Law Times

Law Times • sepTember 15, 2014 Page 19 www.lawtimesnews.com attempt of agreement, and to obtain advantage by creating status quo. In best interests of children to return to reside in same region as father. Mother had agreed to move if children ordered to do so. If she did not, children should reside primar- ily with father. Jones v. Jones (Apr. 3, 2014, Ont. S.C.J., James W. Sloan J., File No. FS-656-13) 240 A.C.W.S. (3d) 106. Injunctions LIBEL AND SLANDER Axiomatic that injunctions not available where dam- ages were adequate remedy Plaintiff and corporate defen- dant were scooter dealers. In- dividual defendant was prin- cipal of corporate defendant. Scooter distributor terminated plaintiff 's dealership contract. During ensuing dispute, dis- tributor alleged plaintiff was still selling scooters for which it had not paid. Defendants al- leged plaintiff was also obtain- ing scooters from other dealers at discount and reselling them. Plaintiff hired investigators who recorded defendants say- ing bad things about plaintiff. Plaintiff brought action against defendants for relief for defa- mation. Action allowed in part. Plaintiff was awarded $10,000 for general damages, but was denied permanent injunction restraining further defamatory statements. Permanent injunc- tion was exceptional remedy that was not warranted here. There was no reason to believe defendants would f lout court's determination and carry on making defamatory state- ments about plaintiff. There was no reason to believe plain- tiff would be unable to enforce judgment against defendants. It was axiomatic that injunctions were not available where dam- ages were adequate remedy. Motoretta Inc. v. Twist & Go Power Sports Inc. (Apr. 28, 2014, Ont. S.C.J., D.L. Corbett J., File No. CV-12-452342) 240 A.C.W.S. (3d) 248. Limitations REAL PROPERT Y Investor's claims related to purchase of mortgage rather than mortgage itself Mortgagee provided one-year second mortgage to mort- gagor after being misled about amount of first mortgage. In- vestor purchased second mort- gage from mortgagee and re- ceived payments directly from mortgagor. Investor learned mortgagor had fraudulently concealed that amount of first mortgage was almost full value of mortgagor's property. Inves- tor nonetheless renewed second mortgage on successive occa- sions. Mortgagor made assign- ment into bankruptcy, and sec- ond mortgage became worth- less. Investor commenced action against mortgagee for damages for negligence, breach of contract, and breach of fidu- ciary duty. Mortgagee brought motion for summary judg- ment dismissing action. Mo- tion granted; action dismissed. Investor commenced action three years and seven months after two-year limitation pe- riod in Limitations Act, 2002 (Ont.), began to run. Ten-year limitation period in s. 43 of Real Property Limitations Act (Ont.), did not apply. Action was not "upon a covenant con- tained in an indenture of mort- gage". Investor's claims related to purchase of mortgage rather than mortgage itself. Two-year limitation period began to run no later than April 3, 2008 when investor was well aware of fraud. Fact that investor had not known full extent of dam- ages until 2011 was irrelevant. Zabanah v. Capital Direct Lend- ing Corp. (Apr. 22, 2014, Ont. S.C.J., Himel J., File No. CV-11- 440167) 240 A.C.W.S. (3d) 190. Real Property CONDOMINIUMS No remedies short of vacating unit sufficient to address breaches Condominium unit owner with mental health issues had physically assaulted property manager, behaved abusively to condominium staff, repeatedly harassed, threatened and be- haved aggressively toward oth- er unit owners on common ele- ments, left refuse and offensive materials in common element hallways, posted notes and pictures in common elements without approval. Order was made restraining unit owner from entering upon common elements of condominium cor- poration except for purpose of ingress and egress from her unit, from having any oral or physical contact or communi- cation with any resident or em- ployee of condominium, from disturbing comfort of unit owners and guests and disturb- ing quiet enjoyment of com- mon elements. After order was made unit owner started two fires in her unit, and breached several aspects of order which had been made. Unit owner was then ordered to undergo men- tal health examination, how- ever she did not comply. Office of Public Guardian and Trustee was appointed unit owner's Litigation Guardian. Unit own- er was subsequently arrested pursuant to Mental Health Act (Ont.), was medicated and returned to unit. Condomini- um corporation was spending $400 per day security related to unit owner. Condominium corporation applied for signifi- cant relief pursuant to Condo- minium Act (Ont.), including orders that unit owner vacate unit and that unit be sold. Ap- plication granted; unit owner ordered to list unit for sale and to vacate unit earlier of sale or 90 days from order, unit owner also restrained from harassing or disturbing other unit own- ers and from placing debris or signage in common elements. Previous court orders were not sufficient to control unaccept- able and antisocial behaviour of unit owner and her actions presented series of health and safety issues for other residents, management and visitors to condominium corporation. There were no remedies short of order vacating unit and or- dering sale sufficient to address uncontested breaches of Act and rules of condominium cor- poration. York Condominium Corp. No. 301 v. James (Litigation guard- ian of ) (May. 5, 2014, Ont. S.C.J., B.P. O'Marra J., File No. CV-13-487955) 240 A.C.W.S. (3d) 223. ONTARIO CRIMINAL DECISIONS Appeal NEW TRIAL Non-expert witness could give evi- dence that person was intoxicated Appeal by Crown from ac- quittal of accused on charge of operating motor vehicle while drug impaired. Accused was arrested and he was taken be- fore police officer who was drug recognition expert (DRE), who concluded that accused was drug impaired. Trial judge found that DRE's opinion was to be received without con- ducting voir dire. Accused was acquitted, Crown