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www.lawtimesnews.com Law TiMes / March 3, 2008 Page 19 tinued to operate. Stay was an equi- table remedy however to benefit from it it was reasonable that con- ditions be imposed with respect to any additional charges and timing of judicial review that reflected public interest. Ciulla v. Toronto (City) (Dec. 11, 2007, Ont. Div. Ct., Kiteley J., File No. 557/07) Handwrit- ten endorsement. Order No. 007/361/017 (7 pp.). Negotiable instruments PROmiSSORy NOTeS Plaintiff granted summary judg- ment after defendant defaulted in repayment of promissory note Plaintiff brought motion for sum- mary judgment after defendant defaulted in repayment of a prom- issory note. Parties had partner- ship and defendant brought coun- terclaim alleging breach of partnership agreement. Motion al- lowed. Law did not recognize de- fence that defendant did not re- ceive value he acknowledged having received by signing promis- sory notes however breaches of partnership agreement alleged by defendant provided proper basis for permitting counterclaim to proceed to trial against plaintiff. Counterclaim against principal of plaintiff company could not be sustained because principal was not alleged to have been a partner of defendant and fact that he exer- cised complete control of plaintiff company was not a sufficient basis for finding him responsible for company's alleged breaches of partnership agreement. Tramway Auto Ltd. v. Kuipers (Dec. 18, 2007, Ont.S.C.J., Pitt J., File No. 07-CV-328175 SR) Order No. 007/361/054 (4 pp.). Professions PHySiCiaNS aND SuRGeONS Action against College of Physicians and Surgeons was prop- erly dismissed Motions judge correctly dis- missed appellant's two actions against College of Physicians and Surgeons and various doctors performing review functions un- der Regulated Health Professions act, 1991 (Ont.). Motion judge's analysis of confidentiality and immunity from suit provision in Regulated Health Professions act, 1991 and his application of doc- trine of res judicata were sound. Deep v. Massel (Jan. 8, 2008, Ont. C.a., MacPherson, arm- strong and Epstein JJ.a., File No. C47573) appeal from 159 a.C.w.S. (3d) 290 dismissed. Order No. 008/009/075 (2 pp.). Real Property CeRTiFiCaTe OF PeNDiNG liTiGaTiON Discharge of certificate did not cre- ate unconscionable or unjust result Motions judge ordered discharge of certificate of pending litigation. Motions judge concluded that it was just and fair that certificate of pending litigation be discharged. There was no basis for suggestion that law relating to forfeiture ap- plied on facts. This was not case where discharge of certificate of pending litigation created result that was unconscionable or unjust. No good reason to doubt correct- ness of motions judge's decision nor was there conflicting decisions. 1357202 Ontario Ltd. v. 1326046 Ontario Ltd. (Dec. 19, 2007, Ont. Div. Ct., Kiteley J., File No. 411/07) Leave to appeal from 160 a.C.w.S. (3d) 79 was refused. Order No. 007/361/003 (9 pp.). Torts iNTeRFeReNCe WiTH CONTRaCTual RelaTiONS Real estate franchisor did not cause termination of relationship between another franchisor and its dissatisfied franchisee HRS and RM were both very large and successful competing real estate franchisors. Highly suc- cessful franchisee left HRS to join RM. HRS brought action against RM for inducement of breach of contract, unlawful interference with contractual relations and in- terference and economic interest and unlawful interference with legitimate business expectancy. Unhappy franchisee had already made decision to leave HRS be- fore he met with RM. If fran- chisee had not gone to RM, he would have gone to another rival, LP. RM did not induce or cause termination of relationship be- tween HRS and franchisee. while this was unsavoury and most un- pleasant situation, there was no illegal or unlawful act by RM. Franchisee asked RM to come up with proposal and RM did. Com- petition for brokers and agents in real estate industry was com- monplace. HRS knew risk of fair competition in very competitive industry and chose not to protect itself. Finally, RM's actions were not proximate cause of business termination. action dismissed. Homelife Realty Services Inc. v. Homelife Performance Realty Inc. (Dec. 12, 2007, Ont.S.C.J., Milanetti J., File No. 03-CV-247000 CM) Order No. 007/351/122 (102 pp.). ONTARIO CRIMINAL CASES animals iNJuRiNG OR eNDaNGeRiNG Appeal from conviction for animal cruelty was dismissed accused appealed conviction for two counts of animal cruelty, con- trary to s. 466 of Criminal Code. Trial judge accepted accused's evi- dence that he had made efforts to arrange care of dogs, but found that steps taken were insufficient. appeal dismissed. Finding of liability based on accused's failure to do more to obtain immediate care for dogs was justified. Trial judge entitled to find absence of due diligence. R. v. Blanchard (Dec. 6, 2007, Ont. S.C.J., McIsaac J.) Order No. 007/344/096 (6 pp.). appeal PROCeDuRe Counsel appointed to represent accused on appeal from Review Board disposition accused applied for order appoint- ing counsel pursuant to s. 684 of Criminal Code to represent him in pending appeal from disposi- tion of Ontario Review Board. application allowed. Communi- cations with court-appointed am- icus curiae did not have benefit of privilege. In interests of justice that accused have benefit of own legal counsel on appeal. Vaughan v. Ontario (Nov. 