Law Times

lAw Times • April 28, 2014 Page 15 www.lawtimesnews.com and their counsel attended full day mediation session conduct- ed by mediator they mutually selected. At conclusion of ses- sion parties signed comprehen- sive document titled minutes of settlement which purported to resolve all issues between them. Agreement included net fam- ily property worksheet that par- ties had considered. Both legal counsel executed certificates confirming that parties under- stood agreement, that there was no undue influence, and that it was fair. Two weeks later hus- band sent e-mail to mediator advising that he was unhappy with settlement. As only man in mediation process he suggested that his wife got better of him as part of female conspiracy and blamed his own counsel for fail- ing to give him advice and undu- ly influenced him. Husband brought motion to set aside min- utes on grounds of unconscio- nability, undue influence, and duress. Motion dismissed. There was no overwhelming imbalance in power relationship between parties to minutes of settlement in wife's favour, and no circum- stances of oppression or pressure by her. Nor had wife exploited husband's alleged vulnerabili- ties during negotiation process such that agreement deviated substantially from legislation as Net Family Property Worksheet had been attached to minutes of settlement. Regarding exploita- tion, husband had entered into agreement willingly, knowing his financial position at time. With respect to his counsel's undue influence, difficulty husband alleged with his own lawyer was not ground for setting aside agreement. Nor was there merit in husband's contention that sum of all his allegations should lead court to set aside agreement because of overall unfairness. Nasrallah v. Nasrallah (Jan. 7, 2014, Ont. S.C.J., Timothy Minnema J., File No. FC-12- 1304) 236 A.C.W.S. (3d) 677. Insurance FIRE INSURANCE Loss did not attract coverage as plaintiffs opted to purchase replacement instead of rebuilding Defendant insurer was home insurance provider for plaintiffs. Plaintiffs' home was destroyed by fire on March 11, 2009. At time of loss, plaintiffs' policy was in good standing. Insurance pre- mium paid by plaintiffs includ- ed Guaranteed Replacement Cost On Buildings ("GRC") endorsement. GRC endorse- ment provided for payment of costs of repairs or replacement. Following fire, plaintiffs decided not to rebuild or repair their fire damaged home on same site. Instead, they purchased home in another location and moved there. Defendant insurer took position that plaintiffs were not entitled to payment under GRC endorsement of policy, but only basic fire loss coverage. Plaintiffs commenced action claiming benefit of GRC coverage. Parties sought summary judgment. Action dismissed. GRC coverage was extension of basis coverage. Apart from amending monetary limit, ordinary rules remained in place, including requirement of reconstruction at same location. Plaintiffs' loss did not attract GRC Coverage because they opted to purchase replacement property instead of rebuilding. Motion for summary judgment was decided in favour of defen- dant. Willoughby v. Pilot Insurance Co. (Jan. 7, 2014, Ont. S.C.J., Stin- son J., File No. CV-10-00398782) 236 A.C.W.S. (3d) 729. Real Property EASEMENTS Wall was permanent structure but did not substantially interfere with right conveyed In 1916, 14-foot wide easement was created by grant for pur- pose of establishing right of way, being laneway for "ingress, egress and regress" to and from rear of number of residential prop- erties in what was now mid- town Toronto. Right of way ran alongside of respondents' prop- erty. Sometime prior to 1973, respondents' predecessor in title encroached on east side of the right of way by constructing low wall and establishing garden behind it, immediately to west of what was now respondents' property. In 1998, respondents removed 1973 wall and built new wall within right of way. 1998 wall was built in same location as 1973 wall and in addition, 1998 wall extended farther to south, lengthening encroachment. In July 2010, applicants purchased their property, thereby becoming two of dominant tenement hold- ers. Applicants commenced pro- ceeding claiming that their right of way over respondents' land had been substantially dimin- ished by respondents' encroach- ment on it. They sought order for removal of encroachment, allied declaratory relief and other con- sequential orders. Application dismissed. 1998 wall paralleled laneway as it presently existed and left reasonable and adequate room for passage of both people and ordinary vehicles. While wall was permanent structure within right of way, it was not substantial structure in that it did not substantially interfere with right conveyed. Consequently, 1998 wall was not real, substan- tial interference with rights given by 1916 grant. Lester v. Bond (Dec. 23, 2013, Ont. S.C.J., John Macdonald J., File No. CV-12-00461048) 236 A.C.W.S. (3d) 771. ONTARIO CRIMINAL DECISIONS Charter of Rights SEARCH AND SEIZURE Search not functional equivalent of strip search Appeal from convictions. Police received anonymous call with description of man walking with gun near housing complex. Complex well known to police for drug activity and undercov- er officers regularly attended. When they responded to call, officers saw man fitting descrip- tion. Accused behaved evasively when asked if he was armed. Officer told accused to put his hands up and to turn around; accused did neither. Police struggled with accused, during which one officer pulled his shirt up and saw gun. Handgun was fully-loaded .45 calibre semi- automatic handgun. Accused arrested. Small quantity of mari- juana recovered during search incident to arrest. Accused con- victed of offences arising out of possession of gun and marijua- na. Appeal dismissed. Police may detain person for investigative purposes if they have reasonable grounds to suspect that person is connected to particular crimi- nal activity, and that such deten- tion is reasonably necessary. Combination of anonymous tip and what occurred when accused encountered police was capable of supporting reasonable belief that accused might be con- nected to gun crime as reported. What occurred was no more, and arguably less, intrusive than pat- down search. Search not func- tional equivalent of strip search. Conduct of police offended nei- ther s. 8 nor s. 9 Charter. Gun and marijuana were properly admitted as evidence at trial. R. v. Williams (Dec. 20, 2013, Ont. C.A., E.A. Cronk J.A., Da- vid