Law Times

Law Times • September 29, 2014 Page 13 www.lawtimesnews.com ONTARIO CIVIL DECISIONS Civil Procedure PLEADINGS Failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction On Dec. 26, 2005, two groups of men started shooting at each other on sidewalk in Toronto. Three of combatants were shot, two innocent bystand- ers were injured and one in- nocent 15-year-old was killed. There was police investigation and criminal charges were laid against nine accused, two of whom were youths. Plaintiff was young person and he elect- ed to be tried by judge alone. However, attorney general de- cided to have plaintiff 's election overridden. Notwithstanding attorney general's direction, judge refused to change mode of trial to jury trial. Judge found that attorney general's conduct was abuse of process. Judge admitted video surveillance evidence. Plaintiff was acquit- ted of charge of manslaughter. Plaintiff sued Attorney Gen- eral for malicious prosecu- tion. Attorney general brought motion to strike out amended statement of claim or dismiss action. Motion granted. As matter of private law, malicious prosecution regulated prosecu- torial discretion, but as matter of public law, prosecutorial dis- cretion was also regulated by criminal law doctrine of abuse of process. Attorney general's decision to override plaintiff 's choice of judge alone was ex- ercise of non-core element of prosecutorial discretion that was outside ambit of private law tort of malicious prosecu- tion. Plaintiff argued that case against him was based on part on video surveillance evidence that judges had refused to ad- mit in parallel cases. However, it was not unreasonable for at- torney general to continue trial where video surveillance evi- dence was admitted. It did not logically follow from inability to use surveillance evidence in jury trials that attorney general had no reasonable prospect of conviction at trial where sur- veillance evidence was admit- ted, but was ultimately ruled unpersuasive. Attorney general did not continue prosecution knowing he had no reasonable prospect of conviction. Judge's conclusion that evidence ul- timately did not persuade her that plaintiff was involved in wrongdoing did not necessitate inference that attorney general had purpose other than carry- ing law into effect and that it was unreasonable for attorney general to continue prosecu- tion. Attorney general's failure to connect plaintiff to crime did not establish absence of reasonable prospect of convic- tion and did not show purpose outside of prosecution of case. Plaintiff failed to plead tenable action for malicious prosecu- tion. C. (G.) v. Ontario (Attorney General) (Jan. 20, 2014, Ont. S.C.J., Perell J., File No. 12-CV- 449178) 240 A.C.W.S. (3d) 775. SETTLEMENT Plaintiff had change of heart, which was not basis to set aside settlement Plaintiff was injured in mo- tor vehicle accident and com- menced action for insurance benefits and damages. Parties attended mediation and plain- tiff entered settlement with two insurers, but subsequently resiled from settlement. Mo- tion by insurer S. for summary judgment enforcing settlement for $110,000 payment in ex- change for full and final release. Motion by insurer T., to whom plaintiff agreed in settlement to assign action against un- insured driver and owner, for default judgment against un- insured driver and owner for $288,996.19 in accordance with settlement. Motions granted. It was common ground long- term disability and tort claims were settled and minutes of settlement and releases were executed by all parties. Parties were independently represent- ed by counsel and there was no evidence of duress, lack of capacity or unconscionability. Plaintiff chose not to file her own affidavit and simply put forth her position settlement was not in her best interests through her counsel's affidavit, but counsel did not assert he believed these facts to be true, which reduced weight. Plain- tiff simply had change of heart, which was not basis to set aside settlement. Morant v. Sun Life Assurance Co. of Canada (May. 23, 2014, Ont. S.C.J., Daley J., File No. CV-12-1009-00, CV-12-0208- 00) 240 A.C.W.S. (3d) 594. Contracts UNCONSCIONABILIT Y Director was fast talking, aggressive and took advantage of defendant First plaintiff arranged second mortgage, which was to be ad- vanced to defendant by second plaintiff. Plaintiffs were affili- ated companies with same sole director, who was a mortgage broker and lender. Defendant learned of director through ad- vertisement and contacted him as her second mortgage was in arrears and she needed $60,000 to pay it off. In course of two- hour meeting, director had de- fendant sign documents agree- ing to $80,000 mortgage at 12% interest rate. Action by plain- tiffs to recover $5,000 broker fee and $5,000 lender fee from defendant. Counterclaim by defendant for $25,000 damages for breach of contract, misrep- resentation and punitive dam- ages. Action and counterclaim dismissed. Director was fast talking, aggressive and took advantage of defendant, who was vulnerable with frail and somewhat diminished capac- ity. Director was under fidu- ciary duty to act in defendant's best interests and instead pres- sured her to sign for mortgage with his companies, for high interest rate and larger princi- pal than needed, with excessive fees. Director did not give de- fendant opportunity to obtain independent legal advice, and unsuitability of mortgage was illustrated by fact defendant was able to arrange new first mortgage at 5% interest rate. Documents signed were thus not binding. Despite direc- tor's offensive conduct, defen- dant failed to establish liability against corporations and con- duct did not meet high thresh- old for punitive damages. Mortgage Genie Inc. v. Johnson (May. 14, 2014, Ont. S.C.J., J. Prattas D.J., File No. Toronto SC-10-110789-00, SC-10- 110789-00-D1) 240 A.C.W.S. (3d) 626. Courts PUBLICIT Y No real and substantial risk that disclosure posed serious threat to plaintiff or child Plaintiff 's claim related to schooling of plaintiff 's child and report made by school offi- cials to Catholic Children's Aid Society. Plaintiff 's child was not named party in lawsuit. Plain- tiff claimed defendants violated her and her child's rights under Canadian Charter of Rights and Freedoms, committed torts of defamation and negligence, and breached contract. Plaintiff claimed civil remedies from de- fendants to compensate her for injuries or damages she and her child allegedly suffered. Large portions of statement of claim were struck out and all that re- mained was plaintiff 's personal claim for breach of contract as- suming she was able to amend such claims to meet standards of pleading. Endorsement was reported on CanLII website. Plaintiff sought order sealing court file, preventing any part of file from becoming acces- sible to any non-party to action and preventing any part of file from being posted on website. Defendants were content that court file be sealed. Motion dismissed. Part III and Child and Family Services Act (Ont.), had no application to lawsuit. There was no medical or expert evidence of there being any risk of harm to child. There was no evidence to provide indication that child might be bullied or teased beyond normal toler- ance levels or harmed in any way by release of serious and technical decisions. There was no evidence of child being in need of special consideration as result of physical, emotional or other concern. There was no real and substantial risk, well- grounded in evidence, that dis- closure posed serious threat to plaintiff or child. CanLII was entitled to publish endorse- ment and any other decision in action unless or until court or- dered otherwise. Reyes v. Toronto District School Board (May. 26, 2014, Ont. S.C.J., F.L. Myers J., File No. CV-13-479376) 240 A.C.W.S. (3d) 636. and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! 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