16, 2007, Ont. C.a., Cronk, Juriansz and watt JJ.a., File No. M35192 (C44999); M35193 (C46302); M35465 (C47088)) Order No. 007/331/028 (3 pp.). Charter Of Rights RiGHT TO COuNSel Right to counsel not violated where accused's statement stemmed from willingness to explain himself accused was charged with fail to stop at scene of accident. accused asserted his right to counsel was violated in that he provided state- ments prior to officer alerting him of his right to counsel. Utterances were not made to police because he felt compelled by statute to re- port his involvement in accident. Motivation for statement was from accused's willingness to explain himself and his error in judgment. application was dismissed. R. v. Manley (Dec. 19, 2007, Ont. C.J., wake J., File No. 07-2556) Order No. 008/009/057 (15 pp.). Parties GeNeRal Pharmacist's acts could properly be considered acts of accused by virtue of doctrine of innocent agency accused doctor allegedly wrote pre- scriptions for narcotics which drug trafficker S would then pick up and sell. G, pharmacist who filled prescriptions, not knowingly in- volved in scheme. accused applied to quash committal on trafficking charges on basis that doctrine of innocent agency inapplicable to G's actions. Both parties requested pretrial ruling as to whether Crown could rely on doctrine of innocent agency. application dismissed. accused's medical licence revoked when he wrote prescriptions in question. accused not entitled to receive notice from Registrar of College of Physicians and Surgeons of Ontario that licence revoked before revocation could take legal effect. Uninterrupted causal nexus between accused and G. Innocent agent can exercise independent judgment. G's acts could properly be considered acts of accused by vir- tue of doctrine of innocent agency. R. v. Devgan (Nov. 16, 2007, Ont. S.C.J., Ducharme J., File No. CR07-FD-000422) Order No. 007/330/048 (18 pp.). Search and Seizure ReTuRN OF iTemS SeizeD Reference in s. 490(a) and (b) to "other proceeding" in Criminal Code included forfeiture hearing at conclusion of trial Defendant was charged with criminal negligence causing death and leaving scene of accident. De- fendant brought application for motor vehicle to be returned to de- fendant. Crown argued court did not have jurisdiction to grant relief sought. Detention orders served to detain defendant's motor vehicle until completion of all proceed- ings and reference to three months in orders was redundant. Deten- tion orders were valid orders. De- fendant led no evidence to show presumption of regularity should not apply. Reference in s. 490(a) and (b) to "other proceeding" in Criminal Code included forfeiture hearing at conclusion of trial. Re- turn of motor vehicle to defendant would prevent Crown from being able to make forfeiture applica- tion at conclusion of trial. There was no statutory basis for return- ing seized property to defendant until completion of preliminary inquiry, trial or other proceeding. Court had no jurisdiction to order return of detained motor vehicle. Section 490(8) created avenue for defendant to be allowed to make application but not necessarily be granted relief sought. R. v. Alchin (Dec. 5, 2007, Ont. C.J., wolder J., File No. 07-941-00) Order No. 007/353/134 (10 pp.) Sentence GeNeRal No jurisdiction to delay prohibi- tion on possession of dogs under s. 446(5) of Criminal Code accused appealed sentence for two counts of animal cruelty, contrary to s. 466 of Criminal Code. appeal allowed in part. Trial judge did not err in rely- ing on accused's criminal record, number of dogs neglected and fact that accused violated position of trust as aggravating factors. Trial judge had no jurisdiction to delay prohibition under s. 446(5) until end of three-year probation period that also included term that accused not possess dogs. Restitution order reduced to re- flect money obtained by Ontario Society for the Prevention of Cruelty to animals. R. v. Blanchard (Dec. 6, 2007, Ont. S.C.J., McIsaac J.) Order No. 007/344/096 (6 pp.). SeXual OFFeNCeS Accused sentenced to five years and two months for ten counts of inde- cent assault against stepdaughters accused was found guilty of ten counts of indecent assault involv- ing his stepdaughters. Crown sought 10 years in custody. De- fence sought conditional sen- tence. accused had served 437 days in pre-trial custody equiva- lent to serving three years and two months. acceptable range was 8 to 12 years. Global sentence of five years two months less pretrial custody was ordered. R. v. G. (D.T.) (Nov. 28, 2007, Ont. S.C.J., Kiteley J., File No. 0079/06) Order No. 007/339/112 (17 pp.). Trial CHaRGe TO JuRy No error in instruction on intoxi- cation in murder trial accused appealed conviction for second degree murder. accused had consumed crack cocaine and alcohol on day of homicide. Trial judge instructed jury exclusively in terms of whether Crown had proven that accused had requisite intent for murder. appeal dis- missed. No error in instruction on intoxication. Though capacity instruction could have been given, jury would have understood criti- cal question was whether Crown had proved intent. Instruction clearly related all evidence, in- cluding intoxication evidence, to foreseeability question arising from mens rea component. R. v. Walent (Dec. 5, 2007, Ont. C.a., Doherty, Mol- daver and Epstein JJ.a., File No. C43834) Order No. 007/351/157 (4 p). 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