Watt J.A., and K. van Rens- burg J.A., File No. CA C56001) 111 W.C.B. (2d) 574. Evidence SIMILAR FACTS Proposed similar fact evidence not sufficiently connected to charges before court Application to adduce similar fact evidence. Complainant, sex worker, made date with accused. Accused attended at complain- ant's motel room. Crown alleged that what occurred in room was sexual assault. Accused identi- fied by means of DNA evidence. Accused charged with one count of sexual assault and one count of forcible confinement. He elected trial by jury. After inci- dent with complainant but prior to his arrest on charges in this case, accused was charged with robbery and sexual assault with respect to another sex worker. He pleaded guilty to lesser and included offences of assault and theft. Crown applied to enter transcript of guilty plea proceed- ings into evidence before jury as similar fact evidence. Crown's position was that accused had specific propensity to arrange dates with sex workers, refuse to pay, confine them, and then assault them. Application dis- missed. Prejudicial effect of proposed similar fact evidence outweighed probative value of evidence. Both incidents involved assaults on sex work- ers by accused. Both incidents involved alleged refusal to pay for sex by accused. There were also important distinctions: accused pleaded guilty to assault on second worker; no finding of sexual assault was critical dif- ference from this case. Accused stole second worker's cell phone; there was no allegation of theft in this case. There was no allegation or finding that accused unlaw- fully confined second worker, although there were elements of unlawful confinement associat- ed with facts that accused plead- ed to. Proposed similar fact evi- dence not sufficiently connected to charges before court to admit it. There was obvious danger that jury would engage in prohibit- ed chain of reasoning: accused sexually assaulted complainant because he was type of person who assaulted sex trade workers and refused to pay them. R. v. Gayad (Jan. 13, 2014, Ont. S.C.J., R.F. Goldstein J., File No. CR1350000193) 111 W.C.B. (2d) 596. Sentence FINE Employer should not be "rewarded" for statutory compliance Crown appealed decision which allowed sentence appeal, in part, of $50,000 fine for two counts under Occupational Health and Safety Act (Ont.) ("OHSA"). Two breaches of OHSA led to accident in which worker badly injured her foot. Government inspector investigated accident and ordered accused employer to comply with provision, which it did. There was no evidence that corrective action taken by accused went beyond what compliance orders required. Accused was fined $25,000 for each offence. Appeal court judge ordered that fines be paid con- currently, effectively reducing accused's obligation by half, to "reward" company for its com- pliance with order. Appeal court judge held that corrective action was taken by accused prior to trial, even though it could have been construed as consciousness of guilt or wrong-doing. Crown argued that appeal court judge erred in treating accused's com- pliance, which was required by OHSA, to be mitigating factor. Appeal allowed, appeal court order set aside, fine of $50,000 reinstated. Court should not have had discretion to treat accused's post-offence compliance, though statutorily required, as mitigat- ing factor on sentence, as doing so would have undermined important goal of accident pre- vention and most important sentencing principle of deter- rence. Rewarding employer for taking corrective action only in response to inspector's order reduced employer's incentive to take action before accident occurred. Appeal court judge erred in equating sentencing for commission of crime with sen- tencing for commission of regu- latory offence. When employer acted to correct problem that was statutorily required, it ought not to have been "rewarded" for its compliance. If employer took corrective action that went beyond what was required by inspector's order, court could take that additional action into account in sentencing. Court did not have jurisdiction to impose concurrent fines for contra- vention of OHSA. In Criminal Code, court had no jurisdiction to impose concurrent fines, and there was no rational basis not to apply those principles to pro- ceedings under OHSA. Original fine of $25,000 for each offence was fit and was consistent with principles and case law for sen- tencing employers for breach of OHSA. Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co. (Jan. 23, 2014, Ont. C.A., John Laskin J.A., M. Tulloch J.A., and G.R. Strathy J.A., File No. CA C52732) 111 W.C.B. (2d) 629. MURDER Brutal murder of defenceless child demanded period of parole ineligibility beyond minimum Accused sentenced to life imprisonment without eligibil- ity for parole for 15 years for second degree murder, and five years concurrent imprisonment for assault causing bodily harm. Accused was primary caregiver of his common law partner's two-year-old child, who was assaulted on date of his death and weeks earlier had suffered numerous other bodily harm injuries. Child suffered blunt abdominal trauma and multiple other injuries, including bruises, fractures, and abdominal inju- ries, of varying age. Child had suffered significant and repeat- ed physical abuse prior to death. Accused was currently 30 years old and had criminal record for mischief, criminal harass- ment, and breach offences. Accused's name had previously been registered in Child Abuse Register with Ontario Ministry of Community and Social Services. At time of his arrest, accused was bound by three previous probation orders. With respect to period of parole ineli- gibility, two jurors made no rec- ommendation, four jurors rec- ommended no parole eligibility for 15 years, and six jurors rec- ommended no parole eligibility for 25 years. Although abuse of alcohol and drugs was not fac- tor in present matter, substance abuse had been problematic for accused over years. Given accused's high moral culpabil- ity, offence required significant sanction. Rehabilitation was secondary to paramount issues of deterrence and protection of community. Senseless and brutal murder of defenceless child in one's care was egregious breach of trust which demanded period of parole ineligibility beyond mini- mum 10 years. Lifetime weapons prohibition, DNA order. R. v. Monckton (Feb. 22, 2013, Ont. S.C.J., Sosna J., File No. Oshawa 12630/11) 111 W.C.B. (2d) 632. LT CASELAW

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