Law Times

Law Times • November 10, 2014 Page 15 www.lawtimesnews.com tiff fiduciary duty not to com- pete with those customers and former customers whose names he obtained from confidential customer list that plaintiff gave to him. Defendant's exclusive relationship with employees on his list gave him unfair ad- vantage when later competing with plaintiff for right to train those customers' employees. Given small market share in which plaintiff operated, loss of 50 customers/former custom- ers to competitor was likely to have serious impact on it finan- cial well-being. Defendant must have known that, by giving him list, plaintiff left itself vulner- able. This gave plaintiff reason- able expectation that defendant would reciprocate by observing duty, set out in agreement, not to compete unfairly after asso- ciation ended. Restrictive cov- enant, while ambiguous, over- broad, and unenforceable, was evidence from which to infer that parties agreed that prohib- iting defendant from training his customers from plaintiff for two years after termination of agreement was reasonable and necessary to protect plaintiff. Geographical area identified was reasonable special restraint to impose on defendant within fiduciary duty he owed to plain- tiff. John A. Ford & Associates Inc. v. Keegan (Aug. 28, 2014, Ont. S.C.J., Price J., File No. Bramp- ton CV-06-01961-00) 244 A.C.W.S. (3d) 238. Equity ESTOPPEL No absolute right of beneficiary to have will proven in solemn form Deceased died of brain cancer. Applicant sought declaration that primary and secondary wills of deceased were not valid asserting that deceased lacked testamentary capacity to give instructions for new wills or to sign them. Application asserted deceased was unduly inf lu- enced to sign them. Applicant received various bequests to him under wills. Applicant as- serted deceased intended him to be sole beneficiary. Respondents sought order dismissing chal- lenge to validity of primary and secondary wills of deceased. Re- spondents asserted relief sought was statute-barred by Limita- tions Act, 2002 (Ont.). Applica- tion dismissed. Application was statute-barred because it was brought more than two years after date of death of deceased. Applicant was estopped. Appli- cant knew of deceased's health issues before she died and knew wills were prepared. Applicant accepted terms of will and acted on terms by selling house, sell- ing condo, taking art, dividing household goods and personal effects, and signing corporate documents. All parties involved took steps on basis wills were valid and estate trustees acted in reliance on shared assumption. Applicant was not permitted to resile from all of his actions. Ap- plicant's conduct induced estate trustees to continue adminis- tration of estate. There was no absolute right of beneficiary or next-of-kin to have will proven in solemn form. Leibel v. Leibel (Aug. 12, 2014, Ont. S.C.J.[Estates List], Greer J., File No. 01-3272/11) 244 A.C.W.S. (3d) 255. Labour Relations TRADE UNION Employee failed to establish conflict of interest on part of union trustees Employee had been member of union local since 1999. Union local established benefit trust to replace health and welfare benefit plan from which it with- drew in 2007. Employee joined competing union in 2010. In 2011, union local adopted pol- icy requiring its members not to be member of competing union. Ontario Labour Rela- tions Board dismissed challenge to union local's policy. Union local expelled employee for fail- ing to resign from competing union. Employee consequently lost benefits payable by benefit trust. Employee brought action against benefit trust's trustees and administrator for damages for breach of trust and breach of fiduciary duties. Action dis- missed. Employee no longer fell within definition of "Employee" in agreement governing benefit trust and so had no entitlement to prior contributions. It was not sufficient for employee to have been "Employee" at time con- tributions were made. Settlers of benefit trust could not have intended that all prior members who went to other unions would be permitted to receive benefits under benefit trust. Agreement governing benefit trust was clear that employee was only entitled to benefits as specifically pro- vided by governing benefit plan. There was no separate account that had been maintained for employee's contributions, and he was not entitled to have them returned. Employee failed to establish conf lict of interest on part of union trustees. Garcia v. MacKinnnon (Trustee of) (Jul. 23, 2014, Ont. S.C.J., A.K. Mitchell J., File No. 8044/12) 244 A.C.W.S. (3d) 196. Sale of Land VENDOR AND PURCHASER APPLIATIONS Defendant not innocent purchase of property for value without notice Plaintiffs resided in property. Plaintiffs purchased commer- cial property and entered into mortgages in connection with sale. Plaintiff was unsuccessful in operating auto body shop at commercial property and com- mercial property was sold. Pro- ceeds of sale were insufficient to discharge mortgage on proper- ty. Plaintiffs defaulted on mort- gage. Plaintiffs contested mort- gage. Company sold property to defendant under power of sale proceeding. Defendant knew extremely little about property at time of purchase. Plaintiffs brought action claiming collu- sion and conspiracy to obtain possession of property. Plain- tiffs sought order setting aside transfer. Defendant brought motion for summary judgment with respect to sale to him of property asserting he was bona fide purchaser for value with- out notice. Motion dismissed. Defendant failed to meet bur- den of showing he was innocent purchaser of property for value without notice. Peculiar features plaintiffs alleged were inherent in transaction were sufficient to show there were genuine is- sues requiring trial. Summary judgment was not appropriate. Claims against other defendants would proceed to trial in any event. It was not in interests of justice to grant summary judg- ment because it would run risk of duplicate proceedings or in- consistent findings of fact. Evi- dence raised significant ques- tions of credibility. Vieira v. Breg Trading Ltd. (Aug. 5, 2014, Ont. S.C.J., Chapnik J., File No. CV-11-439534) 244 A.C.W.S. (3d) 231. ONTARIO CRIMINAL DECISIONS Appeal SENTENCE APPEAL Legislation did not allow judges to avoid consequences imposed on accused Crown appealed four decisions in which sentencing judges made exemptions to accused and did not order them to pay victim fine surcharges. Crown's four appeals were granted and four rulings by trial judges as to victim fine surcharge were set aside; accused ordered to pay victim fine surcharges. In absence of constitutional issue having been raised before trial court, Crown and all defence counsel essentially agreed that there was no alternative but to allow appeals. Each ruling demonstrated effort by trial judge to avoid consequences imposed on accused by new legislation in s. 737 of Criminal Code mandating imposition of victim fine surcharge. Each of trial judges obviously viewed new legislation as detracting from fair application of sen- tencing principles. Problem was that applicable legislation did not allow them this discretion. Each of rulings, as consequence, amounted to legal error. R. v. Nicholson (May. 15, 2014, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-13183, 13-13506, 13-12947, 13-12990) Decision at 113 W.C.B. (2d) 590 was varied. 