Law Times

Law Times • augusT 18, 2014 Page 15 www.lawtimesnews.com direct evidence of economic loss or damage as result of stigma of haunted property. There was no direct evidence from anyone who observed any strange oc- currences at property. Motion judge did not err in concluding that case was proper one for dis- missal on summary judgment. 1784773 Ontario Inc. v. K-W Labour Assn. Inc. (Apr. 14, 2014, Ont. C.A., Feldman J.A., Rou- leau J.A., and Hourigan J.A., File No. CA C57674) Decision at 234 A.C.W.S. (3d) 1067 was affirmed. 239 A.C.W.S. (3d) 529. Corporations CORPORATE IDENTITY Corporate defendants were alter egos of each other and acted as single business Plaintiff delivered electrical equipment to defendant com- panies. Plaintiff claimed it was owed $150,950.16. Defen- dants did not dispute receiving goods from plaintiff for which they had not paid, but dis- puted amount owing. Plaintiff brought motion for summary judgment for breach of contract and breach of trust under Con- struction Lien Act (Ont.). Mo- tion granted in part. Plaintiff 's documents were sufficient to establish account balance and were accepted in absence of any probative evidence to contrary. Plaintiff was awarded judgment of $150,950.16 plus interest. De- fendant companies were itera- tions of same business. It was not clear which company ordered and used goods purchased from plaintiff. It was within defen- dants' knowledge which com- pany had benefit of supply of plaintiff 's goods. Defendants were deliberately misdirecting liability among themselves. For purposes of supply contracts at issue, corporate defendants were alter egos of each other and acted as single business and were jointly and severally liable. Individual defendant was oper- ating mind of companies and was person plaintiff dealt with. If there was breach of trust then individual would be liable for it. It was for plaintiff to show that there were trust funds and that funds had been disbursed in breach. Information that was relevant to establishing propo- sitions would be in defendants' possession and had not yet been produced. Individual defendant failed to attend for cross-exam- ination, but there was evidence that failure was inadvertent and individual defendant was given another chance to discharge his obligation before drawing ad- verse interference of breach of trust. Individual defendant was to provide list of documents. Rexel Canada Electrical Inc. v. Tron Electric Inc. (Mar. 31, 2014, Ont. S.C.J., D.L. Corbett J., File No. CV-11-433830) 239 A.C.W.S. (3d) 361. Mental Health COMPULSORY TREATMENT Imperative that appellant receive treatment before appeal was heard Appellant was involuntary pa- tient at Oakville Trafalgar Me- morial Hospital, and had been there since Nov. 13, 2012. Ap- pellant was being treated by re- spondent psychiatrist. On Dec. 17, 2012, Consent and Capacity Board confirmed appellant's in- voluntary status and held that she was not capable of consent- ing to treatment. Appellant filed notice of appeal with court before board's reasons were re- leased, but did not perfect her appeal. Respondent moved for order authorizing treatment of appellant pending hearing of appeal. Motion granted. It was imperative that appellant re- ceive treatment before appeal was heard. There was evidence of appellant's rapid deteriora- tion of both mental health and physical health. Hallucinations and delusions had become more severe over past two months. Appellant had lost 30 pounds since her admission. Appellant's husband could no longer deal with her condition and appel- lant could not be left unsuper- vised. Medication treatment recommended by respondent would or was likely to improve appellant's condition and her condition would not improve without it. Benefit of taking medication far outweighed risk of harm to appellant. H. (L.) v. Hastings (Apr. 24, 2013, Ont. S.C.J.[Estates List], Greer J., File No. 03-139/12) 239 A.C.W.S. (3d) 506. Trusts and Trustees TRUSTS Respondent became owner of funds on death of deceased by right of survivorship Deceased advised respondent that he wished to contrib- ute $10,000 to his alma mater and to transfer $35,000 to his granddaughter and confirmed intentions with handwritten note. Deceased changed bank account to joint bank account with respondent. Respondent made no contribution to con- tents of account. Deceased gave respondent another handwrit- ten note confirming wishes. Estate was insolvent with in- sufficient assets available to pay debts. Respondent confirmed that he was made joint account holder as convenience to de- ceased in order to give effect to deceased's instructions. After deceased died, respondent paid $35,000 to granddaughter and $10,000 to alma mater. Respon- dent transferred balance to his own account and respondent had verbal instructions from deceased to pay balance to de- ceased's son. Parties disagreed on whether beneficial owner of funds on deceased's death was estate or respondent in trust for others. Application dismissed. Contents of joint bank account were not held for benefit of es- tate. Respondent met onus to rebut presumption of resulting trust. Respondent became legal owner of funds on death of de- ceased by right of survivorship. Lack of any personal benefit to respondent supported evidence rebutting presumption of re- sulting trust since it removed concern that evidence was self- serving. Deceased had right to set up joint account with inten- tion that proceeds would be- long to respondent legally, but were to be used in accordance with deceased's instructions. In effect, deceased set up trust with respondent as trustee when he added respondent as legal title holder to joint bank account with granddaughter, alma mater, and son as benefi- ciaries. Lowe Estate v. Lowe (Apr. 16, 2014, Ont. S.C.J., Robert B. Reid J., File No. 10-21122) 239 A.C.W.S. (3d) 540. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Misapprehended evidence relied on to make crucial cred- ibility assessments at trial Trial judge convicted accused of sexual assault of neighbour's five- year-old daughter. Complain- ant testified during horseplay where accused blew on children's stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Fo- rensic expert testified depos- its of accused's DNA found in complainant's underwear but not from external vaginal swab. Forensic expert testified second- ary transference of DNA to un- derwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to un- derwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster cred- ibility of complainant and reject evidence of accused. Appeal al- lowed and new trial ordered. Trial judge critically misappre- hended forensic evidence by stat- ing deposit could only have been through oral sex and wholly ig- nored negative result of vaginal swab. Misapprehended evidence relied on to make crucial cred- ibility assessments at trial. Cor- rectly apprehended forensic evi- dence tended to bolster accused's admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant's evidence oral sex occurred. R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788. SENTENCE APPEAL Accused diverted millions of dollars at expense of share- holders of public company Accused sought leave to appeal his sentence of eight years' in- carceration, US $17,990,740 res- titution order, and fine in lieu of forfeiture of US $15,514,643, to be paid within three years of re- lease from custody, failing which an additional six years' impris- onment would be imposed, im- posed after he was convicted four counts of fraud over $5,000. Leave to appeal granted; appeal dismissed. Court not satisfied that trial judge misapprehended any evidence in imposing his sentence. In any event, even if accused could establish some er- rors regarding relatively minor factual references complained of, he had failed to demonstrate how such alleged errors rendered term of imprisonment unfit. Similarly, court did not see how failure to credit accused for pay- ing back approximately 10 per cent of missing funds, when trial judge found that accused had, at least at one point, ability to pay back more, rendered sentence unfit. This was entirely appro- priate case for restitution order. Accused diverted millions of dollars to his personal use at ex- pense of shareholders of public company. Court did not see any error in quantum of restitution ordered. R. v. Waxman (Apr. 3, 2014, Ont. C.A., David Watt J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C54368) Deci- sion at 97 W.C.B. (2d) 489 was affirmed. 112 W.C.B. (2d) 792. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Lack of reliability concerning initial tip increased obligation of officers Accused sought to exclude evi- dence regarding his arrest for cocaine trafficking. Police re- ceived anonymous tip and put accused under surveillance and observed him have four meet- ings which police suspected were drug transactions. Accused was long term resident of communi- ty, knew lots of people and was observed to meet in place such as department store and hock- ey game. Application granted, evidence excluded. Court did not find reasonable and prob- able grounds for arrest, various meetings could be accounted for by other explanations and all of them appeared to be neutral in nature. Lack of any reliability concerning initial tip and ac- cused's lack of criminal record increased obligation of officers in their investigation to at least observe hand to hand transac- tion or, where drugs were later found, face to face meeting. It was especially necessary consid- ering fact that accused appeared to have been long time resident of community who knew many people with meetings having possible innocent explanation. R. v. Biadi (Apr. 22, 2014, Ont. S.C.J., McDermot J., File No. CR-12-00004914-0000) 112 W.C.B. (2d) 771. Drug Offences GENERAL Criminal history of infor- mation insufficient to form reasonable suspicion Accused sought stay based on entrapment of charges of traf- ficking in cocaine and proceeds of crime. Police did not take steps to verify tip that accused was dealing drugs because in- formant had criminal past some 20 months earlier. Officer con- tacted accused and asked if he could supply him with 80 and accused replied in affirmative. Application granted. Criminal history of informant was insuf- ficient to form reasonable suspi- cion. Since there was no reason- able suspicion at time, words of officer amounted to more than investigative step as they went further and provided accused with opportunity to commit of- fence of trafficking. There was distinction between statements such as "I need product", "Can you hook me up?", "Are you around?" or "Where are you?" as opposed to statements such as "I need 80", "I need 40", "I need 6 greens" or "I need half a B". Latter statements as were used in this case involved requests to purchase specific quantity of drugs, were more definite and less exploratory and not inves- tigative in nature. Former state- ments of needing product and that type allowed for possibility of deal that still needed to be ex- plored and developed but with latter, all accused needed to say was "yes". R. v. Williams (Apr. 15, 2014, Ont. S.C.J., Trotter J., File No. 1-621771) 112 W.C.B. (2d) 780. Mens Rea DRIVING OFFENCES Officer authorized to randomly stop vehicle to check for sobriety Accused appealed his convic- tion of over 80 on grounds of- ficer did not have reasonable suspicion to make ASD demand and judge wrongly rejected de- fence based on assessment of credibility of witness. Officer testified he stopped accused because he left bar which was known in police circles as being in top ten places where impaired drivers have been arrested. Of- ficer noticed no problem with driving of accused and no signs of impairment but accused did admit to drinking one beer. Accused also testified that he drank one beer per hour but judge rejected testimony of witness that beer bottles could have been mislabelled as pure speculation. Appeal dismissed. Section 48 of Highway Traffic Act (Ont.) authorized officer to randomly stop vehicle to check for sobriety and issue was not whether accused was impaired but whether there was alcohol in his body. Findings of fact were open to judge and were owed deference and judge may have erred in rejecting defence based on credibility alone judge was entitled to treat bottle possible mislabelling as mere specula- tion. In addition mens rea of of- fence was voluntary consump- tion of alcohol. R. v. Krizanac (Apr. 15, 2014, Ont. S.C.J., Fragomeni J., File No. SCA(P) 265/13) 112 W.C.B. (2d) 801. LT CASELAW

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