute matter which was unacceptable. Charges were stayed. R. v. Peressotti (Jan. 30, 2008, Ont. S.C.J., Taliano J., File No. 1469/07) Order No. 008/037/052 (17 pp.). Weapons RESTRICTED WEAPONS Decision to revoke applicant's firearms licence was reasonable Applicant had his firearms licence revoked and sought review of that decision. Applicant was 57 years of age and had been small game hunt- er. Applicant had criminal record for causing disturbance, drinking and driving, and possession of pel- let gun. As well, there was record for assault and recent domestic vio- lence incident. Standard of review for decision of chief firearms offi- cer was that of reasonableness con- sistent with pragmatic approach to review of decisions. Decision to revoke licence was reasonable. Possession of firearms licence was privilege not right. Spadidakis v. Ontario (Jan. 10, 2008, Ont. C.J., Nakatsuru J.) Order No. 008/017/035 (21 pp.). Murder ATTEMPTED MURDER Accused had requisite intent to kill Accused was charged with a num- ber of offences including point- ing a firearm, assault with weap- on, attempted murder, pointing firearm and unlawful possession of firearm. Accused attempted escape police and pointed and fired trigger in close contact with police officer. Gun did not fire because chamber did not have bullet, but gun was otherwise operational. Accused did not tes- tify. There was insufficient degree of impairment that would negate specific intent to kill. Requisite intent to kill was found and accused was found guilty. R. v. Innocent (Dec. 13, 2007, Ont. S.C.J., Hackland J.) Order No. 008/037/047 (20 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Committal of accused for trial for murder was properly upheld Accused appealed order uphold- ing order committing him for trial for first degree murder. Appeal dismissed. No error by certiorari judge. It could reason- ably be inferred from circum- stantial evidence on planning and deliberation that accused went to party with intent to stab someone with knife meaning to cause death or bodily harm likely to result in death. R. v. M. (D.) (Feb. 4, 2008, Ont. C.A., Feldman, Lang and MacFarland JJ.A., File No. C47361) Order No. 008/037/062 (2 pp.). Sentence ASSAULT Joint submission for sentence of five years, two months was accepted Accused pleaded guilty to aggra- vated assault, break and enter, possession of stolen vehicle and breach probation. Accused had been in custody since January 2007. Complainant was 70-year- old man who suffered serious injuries to his face. Accused had lengthy record and was 20 years of age. Both Crown and defence jointly submitted global sentence of five years and two months jail was appropriate. Court agreed with joint submission. R. v. M. (R.W.) (Dec. 13, 2007, Ont. 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