successfully appealed and new trial was ordered. At new trial Crown sought to call DRE to give evi- dence without voir dire. Ac- cused objected to this approach and judge found that voir dire was necessary. Voir dire was conducted, judge refused to qualify DRE as expert and his opinion was not allowed. DRE could not even give lay opinion on issue of accused's possible impairment. Acquittal that was subject of this appeal resulted. Appeal allowed. DRE's opinion could be given in court without voir dire. Non-expert witness could give evidence that person was intoxicated and police offi- cer, without qualification, could give evidence that accused was intoxicated or impaired. No specific qualifications were re- quired. DRE should have been able to give his lay opinion re- garding accused's condition. DRE should have been able to give his evidence. New trial was ordered because it was only al- ternative in this case. R. v. Bingley (May. 22, 2014, Ont. S.C.J., McLean J., File No. 09-2086) 113 W.C.B. (2d) 198. Evidence CONSCIOUSNESS OF GUILT Trial judge erred by leaving post-offence conduct as proba- tive on issue of intent to kill Jury convicted accused of sec- ond degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual rela- tions at his home. Accused tes- tified he inadvertently smoth- ered deceased during effort to restrain her when his retreat from her attack failed. Patholo- gist being unable to pinpoint cause of death. Accused hav- ing engaged in extensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Po- lice uncovered considerable forensic evidence in home not- withstanding accused's efforts to clean. Accused f leeing from and lying to police about hav- ing been responsible for death when first arrested. Accused raised defences of self-defence and provocation. Crown argu- ing evidence suggested pro- longed and brutal attack of de- ceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Appeal al- lowed and new trial ordered. Trial judge erred by leaving post-offence conduct of f light and lies to police as probative on issue of intent to kill. Evi- dence had no probative value on intent as person responsible for manslaughter just as likely to f lee and lie to authorities. Tri- al judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative to intent. Evi- dence only probative of intent if jury first accepted Crown's the- ory deceased had been victim of prolonged, bloody attack by ac- cused. Curative proviso did not apply as issue of intent and evi- dence of post-offence conduct central issues at trial. R. v. Rodgerson (May. 8, 2014, Ont. C.A., Doherty J.A., K. Fledman J.A., and J.C. MacPherson J.A., File No. CA C56484) 113 W.C.B. (2d) 232. Mental Illness DETENTION Finding that hospital unable to manage risk neither unrea- sonable nor error in law Accused appealed disposi- tion of Ontario Review Board which ordered his detention in secure forensic unit of hospital. Accused was found not crimi- nally responsible after trial on charges of forcible confinement and assault. Accused became infatuated with complain- ant and was under delusion that she was in love with him. After initially being ordered detained on general forensic unit, accused made it clear that he had no intention of taking treatment and did not believe his diagnosis. Accused's para- noid beliefs became more en- trenched and had extended to hospital staff, including one of his treating psychiatrists. Based on doctor's testimony that ac- cused's complete disengage- ment from his treatment team made management of his risk impossible, board found that accused remained significant threat to safety of public and ordered that he be detained in secure forensic unit. Accused argued that board erred by placing him in secure forensic unit, gave insufficient reasons for refusing to place him in hy- brid unit, and erred by limiting his right to cross-examine his treating psychiatrist. Appeal dismissed. Board's finding that hospital was unable to manage accused's risk unless he was de- tained in secure forensic unit was neither unreasonable nor error in law. On secure forensic unit, there was higher staff ra- tio which could lead to greater vigilance. Main reasons for ac- cused's original transfer to se- cure forensic unit from general forensic unit remained. Read- ing reasons as whole, board did not address issue regarding hybrid unit because it found that accused should have been detained in secure unit, and it was not necessary to go fur- ther. There was no unfairness in board's having limited right of cross-examination. At point of intervention, counsel had elicited evidence she needed to make her points about di- agnosis, proposed treatment, side-effects of anti-psychotic medication, and that there was no guarantee that medication would make delusions disap- pear. Board asked counsel to explain relevance of further cross-examination on matters in question, but that relevance was not made. Gajewski, Re (Apr. 29, 2014, Ont. C.A., K.M. Weiler J.A., K. Feldman J.A., and E.E. Gillese J.A., File No. CA C57630) 113 W.C.B. (2d) 241. Sentence FRAUD AND FALSE PRETENCES Conditional sentence not appro- priate in cases involving convic- tions for large-scale fraud Appeal by accused from his sentence for committing fraud over $5,000. Accused active- ly participated in mortgage scheme that involved 23 resi- dential mortgages and $4 mil- lion and as result of that scheme various lenders forwarded funds for non-existent real estate transactions. Funds ob- tained through fraudulent ac- tivities were subsequently laun- dered through financial institu- tions that were unaware of how money was obtained. Accused was sentenced to 18 months of incarceration and he had to pay $250,000 in restitution. Appeal dismissed. Conditional sentence was not appropriate in cases that involved convictions for large-scale fraud. Judge did not err when he imposed resti- tution order for it was based on applicable law. R. v. Cunsolo (May. 7, 2014, Ont. C.A., K.M. Weiler J.A., K. Feldman J.A., and E.E. Gillese J.A., File No. CA C54808) 113 W.C.B. (2d) 195. LT CASELAW

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