Law Times

lAw Times • April 7, 2014 Page 15 www.lawtimesnews.com scheme to deceive wife and court Parties were married for 19 years and had two children. Wife claimed husband failed to dis- close two large sums of money, $353,600 and $80,000. Husband asserted both sums belonged to wealthy friends who lived out- side of Canada. Wife claimed undisclosed moneys ought to be considered in equalization of net family property and/or as income for husband. Both sums originated from husband's ac- count and were proper moneys to be dealt with in equalization of net family property. Husband's evidence that money initially belonged to his wealthy friends was not accepted or that moneys were post-separation moneys. Husband prepared correspon- dence and presented it to court as if it had been prepared by individual. Husband presented nefarious scheme to deceive wife and court with respect to two sums. Husband's explana- tions were preposterous and unbelievable. Moneys en route to and from various places were eventually destined for husband and were parties' moneys. Hus- band did not disclose two sums of money. Radlo v. Radlo (Nov. 29, 2013, Ont. S.C.J., T. Maddalena J., File No. Brantford D12582/08) 236 A.C.W.S. (3d) 164. Real Property CONDOMINIUMS Respondent's failure to pay common expenses did not result in damages to applicant Respondent owned two units in condominium. ere was no record of respondent ever hav- ing paid common expenses al- located to units since inception of condominium. Applicant did not register any lien in respect of defaulted common expense payments owed by respondent until September 2012. Applicant sought declaration that respon- dent breached its obligation to pay common expenses. Appli- cant sought order declaring that common expense arrears were damages and order that damages be added as common expenses to respondent's units. Bank had mortgage against respondent's two units in condominium. Re- spondent's mortgage to bank was in default. Units were subject to power of sale proceedings and price obtained for two units would not be sufficient to pay mortgage debt to bank. Respon- dent was ordered to pay com- mon expense arrears commenc- ing January 2009 with interest. No declaration was made that common expense arrears con- stituted damages to applicant. Any right to lien for amount ac- cruing due prior to July 2012 had expired. Applicant sought to re- vive lien. While applicant might have grievance against declarant for failure to comply with obliga- tions to give full disclosure of af- fairs of corporation, as between applicant and bank equities lay with bank. Applicant did not comply with statute in asserting any lien rights it would have and non-compliance was prejudicial to rights of bank. Respondent's failure to pay common expenses did not result in damages to ap- plicant. It would not be fair and equitable to declare product of litigation as basis for new lien right and in effect revive lien rights that applicant allowed to expire. Toronto Standard Condominium Corp. No. 1908 v. Stefco Plumb- ing & Mechanical Contracting Inc. (Dec. 13, 2013, Ont. S.C.J., Low J., File No. Toronto CV-12- 454835) 236 A.C.W.S. (3d) 249. Sale of Goods OBLIGATIONS OF SELLER Defendant breached agreement by insisting on payment before unloading equipment Plaintiff agreed to buy refrigera- tion equipment from defendant and paid deposit. Balance of purchase price was due "on in- stallation/delivery day". Terms that defendant posted on wall indicated payment in full was required in event of delay and no equipment would be unloaded from truck before final pay- ment was made. Plaintiff was not ready for delivery at anticipated time. Plaintiff offered to pay for available equipment in full once it was unloaded and inspected but defendant expected payment before unloading. Plaintiff ob- tained equipment elsewhere and defendant suffered loss. Plaintiff brought action against defendant for damages for breach of con- tract. Defendant brought coun- terclaim for damages for breach of contract. Action allowed in part; counterclaim dismissed. Plaintiff was awarded $22,000 representing return of deposit. Parties had failed to specify se- quence of delivery and payment. Terms posted on defendant's wall did not apply since they had not been brought to plaintiff 's at- tention. At no time had plaintiff agreed to pay defendant before equipment was unloaded. Since written agreement was ambigu- ous regarding time of payment "on installation/delivery day", plaintiff 's initial intention of making final payment aer de- livery and installation prevailed. Defendant breached agreement by insisting on payment before unloading equipment. Burton Meats Retail Inc. v. Igloo Refrigeration Ltd. (Dec. 17, 2013, Ont. S.C.J., Stinson J., File No. CV-11-441460) 236 A.C.W.S. (3d) 253. ONTARIO CRIMINAL DECISIONS Appeal SENTENCE APPEAL Where accused re-offends while on release principle of denunciation must be given more significance Accused sought leave to appeal his sentences of 18 months' im- prisonment for first count, and 30 months' imprisonment on second count imposed aer he pleaded guilty to two counts of possession of cocaine for pur- poses of trafficking. Accused was in possession of $1,130 cash, small amount of marijuana, Percocet pills, digital scales, cell phones, and some 95.5 grams of cocaine. Accused was released on undertaking and while he was awaiting trial, was found in possession of 288.5 grams of co- caine, 79 ecstasy pills and $540 in cash. Sentencing judge recog- nized and took into account that accused's youth, lack of previous record, gambling addiction, re- habilitation efforts, remorse, and guilty pleas were mitigating fac- tors and alluded to danger that lengthy term of imprisonment could impair rehabilitation and reintegration of accused as re- sponsible member of commu- nity. However, sentencing judge considered it aggravating factor that accused committed second offence while released on un- dertaking and awaiting disposi- tion of first offence. Leave to ap- peal granted; appeal dismissed. Where accused re-offends while on release, sentencing principles of general deterrence and de- nunciation must be given more significance to discourage and denounce such conduct. Court saw no basis for accused's sub- mission that sentences on two offences should have been con- current. Court not persuaded that sentencing judge made any error or that sentence was unfit. R. v. Woods (Dec. 12, 2013, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and M.L. Benotto J.A., File No. CA C56640) Deci- sion at 105 W.C.B. (2d) 777 was affirmed. 