Law Times

Law Times • June 2, 2014 Page 15 www.lawtimesnews.com 2014, Ont. S.C.J., Spence J., File No. CV-13-10220-00CL, CV-13- 10221-00CL) 237 A.C.W.S. (3d) 596. Judgments and Orders SETTING ASIDE Defendant's evidence contained no explanation for default 14 years ago On Dec. 20, 1999, court made order granting default judgment against defendant. In Septem- ber 2013, almost 14 years later, defendant brought motion seek- ing to set aside order. Plaintiff and defendant were children of deceased, who died on Oct. 11, 1995. Proceeding had its origins in motion brought by plaintiff for order restraining defendant from dealing in any way with assets of estate and compelling him to restore amounts allegedly misappropriated by him from estate. That order was granted. Statement of claim alleged con- version and sought damages against defendant for fraudulent misrepresentation and theft by conversion, punitive and exem- plary damages, and declaration that any amounts found due by defendant to estate be set off from his share of estate as beneficiary. Defendant moved several times, mostly within United States. Nu- merous attempts were made to locate and serve defendant. Even- tually, plaintiff obtained order for substituted service by mail to number of addresses. There was some evidence that defendant received copy of claim in August 1999. Defendant did not defend action and default judgment was obtained. Defendant now sought to set aside default judgment on basis that he did not receive state- ment of claim. Motion dismissed. Motion judge did not believe de- fendant's assertion that he had not previously seen statement of claim. It was mailed to him at address he had given to court for service. Defendant had also been advised by counsel for plaintiff during telephone conversation in August 1999 that action had been commenced. Apart from denying having been served with state- ment of claim, defendant's evi- dence contained no explanation for circumstances which led to his default. Defendant also failed to present triable defence on merits. Evidence supported conclusion that plaintiff 's claims were well- founded. Cohen Estate v. Cohen (Feb. 7, 2014, Ont. S.C.J., Stinson J., File No. Toronto 99-CV-165261) 237 A.C.W.S. (3d) 762. Planning BUILDING CODE Building was one structure despite being divided between adjacent properties Property owner owned two prop- erties that shared semi-detached three-storey building. Building was at least 140 years old. First f loor consisted of commercial space, while upper f loors con- tained residential apartments. Municipality was informed that rear wall of building had partially collapsed. Chief Building Official issued unsafe building orders. Owner appealed. Appeal dis- missed. Building was one struc- ture with interdependent com- ponents despite being divided be- tween adjacent properties. Entire structure came within definition of unsafe building in s. 15.9(2) of Building Code Act, 1992 (Ont.). Analysis and conclusions of mu- nicipality's expert were based on far more thorough examination of building than those of owner's expert. Owner's expert was not himself prepared to say building was "safe". Unsafe building orders were completely reasonable and even necessary. Nothing indi- cated venal intent, malice, or bad faith dealings. Hull v. Greater Napanee (Town) (Jan. 14, 2014, Ont. S.C.J., Doug- las Rutherford J., File No. CV-13- 114-0000) 237 A.C.W.S. (3d) 787. Real Property CONDOMINIUMS Nothing prevented developer from mortgaging clubhouse Developer created four condo- minium corporations as part of one large project. Project included community clubhouse with vari- ous recreational facilities. Own- ership and future conveyance of clubhouse were fully described in developer's disclosure state- ments. Latest time for conveyance of clubhouse to corporations was 120 days after developer sold its remaining ownership interest in project. Developer mortgaged clubhouse for $1 million. Corpo- rations wanted mortgage voided and clubhouse conveyed to them. Corporations brought applica- tion against developer for relief for breach of trust and oppression. Application dismissed. There was no trust relationship with respect to clubhouse. Contractual and disclosure documents only es- tablished contractual rights and obligations that had not been breached. There was no evidence of conduct changing developer's relationship with corporations regarding clubhouse. There was also no evidence of oppressive conduct on developer's part. De- veloper could not be said to have done anything that purchasers had not reasonably expected from outset. Nothing prevented devel- oper from mortgaging clubhouse. Developer was not charging ex- cessive membership fees for club- house. Simcoe Vacant Land Condomin- ium Corp. No. 272 v. Blue Shores Developments Ltd. (Jan. 9, 2014, Ont. S.C.J., Morgan J., File No. CV-12-462334) 237 A.C.W.S. (3d) 801. Torts NEGLIGENCE Three motorcycle drivers engaged in common purpose to commit unlawful and negligent acts Plaintiff 's motor vehicle was struck head-on by motorcycle. Driver of motorcycle was driving at excessive rate of speed, lost con- trol and crossed centre line. Driv- er of motorcycle was killed and plaintiff was seriously injured. Driver of motorcycle was out for motorcycle ride with defendants who were each operating their own motorcycles. Defendants were convicted under Highway Traffic Act (Ont.). Videotape clearly established underlying facts as read in when defendants' guilty pleas were entered. Im- proper lane changes, cutting into and out of traffic, and "wheelies" of the defendants' vehicles could be seen in recording. Plaintiff brought action for damages for negligence against defendants as- serting they were in joint venture of unlawful activity with driver of motorcycle involved in collision. Each defendant was 25 per cent at fault. Evidence clearly estab- lished that driver of motorcycle involved in collision was negligent in driving at speed he did and his negligence caused collision. Neg- ligence of defendants also caused collision. Conduct of three mo- torcyclists in driving in manner in which they did, viewed objectively and subjectively, created grave risk of death or injury to other users of highway and loss plaintiff suf- fered was within ambit of that risk and was readily foreseeable by all of them. Evidence overwhelm- ingly established that three cy- clists were engaged in common purpose to commit unlawful and negligent acts. Mallory v. Werkmann Estate (Feb. 11, 2014, Ont. S.C.J., Lack J., File No. 48379/07) 237 A.C.W.S. (3d) 675. TAX COURT OF CANADA Customs and Excise