Law Times

Law Times • may 26, 2014 Page 15 www.lawtimesnews.com kiosks at airport pursuant to agreement with respondent GTAA. Respondent city and respondent MPAC assessed ap- pellant as tenant of GTAA for municipal taxes under Assess- ment Act (Ont.) ("AA"). Appellant applied for declaration that it was not tenant within meaning of AA and was not liable for municipal realty taxes. Appellant also sought declaration that if it was liable then premises were to be assessed at more favourable rate as eligible property under Municipal Act, 2001 (Ont.) ("MA"). Application judge concluded that appellant was licensee not tenant and re- jected appellant's submission that premises it occupied qualified as eligible property. Respondents appealed and appellant cross-ap- pealed. Divisional Court conclud- ed that application judge erred in law in finding that appellant was not tenant. Divisional Court concluded that application judge properly rejected appellant's claim for favourable treatment as eligible property. Appellant appealed. Ap- peal dismissed. Divisional Court did not err by applying standard of correctness to issue of whether agreement between appellant and GTAA was lease. Application judge failed to consider agree- ment as whole. Application judge failed to consider or give sufficient weight to legal effect of haben- dum and quiet enjoyment clauses and other features of agreement that were important indicators of lease. Divisional Court did not err in concluding that appellant was tenant and liable for munici- pal realty taxes. Application judge and Divisional Court correctly rejected appellant's submission that premises met definition of eligible property under s. 331 of MA. Appellant failed to identify category enumerated in definition of eligible property that applied to its premises. Exchange Corp. Canada Inc. v. Mississauga (City) (Feb. 12, 2014, Ont. C.A., D. Doherty J.A., Rob- ert J. Sharpe J.A., and J. MacFar- land J.A., File No. CA C57033) Decision at 225 A.C.W.S. (3d) 236 was affirmed. 237 A.C.W.S. (3d) 516. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Judge's reasons disclosed signifi- cant legal misdirection related to eyewitness identification Appeal by accused from his conviction for impaired driving. Assistant manager of fast food establishment took order from customer who he never met be- fore and who he thought was intoxicated. Aer customer le assistant manager got two other customers to obtain licence plate number of his vehicle and assis- tant manager called police. Po- lice attended at accused's home and they arrested him aer they conducted search of licence plate and discovered that accused was registered owner of vehicle. Two officers who attended at accused's home testified that they did not have reasonable and probable grounds to arrest vehicle owner. ey entered accused's property but they did not proceed to front door to communicate with ac- cused. Instead, they conducted illegal perimeter search, which included warrantless search of ve- hicle using flashlights. Police then made non-consensual entry into residence where they observed and spoke to accused. Trial judge found that perimeter search and investigation of accused's prop- erty and illegal entry into his home constituted breach of s. 8 of Canadian Charter of Rights and Freedoms. Subsequent arrest was unlawful and it violated s. 9 of Charter. Judge excluded evi- dence of two officers because it was obtained in manner that its admission would bring admin- istration of justice into disrepute. However, accused was convicted based on assistant manager's evi- dence that accused was impaired and his identification evidence of him. Appeal allowed and ac- cused was acquitted. Resolution of appeal was not based on Char- ter violations. However, in deal- ing with identification evidence issues, judge's reasons disclosed significant legal misdirection and non-direction related to eyewit- ness identification. Evidence raised very real concerns about assistant manager's reliability as eyewitness. Judge concluded that identification of accused as driver of vehicle was proven by relying on assistant manager's in- court identification of him. In- dock identification by assistant manager, who was previously unacquainted with accused prior to relevant event, was valueless. Judge had to rely on evidence based on discovered vehicle at accused's home that had same licence plate number as vehicle at restaurant. Reliance was prob- lematic based on inadequacies of such evidence and it could not be relied upon to prove, beyond reasonable doubt, that accused was customer encountered by as- sistant manager. R. v. McDonald (Feb. 26, 2014, Ont. S.C.J., Hill J., File No. 83/13) 111 W.C.B. (2d) 900. Extraordinary Remedies CERTIORARI Inferences supporting plan- ning and deliberation did not cross line into speculation Accused individuals charged with second degree murder. Ac- cused individuals applied for order of certiorari quashing committal for first degree mur- der. Accused individuals argued that preliminary hearing judge exceeded jurisdiction by find- ing that there was evidence upon which properly instructed jury could have found that there had been planning and deliberation. Accused individuals argued that judge erred in analysis of circum- stantial evidence and by drawing inferences that could not have been rationally drawn on facts and which amounted to specu- lation. Application dismissed. Judge made no jurisdictional error. Judge reviewed extensive evidence called at preliminary hearing and correctly instructed herself on law to be applied in determining whether to order committal and on which charge. Judge correctly held that there was no direct evidence of plan- ning and deliberation and that conviction for first degree mur- der could have only been based on drawing of inferences from circumstantial evidence. Judge was alive to distinction between impermissible speculation and drawing of rational inferences from proven facts. In coming to conclusion that it was possible for jury to draw reasonable infer- ences from evidence that would have satisfied requirement of planning and deliberation, judge carefully reviewed and analyzed evidence and positions taken by defence counsel. Reasoning of judge was impeccable. Inferences supporting planning and delib- eration were not strongest ones available, but they were reason- able and did not cross line into speculation. When evidence was looked at as whole, it would have been possible for properly in- structed jury, acting reasonably, to reach verdict of first degree murder. R. v. Barrientos (Feb. 13, 2014, Ont. S.C.J., Molloy J., File No. M74/13) 111 W.C.B. (2d) 959. Mental Illness GENERAL Finding that accused suf- fered from major