115 W.C.B. (2d) 318. Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Police were at stage of 'reasonable grounds to suspect' Accused appealed convictions for refusing to provide breath sample, assault with intent to resist arrest, four counts of as- saulting police officer, and one count of carrying concealed weapon. Officers testified that accused was stopped for speed- ing and became uncooperative when officer called for approved screening device. According to officers, accused was belligerent and assaulted then when they tried to make arrest. Accused testified that he fully cooper- ated with police but refused to provide breath sample until he contacted his lawyer. Accused testified that officers hit him. Trial judge did not believe ac- cused's evidence that he told of- ficers that he agreed to provide breath sample but wanted to speak to lawyer first. Accused argued that trial judge erred in finding that police had grounds to demand breath sample. Ap- peal dismissed. Accused had been driving at very high speed and made "rolling stop" at stop sign. Officer noticed strong smell of alcohol on accused's breath, glossy eyes, and ac- cused had admitted that he had consumed alcohol. Police were only at stage of "reasonable grounds to suspect", not higher standard. There was ample evi- dence to support finding of trial judge that there were reasonable grounds to suspect presence of alcohol in accused's body. R. v. Marriott (Aug. 19, 2014, Ont. S.C.J., R.F. Goldstein J., File No. 81/12) 115 W.C.B. (2d) 341. TIME ELEMENT No evidence to explain why waiver of right to counsel was ignored Accused appealed his convic- tion for driving "over 80". Of- ficer pulled over accused as he was leaving drinking establish- ment parking lot and noticed indicia of impairment. Accused failed ASD test, and accused was arrested and read formal breath demand. Accused stated he did not wish to speak with counsel when read his rights but was put in contact with duty counsel. Trial judge found that there was no delay in taking breath tests at station and that samples were taken as soon as practicable. Appeal allowed; conviction set aside, acquittal entered. Court concluded that Crown adduced insufficient evidence from which trial judge could have reasonably concluded that, in all of these circumstances, breath samples were taken as soon as practicable. There was no evi- dence called before trial judge to explain why unequivocal waiver of right to counsel was ignored. Appeal granted on basis of ab- sence of evidence on essential element Crown must prove. R. v. Sicord (Aug. 28, 2014, Ont. S.C.J., Barnes J., File No. 836/13) 115 W.C.B. (2d) 332. Courts ABUSE OF PROCESS Courts loathe to micromanage police investigations Accused was found guilty of at- tempting to participate in ter- rorism and counselling to par- ticipate in terrorism. Accused applied for stay of proceedings based on improperly "prolonged investigation" by police, and unfair "credibility battle" police created by delaying wiretap or- der and deleting text messages from officer's cell phone. Follow- ing tip from accused's employer, undercover officer was installed at accused's workplace. Under- cover officer befriended accused, and over next several months they had numerous meetings and conversations wherein ac- cused outlined his plan to travel to Somalia, via Egypt, and par- ticipate in terrorist organization. Throughout their relationship, accused and officer exchanged numerous text messages, and of- ficer kept written record of those exchanges in his notes. Officer deleted some of text messages from his phone, and when he turned his phone in at end of in- vestigation, police failed to recov- er any data from it. Accused ar- gued that there was limit on how long police could investigate case before laying charges, and they exceeded it in circumstances. Accused argued that police pur- posely delayed getting wiretap order in order to give officer time to fabricate incriminating state- ments, that officer intentionally deleted text messages that would have incriminated himself, and that police deliberately "lost" of- ficer's phone in order to prevent retrieval of any text messages that would have helped defence. Application dismissed. There was no timetable for police inves- tigations. Given that police were perfectly entitled to continue to investigate after arrest, it was difficult to see why there should have been limits on how long they investigated before. Courts were generally loathe to micro- manage police investigations, particularly when they involved undercover officers. Nothing about investigation in this case, including its length, should have shocked conscience of commu- nity or violated its sense of fair play. Undercover operators could only be effective if they had trust of those they were investigat- ing, and gaining trust took time. Rather than being criticized, police were to be commended for their measured and effective approach. Affiant was not im- mediately able to complete sup- porting affidavit, as affidavit of that nature took significant time and involved several meet- ings with Crown, which in turn led to further re-drafting. There was no ulterior motive to delay in getting wiretap order. There was nothing of substance in text messages that would have in- criminated officer or police force behind him, as they consisted of innocuous exchanges that were recorded verbatim in officer's notes throughout investigation. Texts and phone data were lost due to careless handling by po- lice, but not through any sinister motive. R. v. Hersi (Jul. 24, 2014, Ont. S.C.J., Baltman J., File No. CRIM J(S)1557/11) 115 W.C.B. (2d) 348. LT CASELAW

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