APPEAL Not open to court to make exceptions to statutory provisions on grounds of fairness Appellant was approached dur- ing H1N1 pandemic to manu- facture sanitizing gels. Due to urgency of situation, it started manufacturing sanitizing gels while simultaneously working to complete formulation submis- sion for Canada Revenue Agency ("CRA") approval. Appellant ac- knowledged it did not comply with s. 73 of Excise Act (Can.). Minister assessed excise duty pay- able on packaged spirits under act. Appellant requested court to consider reducing amount of duty assessed, given uninten- tional nature of offence. Appeal dismissed. Even though appellant had received approval under Nat- ural Health Products Regulations (Can.), at time it manufactured gels, act does not give any exemp- tion on that basis. Court did not have authority to provide relief based on fairness. There was no provision in act that granted ju- diciary authority to deviate from strict application of its provisions. It was not open to court to make exceptions to statutory provisions on grounds of fairness or equity. Appellant was only assessed duty payable on alcohol and could have faced a harsher situation had Minister imposed penalty. Court was not convinced that appellant was not negligent in failing to comply with act. International Custom Pak Inc. v. R. (Feb. 11, 2014, T.C.C. [Infor- mal Procedure], Lucie Lamarre J., File No. 2013-1768(EA)I) 237 A.C.W.S. (3d) 657. Taxation INCOME TAX Receipts did not provide breakdown of donation between cash and gift in kind Minister disallowed tax credits for charitable donations claimed on basis that neither taxpayer made any donations to charity and charitable donation receipts issued to taxpayers by charity did not contain information required necessary to prove gift. Taxpay- ers appealed. Appeals dismissed. Taxpayers did not prove they made donations claimed. No proof was offered to corroborate their testimony that they made gifts in kind and their testimony alone was too vague to identify specific goods donated or the val- ue that could be attributed to such goods. Amounts shown in tithes records were not reliable. Receipts did not provide breakdown of do- nation between cash and gift in kind and did not give description of gifts in kind that were allegedly donated. Receipts did not show when gifts in kind were received or what their fair market value was at that time. Ofori-Darko v. R. (Feb. 17, 2014, T.C.C. [Informal Procedure], B. Paris J., File No. 2013-3652(IT) I, 2013-3809(IT)I) 237 A.C.W.S. (3d) 815. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Appropriate to take accused's failure to testify into account in holding verdicts reasonable Jury finding accused guilty of multiple offences arising from home invasion where elderly couple beat with baton. Crown's case resting on DNA evidence on two bandanas recovered from scene. DNA expert agree- ing could not say when accused's DNA was placed on bandanas and agreed person wearing them during robbery may not have deposited DNA on them. Police seizing baton similar to that used in robbery from accused two months later. Victim testifying as to differences in detail from weapon used in attack. Accused's conviction appeal dismissed. Jury's verdicts not unreasonable. DNA evidence could not sup- port conviction without further evidence of similar baton. DNA expert's evidence could not in- clude accused as perpetrator of robbery. Jury could conclude victim's inaccurate description of details arose from circumstances in which he observed baton. Ap- propriate to take accused's failure to testify into account in holding verdicts reasonable. R. v. Wills (Mar. 7, 2014, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M.L. Benotto J.A., File No. CA C54968) 112 W.C.B. (2d) 2. Not readily apparent what accused was confessing to Accused appealed his conviction for sexual exploitation. Accused was charged with one count of sexual assault and one of sexual exploitation in relation to his wife's 17 year old niece who lived with them. Complainant testi- fied accused forced her to try on dress, removing her bra and shirt, pushing her onto bed, removing her jeans and attempting to pull off her underwear but was un- successful because she held them in place. Accused testified com- plainant took off bathing suit top she was wearing and asked him to help her remove her jeans and de- nied removing her bra or pushing her onto bed. Accused was high school teacher where complain- ant attended. Complainant told allegations to schoolmate, who in turn told his mother, who in turn contacted police. Accused attended police detachment, gave videotaped statement and was ar- rested. Accused claimed that in his partial statements to police, he was not confessing crime but con- fessing guilt to making complain- ant feel badly. Appeal allowed; new trial ordered. If accused was confessing guilt to criminal con- duct, it was essential to determine to which incident or incidents he was confessing. While accused said he understood charges, in same answer he said he did not and elements for sexual assault and sexual exploitation were not explained to him. Details of what complainant alleged in all three incidents were not provided to accused although some aspects of incidents were discussed. Throughout interview there were significant discussions about what was appropriate and inap- propriate as opposed to criminal conduct. Trial judge erred in her assessment and use of accused's police statement. Court not per- suaded trial judge was using terms "confession" and "admissions of guilt" solely in relation to inappro- priate but non-criminal conduct. It was readily apparent that state- ment was treated as confession to criminal conduct in assessing his evidence and comparing it to trial evidence. Trial judge found statement to be inculpatory, accu- rate, reliable and true disclosure of guilt, and powerful confession of touching complainant without her consent. Those comments did not imply findings were in- ferences. Assuming court was wrong and they were inferences, trial judge provided no reasons for why that damaging conclu- sion was drawn. It was not read- ily apparent what accused was confessing to since officer never confronted him with all of allega- tions. Curative provision did not apply as trial judge found accused had confessed and used his ad- mission of guilt to reject accused's trial evidence. R. v. C. (D.) (Feb. 21, 2014, Ont. S.C.J., Durno J., File No. Milton 110/12) Decision at 100 W.C.B. (2d) 215 was reversed. 112 W.C.B. (2d) 99. LT CASELAW

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