Law Times

Law Times • June 9, 2014 Page 15 www.lawtimesnews.com society since that date. Father had exercised access at society's discretion. Mother was not in- volved in children's lives. Soci- ety claimed father had inf licted physical harm on children. Parents had been involved with child protection services in oth- er jurisdictions due to concerns related to parental capacity, mental health and domestic vio- lence. Order granted. Evidence revealed that oldest child had suffered fractured femur and rib and had numerous bruises that could not have been caused by fall. Youngest child suffered bruising to much of her body, including her face. Court was concerned about repeated and escalating nature of violence. Children's best interests, pro- tection and well-being required that they remain in care and custody of society with access to father at society's discretion pending completion of child protection proceedings. Children's Aid Society of Ot- tawa v. K. (K.) (Jan. 30, 2014, Ont. S.C.J., Ronald M. Lalib- erte J., File No. FC-13-2784) 237 A.C.W.S. (3d) 959. CUSTODY Father had been difficult and rigid in approach to access arrangements includ- ing filming exchanges Father sought to vary custody and access arrangement in May 5, 2009 order from every second weekend to one of joint custody on alternating week basis. Child, aged six and one-half. Mother sought to maintain status quo arrangement for custody and access, where child resided pri- marily with her and father has access every second weekend, and where mother was able to make major decisions if they were unable to agree. At trial, mother agreed to extend fa- ther's weekend access to Monday morning with father returning child to her school. Application dismissed. There had been ma- terial change in circumstances since May 5, 2009 order. Mother had moved further away from father, remarried and had two other children. Father had un- successful relationship and had two other children who resided with their mother. There was stronger bond between child and mother and child wished to live with mother. Child had stable home environment with mother. Mother was better able to meet child's necessaries of life due to fact that she was not working outside home and her mother-in-law lived next door and assisted her with childcare. Father had put his own interests first, finding fault with mother's proposals and had been difficult and rigid in his approach to ac- cess arrangements, including filming access exchanges. It was in child's best interests to con- tinue with present arrangement. Father's access was to remain every alternate weekend from Friday after school to Monday drop-off at school. Guadalaxara v. Viau (Jan. 23, 2014, Ont. S.C.J., Robert J. Smith J., File No. Ottawa 07-FL- 2129-2) 237 A.C.W.S. (3d) 979. Hotels and Restaurants LIEN Appellant effectively authorized auction of horses Respondent cared for herd of horses and owner did not pay, so she auctioned horses to real- ize her statutory lien, but gave less than the required notice under s. 3(2) Innkeepers Act (Ont.). Appellant held Personal Property Security Act (Ont.), interest in horses. Appeal from application judge's decision that applied doctrine of estoppel by convention to allow respondent to realize under her lien despite failure to strictly comply with s. 3(2). Appeal dismissed. Owner had notice of sale, engaged in unsuccessful negotiations to redeem and did not object to sale or claim share or proceeds. Appellant knew about sale and was content to have it proceed with view to claim excess funds. Would not further legislative purpose to apply notice provi- sion to nullify lien in circum- stances where appellant effec- tively authorized auction. Halton School of Equitation Co. v. 2155486 Ontario Inc. (Jan. 31, 2014, Ont. C.A., R.G. Juriansz J.A., P. Lauwers J.A., and G. Par- du J.A., File No. CA C57330) 237 A.C.W.S. (3d) 998. Injunctions INTERLOCUTORY RELIEF Real risk defendant would dissipate interest in property prior to trial Defendant was employed by plaintiff for nine years, when she was terminated for theft. Plain- tiff claimed that defendant es- sentially admitted in letter that she stole funds, but defendant denied that signature on letter was hers. Defendant stated she was going to transfer one prop- erty to her spouse. Defendant stated she did not hold title to second property, as she had signed off on transfer of prop- erty. Defendant received R.R.S.P. transfer from spouse that she cashed to pay debt. Defendant had job earning $20,000 per year. Plaintiff brought motion for Mareva injunction to pre- vent defendant from disposing of properties. Motion granted. Plaintiff had strong prima facie case against defendant. Defen- dant never challenged dismissal as being wrongful. There was real risk that defendant would dissipate interest in property pri- or to trial. Defendant had no sig- nificant assets other than prop- erties. Defendant's employment did not depend on transfer of assets. There appeared to be no prejudice to defendant if injunc- tion was granted. Plaintiff would likely suffer irreparable harm if injunction was not granted and balance of convenience favoured plaintiff. MacLellan Enterprises Inc. v. Longlad (Feb. 18, 2014, Ont. S.C.J., M.E. Vallee J., File No. 12- 0677) 237 A.C.W.S. (3d) 1010. Negotiable Instruments CONVERSION Bank committed tort of conversion and liable for amounts taken from solicitors' accounts Solicitors operated separate practices, but used same bank. Solicitors were independently approached by fraudster who wanted their assistance in fraud- ulent transactions. Fraudster al- legedly represented buyer who was to purchase assets from sell- ers. Purchase was to be financed by finance company that was actually fictitious. Solicitors re- ceived invalid certified cheques from finance company and provided either bank draft or certified cheque from bank to alleged sellers. Bank used solici- tors' funds to cover bank draft and certified cheque. Solicitors brought action against bank for damages for conversion. Action allowed. One solicitor was awarded $190,883.82, and second solicitor was awarded $211,500.74. Bank committed tort of conversion and was liable for amounts taken from solici- tors' accounts. Fact that solicitors might have been negligent in en- gaging in fraudulent transaction was no defence. Conversion was strict liability tort. Payee was not fictitious since both solicitors made their bank draft or certi- fied cheque payable to existing