Law Times

Page 14 august 4, 2014 • Law Times www.lawtimesnews.com Injunctions INTERLOCUTORY RELIEF Cutting off exterior ingress and egress to rear of property created potential risk Applicants owned residential property and respondent owned adjoining property. There was lane between two properties largely on respondent's property that provided applicants with only exterior access to their rear yard. Respondent could not use lane to access rear of his prop- erty because of location of deck and sunroom. Respondent com- menced constructing fence to prevent applicants from enter- ing portion of lane lying on his property. Applicants claimed prescriptive easement over lane and sought interim injunction restraining respondent from constructing fence. Applicants were entitled to interim injunc- tion restraining respondent from constructing fence or obstruct- ing applicants from using lane to access rear of property. There was serious question to be deter- mined as to whether applicants had valid claim for prescriptive easement over lane. Inability of applicants to have exterior access to rear of property constituted ir- reparable harm. Cutting off of ex- terior ingress and egress to rear of property by emergency personnel or by occupants of their home created potential risk in event of fire or some other emergency. Re- spondent would suffer minimal or no harm by having to hold off constructing fence until determi- nation of claim and such minimal harm would be far outweighed by harm to applicants in having no exterior access to rear of property. Sciara v. Szpakowski (Apr. 4, 2014, Ont. S.C.J., D.A. Broad J., File No. 14/46168) 239 A.C.W.S. (3d) 184. Privacy Legislation GENERAL No free-standing jurisdic- tion to make disclosure order without consent Applicant and respondent en- tered joint venture agreement to develop diamond mine. Agree- ment gave respondent, as actual operator, right to determine num- ber of employees and terms of employment and required parties to share costs in accordance with their respective interests (appli- cant 49 per cent and respondent 51 per cent). Applicant had right to audit respondent`s accounts and to be provided with copies of relevant documents. In support of quarterly cash call, respondent provide applicant with names, in- ternal employee codes, job status and pay range for each employee working on project along with non-identifiable payroll sum- maries, gross payroll costs and actual hours worked. Applicant requested more detailed informa- tion, particularly actual rate paid to each employee together with breakdown of portion of actual rate attributable to payroll bur- den and to bonus. Respondent refused and applicant applied for order requiring respondent to disclose detailed payroll infor- mation including employment contracts, salary, hours worked, bonus formulae and calculations. Respondent took position that disclosure would violate s. 5(3) of Personal Information Protection and Electronic Documents Act. Application dismissed. Under s. 5(3) of Act, any organization that collected, used or disclosed personal information in course of commercial activities, such as respondent, could collect, use or disclose information only for purposes that reasonable person would consider appropriate in circumstances. Personal infor- mation could be used or disclosed for purposes other than that for which it was collected only with consent of individual or as re- quired by law. In this case, while disclosure of employees' personal information to applicant might be necessary for respondent to meet its contractual obligations under joint venture agreement, information had not been col- lected for that purpose and could not be disclosed in absence of employees' consent. While s. 7(3) of Act allowed disclosure to be made without consent in order to comply with court order, it presupposed such order already made and did not provide free- standing jurisdiction to make one. Mountain Province Diamonds Inc. v. De Beers Canada Inc. (Apr. 2, 2014, Ont. S.C.J., Perell J., File No. 13-CV-484542) 239 A.C.W.S. (3d) 226. Professions DENTISTS Trial judge accepted evidence that patient's jaw could break during surgery despite use of reasonable care Plaintiff was referred to defen- dant to have three wisdom teeth extracted. Plaintiff 's jaw was broken during extraction of last tooth. Plaintiff brought medical malpractice action. Action was dismissed. Plaintiff appealed. Ap- peal dismissed. There were cases where circumstantial evidence could raise inference of negli- gence that called for explanation from defendant. Trial judge did not err in concluding that evi- dence did not reach threshold in this case. Trial judge was entitled to accept defendant's explanation for lack of recollection and to rely on evidence of how he performed extraction based on post-opera- tive notes and invariable practice. There was expert evidence ac- cepted by trial judge that patient's jaw could break during surgery despite use of reasonable care. Trial judge accepted defendant's expert evidence and rejected plaintiff 's expert evidence and gave detailed and cogent reasons for doing so. Trial judge made no palpable and overriding error and there was no basis to interfere with findings based on assess- ment of evidence. Dickie v. Minett (Apr. 3, 2014, Ont. C.A., M. Rosenberg J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C56191) Deci- sion at 221 A.C.W.S. (3d) 1010 was affirmed. 239 A.C.W.S. (3d) 243. Sale of Goods DELIVERY By signing and returning acknowledgments, defendant created binding contract Parties discussed specifications of tree grates and guards and then defendant placed order by phone five weeks later. There was no written or witness evidence of what was said in phone call, but plaintiff sent two order acknowl- edgements that described small- er width on square grates than what parties originally discussed. Defendant's agent signed and returned acknowledgements. Defendant asserted smaller width of grates was error that avoided liability. Action for $9,438.93 for goods sold and delivered; counterclaim for $11,017.50 on basis of late delivery, goods not as ordered and poor qual- ity. Action allowed; counterclaim dismissed. No doubt agent was hired to represent defendant and had signing authority. Sensible interpretation was that items ordered were those described in earlier drawings, with specific details, including width, in order acknowledgements. With no evi- dence about phone conversation, not at all clear smaller width was error that would avoid liability and was more likely what defen- dant's agent requested. By signing and returning acknowledgments, defendant created binding con- tract. Both orders were delivered well