111 W.C.B. (2d) 279. Breaking and Entering PROOF OF OFFENCE Similar fact evidence admitted due to high degree of similarity found in three break-ins Trial of accused for six offences in connection with three break- ins into three restaurants during July 2012. For each restaurant accused was charged with break and enter and commit the and with possession of instrument suitable for breaking into place. Video surveillance from each restaurant showed that person who wore black balaclava over face and black jacket entered premises. In two cases person took cash from safe but in third case person was unable to break into safe. Crown claimed that accused was perpetrator and it brought similar fact evidence ap- plication based on third incident for which there was witness who saw perpetrator leave restaurant. Police found balaclava aer third break-in and DNA taken from it matched accused's sample that was contained in national DNA bank. Accused convicted of all offences. His evidence was not credible. Court was satisfied that accused was person who was seen by witness. Similar fact evidence was admitted to show that accused broke into first two restaurants due to high degree of similarity found in three break- ins. Probative value of this evi- dence outweighed its potential prejudice. Ample evidence ex- isted to show that accused was perpetrator in all three incidents. For third break-in accused was not convicted of break, enter and commit the but rather of break and enter with intent since he could not obtain cash from safe. R. v. Marini (Jan. 16, 2014, Ont. S.C.J., E. Gareau J., File No. 7348/12) 111 W.C.B. (2d) 301. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Nothing to suggest contraband in plain view of accused when driving family truck Accused was stopped in family truck for unpaid fines. Both of- ficers smelled "burnt" marijuana and "freshly sprayed cologne" inside truck. Accused produced partially smoked joint from his shirt pocket. Accused arrested, taken to police car and there- aer officers searched truck. In search incident to arrest, officer found over $700 in various de- nominations in accused's pock- ets. Inside truck were found three cell phones, elastics, grinder and documents. Satchel behind pas- senger seat contained 297.65 grams of bagged marijuana; 32.69 grams of bagged crack co- caine; and $5,000 in five stacks of $1,000 in 20 dollar bills, each bound with black elastic band. Accused charged with possession of cocaine for purpose of traffick- ing. Accused claimed contraband must belong to family member. Accused found not guilty. Crown had not proven offence beyond reasonable doubt. ere was nothing to suggest that contra- band seized from satchel was in plain view for accused to observe when driving family truck at time of arrest. Explanation of accused reasonably true. His account had credibility and some other evidence supported it, such that court could not reject it. R. v. Brown (Jan. 8, 2014, Ont. S.C.J., Kelly J., File No. 12/90000789/0000) 111 W.C.B. (2d) 326. Extraordinary Remedies CERTIORARI Fact two guns were identical make and model did not allow for inference they had common source Application for certiorari to quash committal for trial. Police forcibly entered apartment with battering ram and discharged flash grenade. ey found ac- cused under blanket on couch in living room. Two other adults and two children were found in bedrooms. On searching apart- ment police found 9 mm semi- automatic handgun in suitcase in second bedroom. Suitcase contained identification belong- ing to accused. Police found sec- ond firearm, of same make and model, in closet in hallway of apartment. Preliminary inquiry judge found jury could properly infer that two firearms shared common source. He found that because it was conceded accused had knowledge and control over firearm found in suitcase, evi- dence would support finding of either constructive possession or joint possession by accused of other firearm. Accused commit- ted for trial on charges relating to both firearms. Accused sought to quash charges relating to second firearm. Application granted. None of main inferences pre- liminary judge found jury could draw could in fact be reasonably drawn from evidence. Accused was guest in apartment. ere was no basis for drawing infer- ence that he would be aware of what was in closet, nor including him, as guest, in "communal use" of closet. Nothing in closet had any connection to accused. Also, fact that two guns were identical in terms of make and model did not allow for any inference that they had common source. Crown had to lead sufficient evidence to establish knowledge and control by accused over gun. ere was either complete absence of evi- dence or insufficient evidence on both of these elements. Commit- tal for trial on charges relating to second firearm quashed. R. v. Grizzle (Jun. 18, 2013, Ont. S.C.J., Nordheimer J., File No. M 57/13) 111 W.C.B. (2d) 334. Murder CONSTRUCTIVE MURDER Not necessary for trial judge to distinguish unlawful confinement from robbery Jury convicting accused of first degree murder in stabbing of de- ceased following attempted rob- bery. Accused tried with two oth- er accused and all were alleged to have confronted and chased deceased down alleyway in rob- bery attempt. Witness testifying co-accused restrained deceased from behind in hugging motion and accused stabbed deceased. Accused making statements to friend shortly aer stabbing that he did not intend to kill victim but was "heated up" during at- tack as result of having commit- ted robbery previous day. Crown theorizing accused and other men had accosted deceased in alley and further chased and re- strained him before killing him. Accused not calling any evidence and inviting jury to convict him of manslaughter through counsel addresses. Accused's appeal from conviction dismissed. Trial judge did not err by leaving unlawful confinement with jury as basis for finding first degree murder. Evidence at trial capable of sup- porting finding of unlawful con- finement based on attempted robbery or subsequent chase of deceased and restraining hug. Not necessary for trial judge to distinguish unlawful confine- ment from robbery in instruc- tions to jury where confinement arose from robbery-murder or attempted robbery-murder. R. v. White (Jan. 24, 2014, Ont. C.A., John Laskin J.A., Janet Simmons J.A., and E.A. Cronk J.A., File No. CA C51993) 111 W.C.B. (2d) 352. LT CASELAW

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