entity. Raza Kayani LLP v. Toron- to-Dominion Bank (Dec. 27, 2013, Ont. S.C.J., Greer J., File No. CV-08-00366686, CV-08- 00357752-0000) 237 A.C.W.S. (3d) 1041. Partnership DISSOLUTION Nothing in agreement prohibited parties from commencing own practices Parties were partners in ac- counting practice for over 20 years, and applied for determi- nation of enforceability of re- strictive covenants in partner- ship agreement. Agreement was poorly drafted and prepared without legal advice. Applica- tions judge found partnership was dissolved because of parties' conduct and restrictive covenant was unenforceable as a penalty. Appeal from judge's finding portion of covenant was valid and severable and direction for trial on damages payable by ap- pellant for breach of covenant. Judge found appellant withdrew from partnership, triggering clause in agreement that called for reduction of withdrawing partner's capital account by 500 per cent of average fees billed by firm to clients who transferred to withdrawing partner within two years. Appellant had given notice of intention to retire, dissolve partnership and com- mence public accounting work, because of his dissatisfaction with respondent's conduct. Ap- peal allowed. There was no dis- pute this was general dissolution. Upon dissolution, firm ceased to exist and nothing in agree- ment prohibited parties from commencing own practices, so it was reasonable to conclude they were limited to common law and statutory rights on dis- solution, and nothing more. To interpret agreement otherwise and force appellant to choose between staying with partner he was unhappy with or else leaving entire business to respondent would make no commercial sense. Judgment varied to delete impugned paragraphs. Greenaway v. Sovran (Feb. 11, 2014, Ont. C.A., M. Rosen- berg J.A., G.R. Strathy J.A., and M.L. Benotto J.A., File No. CA C57577) 237 A.C.W.S. (3d) 1042. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Officer had no lawful authority to enter unit and lacked consent from accused Appeal by accused from his conviction for assaulting police officer in execution of his duty. Investigating officer and second officer attended at accused's condominium unit in response to noise complaint. Accused identified himself as owner of unit but he refused to give his name to investigating officer. Investigating officer and second officer entered into private resi- dence and investigating officer refused to leave when accused asked him to do so. Investigating officer's admitted purpose was to investigate completed offence of mischief and not to make ar- rest. Investigating officer was not going to leave residence un- til he completed investigation, which required him to obtain accused's name, and he acted as he did in spite of clear lack of consent from accused. Accused was arrested after he pushed in- vestigating officer in chest. Ac- cused was originally charged with mischief in addition to as- sault charge but it decided not to pursue mischief charge. Ap- peal allowed. Conviction was set aside and accused was acquitted. Investigating officer had no law- ful authority to enter unit and he lacked consent from accused. In addition, he could not bring himself within any of exceptions to sanctity of home principle. In- vestigating officer was trespasser and Crown could not prove that he acted in execution of his duty. Trial judge failed to analyze case in this manner because she made three significant errors and these errors caused her to erroneously conclude that investigating offi- cer acted lawfully and in execu- tion of his duty. R. v. Zargar (Mar. 5, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-0000065-00AP) 112 W.C.B. (2d) 112. NEW TRIAL Not clear how trial judge resolved problems with complainant's testimony Appeal from conviction. Ac- cused charged on two separate information arising out of same events. On first information, ac- cused charged with attempt to obstruct justice, threatening to cause bodily harm and breach of recognizance. On second in- formation, accused charged with drug offences and breach of pro- bation. Accused was convicted on all counts in first informa- tion. At second trial, judge be- lieved accused and disbelieved complainant, and acquitted ac- cused on second information. Evidence of second trial over- lapped significantly with that in first trial. Accused appealed con- victions from first trial. Appeal allowed; new trial ordered on all three counts. Complainant's evi- dence was inconsistent and con- fused. Trial judge acknowledged problems in evidence but dis- counted them without explain- ing why. It was not clear how tri- al judge resolved problems with complainant's testimony. Court did not give effect to ground of appeal that assistance of counsel was ineffective. R. v. Labelle (Jan. 17, 2014, Ont. C.A., K. Feldman J.A., J. Mac- Farland J.A., and S.E. Pepall J.A., File No. CA C56173) 112 W.C.B. (2d) 113. SENTENCE APPEAL Accused was career criminal who resisted repeated rehabilitation attempts Appeal from sentence. After trial by judge and jury, accused convicted of breaking and en- tering man's home, assaulting him, threatening to cause him bodily harm, and wounding him by stabbing him with screw driver he had brought to ef- fect break-in. Accused was sen- tenced to eight years in prison and six months consecutive for breaching his conditions of re- lease on outstanding charge of mischief. These sentences were in addition to three years eight months he served in custody prior to his sentencing. Appeal dismissed. Accused's criminal record consisted of more than 100 convictions, most for prop- erty-related offences, but some involving violence or threats of violence. While his longest prior sentence was three years in prison for robbery, he had spent total of twenty of his forty- eight years in jail or prison. Trial judge was fully aware of time accused spent in pre-sentence custody, harsh conditions he experienced and that this was dead time for remission purpos- es. Accused was career crimi- nal who had resisted repeated rehabilitation attempts. He had been both parole violator and statutory release violator. Sub- stantial reason for his incarcera- tion prior to sentence was his repeated breaches of conditions of release. Effective sentence of eleven years eight months not outside range. R. v. Pilon (Jan. 29, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C54551) 112 W.C.B. (2d) 118. LT CASELAW

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