mental illness firmly rooted in evidence Accused appealed disposition of Review Board. Accused was found not criminally responsible on account of mental disorder on charges of robbery and mischief under $5,000. Board reaffirmed earlier hybrid detention order that detained accused in medium secure forensic unit in hospital but permitted hospital officials to exercise their discretion to transfer him to minimum secure forensic unit, if it was appropri- ate to do so. Accused argued that board erred in refusing to grant him absolute discharge. Accused argued that board's finding that he was significant threat to pub- lic safety was unreasonable and could not have been supported by evidence. Accused argued that board failed to take into account his evidence that he initially ma- lingered his condition on advice of his counsel, and that he did not at time of hearing, and did not now, suffer from mental dis- order. Appeal dismissed. Board considered but rejected accused's claim that his initial symptoms were malingered and that he was not in fact suffering from mental disorder. Finding that accused suffered, and continued to suf- fer, from major mental illness was firmly rooted in evidence of treating psychiatrists and did not reflect error. Board properly con- cluded on evidence well capable of sustaining its finding that ac- cused represented significant threat to public. ere was no basis upon which accused could have been granted absolute dis- charge. Board's disposition was least onerous and least restrictive disposition available in circum- stances. Pasha, Re (Dec. 5, 2013, Ont. C.A., E.A. Cronk J.A., David Watt J.A., and K. van Rensburg J.A., File No. CA C56984) 111 W.C.B. (2d) 941. Search and Seizure VALIDITY OF WARRANT Failure to specify date on which warrant to be executed did not render search unlawful Accused applied to exclude evi- dence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Accused argued that, on its very face, warrant was in- valid because it failed to set out date on which warrant was to be executed. Accused argued that because warrant was not ex- ecuted on date of issuance it was invalid. Crown argued that fact that warrant was issued at 8:25 p.m. on February 9, 2011 and au- thorized police to conduct search between hours of 6:00 a.m. and 1:00 p.m. made it implicit that search would be conducted dur- ing that window on next day. Ap- plication dismissed. Technical irregularities should not serve to undermine or upset presump- tively valid warrants unless tech- nical irregularity carried with it some evidence of bad faith or negligence, or had served to de- ceive or confuse involved person. Justice of peace issued warrant in evening prior to actual search and, by implication, signified that warrant was to be executed next day. It was clear that date of February 10, 2011 was proposed in ITO, and that search was ex- ecuted within that window on target date. ere was absolutely no evidence of bad faith, high handed, or neglectful conduct on part of police. In circumstances, failure to specify date on which warrant was to be executed did not render authorized search unlawful, arbitrary, or unreason- able. ere was no infringement of accused's Charter rights. Court would not have been prepared to order exclusion of evidence as remedy under s. 24(2) of Charter had there been Charter infringe- ment. R. v. Pammett (Feb. 26, 2014, Ont. S.C.J., McCarthy J., File No. 13212/12) 111 W.C.B. (2d) 966. SUPREME COURT OF CANADA Fiduciaries REMEDIES President could not take ground- less steps to obstruct sale in order to further personal interests ree corporations acquired apartment building. Title was vested in company which acted as "agent" for corporate investors. Syndication agreement provided that if majority decided to sell, minority had right of first refusal. Resolutions for sale were passed by majority. Minority investor, objected but initially declined to purchase. President of minority investor continued to resist sale and filed certificate of pending lit- igation based on own application seeking appointment of arbitra- tor. During period of president's resistance, two transactions failed to close due to interventions of president and minority investor. Majority investors sued president and minority investor for dif- ference between what majority would have received from pro- spective purchasers and price mi- nority ultimately paid. Trial judge allowed claim, finding that tort of unlawful interference with eco- nomic relations made out. New Brunswick Court of Appeal dis- missed appeal by president and minority investor. Further appeal by president and minority inves- tor dismissed. Narrow scope for liability consistent with history and rationale of unlawful means tort. Scope should be understood in context of broad outlines of tort law's approach to regulat- ing economic and competitive activity. Rationale is "liability stretching"; tort does not seek to create new actionable wrongs, but simply expands range of persons who may sue for harm intentionally caused by existing actionable wrongs to third party. Trend of authority also towards narrow definition of "unlawful means". Narrow approach pro- vides certainty and predictability, not expanding scope of conduct for which defendant may be held liable but merely adding another plaintiff who may recover if in- tentionally harmed as result of that conduct. Core of unlawful means tort captures intentional infliction of economic injury on plaintiff by defendant's use of un- lawful means against third party. Conduct must be actionable civil wrong or conduct that would be actionable if it had caused loss to person at whom it was directed. Liability not limited to situations in which defendant's conduct not otherwise actionable by plaintiff. General principles of tort liability accept concurrent liability and overlapping causes of action. Ex- ceptions to scope of liability for unlawful means tort would be an- tithetical to principled approach and would undercut efforts to give certain and narrow ambit to tort. No actionable wrong by prospective purchasers against president and minority investor; president and minority investor not liable on basis of unlawful means tort. However, record was clear that president breached fi- duciary duty to majority to act in good faith. As building manager, through minority investor, he could not take groundless legal steps to obstruct sale in order to further his personal interests. Bram Enterprises Ltd. v. A.I. Enterprises Ltd. (Jan. 31, 2014, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Rothstein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 34863) Decision at 215 A.C.W.S. (3d) 252 was affirmed. 237 A.C.W.S. (3d) 551. LT CASELAW

• Cover