in advance of delivery date stated in contract, and when plaintiff was advised of error in guards, it had them picked up, re-worked and returned to defen- dant still in advance of delivery date. Plaintiff 's evidence defen- dant did not raise complaint about size of guards until after delivery date was supported by e-mails. Photographic evidence showed guards were galvanized as ordered, and defendant's com- plaint about two small, incon- spicuous rust spots was trivial. Defendant's evidence was essen- tially series of empty complaints raised after the fact in an attempt to avoid the costs of an error for which the defendant was respon- sible. Citygreen Urban Ltd. v. PLS Land- scaping & Excavating Ltd. (Mar. 30, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 88/13) 239 A.C.W.S. (3d) 253. Sale of Land SPECIFIC PERFORMANCE As soon as plaintiff found new property, she had no intention of completing transaction Two actions arose from aborted real estate transaction, involving property owned by defendant. Plaintiff and defendant had en- tered into agreement of purchase and sale dated June 30, 2011 for purchase and sale of property for amount of $586,000 with $15,000 deposit. Defendant purchased new property based on sale of property in issue. Shortly before sale of property was to close on September 30, 2011, plaintiff en- tered into another agreement of purchase and sale to purchase another property. Plaintiff failed to close purchase of property. Defendant was able to sell prop- erty but for $8,000 less than price offered by plaintiff. Plaintiff brought claim alleging that she was unable to complete purchase of property because of fault of defendant. Plaintiff sought re- turn of her deposit in amount of $15,000 and damages in amount of $10,000. In defendant's claim, defendant sought damages in amount of $23,709.35, for her loss when plaintiff failed to close real estate transaction for prop- erty. Plaintiff 's claim dismissed. Defendant's claim allowed. De- fendant had fulfilled all her obli- gations under agreement of pur- chase and sale, and demonstrated on balance of probabilities that she was ready, willing and able to complete transaction on Sept. 30, 2011. It was clear that as soon as plaintiff found new property, she had no intention of complet- ing transaction with defendant. It was also clear that plaintiff was not ready, willing and able to close transaction on Sept. 30, 2011. De- fendant was awarded damages of $23,709.35 for loss on resale of property, carrying charges, legal fees and amounts incurred to make improvements requested by plaintiff. Fang v. Peroff (Mar. 6, 2014, Ont. S.C.J., J. Prattas D.J., File No. Toronto SC-12-5386-00, SC-12- 5386-00D1) 239 A.C.W.S. (3d) 254. ONTARIO CRIMINAL DECISIONS Appeal NEW TRIAL Unresolved concerns about secondary evidence affected its probative value Appeal by accused from judg- ment that convicted him of steal- ing under $5,000 from his em- ployer. Accused worked for fast food restaurant and proceeds of sale for November 20, 2009, in amount of $2,653, were missing. Accused was manager on No- vember 21, 2009 and one of his tasks was to ensure that previous day's revenues were delivered to bank night deposit chute. He was last person from restaurant to have possession of deposit pack- age. Accused claimed he took package to chute, dropped it in and he returned to restaurant for day. Video recording of chute was destroyed but Crown advanced secondary best evidence from three witnesses who claimed to have viewed video recording and they did not see accused at chute. One of witnesses, who worked for landlord of premises where bank was located and who had control of video recordings, con- firmed that video was not altered or changed at times it was viewed. Trial judge relied heavily on testi- mony from these three witnesses in deciding to convict. Appeal allowed. Judge did not err in ad- mitting testimony regarding con- tents of video. There were, how- ever, unresolved concerns about secondary evidence that affected its probative value. Destruction of recording inherently prejudiced defence. Recording brought pos- sible vindication. Witnesses were not trained investigators and there were serious deficiencies re- garding their testimony. Judge did not advert to this issue and ruling on weighing of probative value and prejudicial effect in relation to secondary evidence would have to be made on retrial. Judge also misapprehended evidence and this resulted in miscarriage of justice. Cumulative effect of er- rors raised issues of trial fairness and, since accused did not receive fair trial, new trial was required. R. v. Lapensee (Apr. 8, 2014, Ont. S.C.J., Rick Leroy J., File No. 13- 39) 112 W.C.B. (2d) 639. Arson ELEMENTS OF OFFENCE Arson was specific intent offence and appropriate to consider evidence of intoxication Trial judge acquitted accused of arson after considering evi- dence of accused's intoxication. Accused stayed at girlfriend's residence following breakup and drinking to excess while agi- tated. Accused woke up and left bacon cooking on "high" while intoxicated and leaving residence to return to fire. Trial judge con- sidered defence of accident and accused's intoxication after con- cluding arson was specific intent offence. Trial judge finding rea- sonable doubt accused had ability to understand fires could be likely outcome of actions. Crown's ap- peal dismissed. Trial judge cor- rect that arson was specific intent offence and appropriate to con- sider evidence of intoxication. Offence of arson required proof of subjective mental elements of intent or recklessness. Parliament intended to distinguish arson in s. 434 from accidental fires by in- cluding offence of arson by negli- gence in s. 436. R. v. Tatton (Apr. 8, 2014, Ont. C.A., S.T. Goudge J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C57550) 112 W.C.B. (2d) 643. Extraordinary Remedies CERTIORARI Just lost jurisdiction by proceeding ex parte and made orders that could not be supported Accused applied for certiorari to quash his committal for trial made on ex parte basis. Accused was young person found un- fit to stand trial in 2003 which prompted ex parte basis applica- tion by Crown in 2013. Annual mandatory requirements of s. 672 of Criminal Code were not adhered to from 2007 to 2013 and Crown failed to properly ap- ply for extension of time to hold hearing. Only evidence presented on application was affidavit of police officer who deposed that he spoke with alleged victim and his mother and based on con- versation was satisfied that there still existed reasonable grounds that accused committed offences and this case could proceed to CASELAW

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