Law Times

Law Times • November 17, 2014 Page 15 www.lawtimesnews.com tion order to applicant, which prohibited it from selling to- bacco products for six months. Motion by applicant for stay of prohibition order pending ap- peal and application for judi- cial review. Motion dismissed. There was no serious issue to be tried. Section 16(2) of Act made it mandatory for Minister to is- sue prohibition order after two convictions; there was no dis- cretion and thus, no decision. Applicant had right to hearing and appeal upon being charged. Section 7 of Canadian Char- ter of Rights and Freedoms did not apply to corporations and economic rights. Applicant was expected to know Regulations and chose to proceed without legal advice, despite notice of consequences. Sale of tobacco to minors was serious issue and six-month prohibition after two convictions was not arbitrary, overbroad or grossly dispropor- tionate, nor was it cruel and un- usual punishment or a second- ary sentence. 1251553 Ontario Inc. v. Ontario (Minister of Health and Long- Term Care) (Aug. 19, 2014, Ont. S.C.J., H.S. Arrell J., File No. St. Catharines 55240/14) 244 A.C.W.S. (3d) 270. Employment WRONGFUL DISMISSAL Plaintiff 's refusal to sign agree- ments did not constitute repudia- tion of non-compliance terms Defendant employed plaintiff as pharmacist manager. Plaintiff was shareholder of defendant and was party to shareholder agreement. Defendant termi- nated plaintiff 's employment. Business was in process of being sold. Plaintiff was interested in purchasing business but never made offer. Defendant entered into agreement of purchase and sale with new purchas- ers that contained covenant by defendant that plaintiff would be bound by non-competition clause and non-solicitation clause. Plaintiff knew nothing of terms. Plaintiff worked at an- other pharmacy part-time for two months. Plaintiff received notice terminating shareholder agreement. Parties entered into agreement. Defendant asserted it did not pay sums due under agreement because plaintiff did not sign non-competition or non-solicitation agreements. Non-competition or non-solici- tation agreements were present- ed to plaintiff after date of agree- ment with defendant. Plaintiff 's claim that business was sold out from under her was not sup- ported by evidence. Plaintiff was awarded damages. Plaintiff was entitled to 13 months' no- tice. Agreement was enforce- able. Defendant failed to hon- our agreement and remained in non-compliance with its fi- nancial terms. Plaintiff 's refusal to sign agreements presented to her after sate of agreement did not constitute repudiation of non-compliance terms putting her in breach because agreement did not anticipate broad terms of non-competition agreement she was asked to sign. There was no evidence linking plaintiff 's health issues to manner of dis- missal. There was no obligation on plaintiff to execute covenant in form presented and no dam- ages could f low from her failure to sign. El-Hawary v. 1202827 Ontario Inc. (Sep. 12, 2014, Ont. S.C.J., Timothy D. Ray J., File No. Ot- tawa 12-54323) 244 A.C.W.S. (3d) 352. Insurance LIABILITY INSURANCE Exclusion clause lim- ited to intentional failure to take steps to prevent abuse Applicant parents were co-de- fendants in action. Statement of claim alleged child of applicant parents bullied, threatened, hit and physically assaulted plain- tiff. Statement of claim alleged applicant parents were negli- gent. Applicant parents sought declaration that respondent had duty to defend and indemnify them under insurance policy. Application granted. Claims ad- vanced against applicant par- ents fell within scope of cover- age provided by policy and were not caught by exclusion clause. Elements of intentional tort claim against minor applicant and negligence claim against applicant parents were distinct. Negligence claim was not de- rivative of intentional tort claim. Since acts of applicant parents were not intentional, coverage was not to be excluded on such ground. Exclusion clause was limited to intentional failure to take steps to present physical abuse or molestation and was not to extend to situations where that failure arose through negli- gence. E. (D.) v. Unifund Assurance Co. (Sep. 11, 2014, Ont. S.C.J., Stin- son J., File No. CV-13-495144) 244 A.C.W.S. (3d) 429. ONTARIO CRIMINAL DECISIONS Attempts GENERAL Accused incapable of planning and deliberation required to tell convincing lie Trial of accused for attempting to obstruct justice. Individual at- tended at police station on April 5, 2011 and he informed officer that he was responsible for large marijuana grow-op that police discovered in October 2010. Owner of property was arrest- ed at site and he was charged. Owner was released from cus- tody pursuant to recognizance. Accused was owner's younger brother and he was named as surety on recognizance for $50,000. Owner lived with ac- cused after his release. Several hours after individual con- fessed to crime he admitted that he was not involved in grow-op and he was promised $25,000 by owner if he confessed to being person who used prop- erty for growing marijuana. He only visited property once, on March 27, 2011, to familiarize himself with property before he confessed to police. Individual claimed that he was accompa- nied and driven to property by accused. Owner could not accompany him because his recognizance did not permit him to visit property. Accused denied knowing that marijuana was grown on property and he denied meeting individual pri- or to court proceedings in this matter. Accused convicted. In- dividual's evidence had internal consistency that underscored its reliability. It was supported by facts and other evidence and it was credible and truthful. Court would not make adverse finding of credibility against in- dividual solely because he had criminal record. Individual was simple man who lacked ability to set up and operate sophisti- cated grow-op and it would not have taken two officers who in- terviewed him too long to come to that realization. He was in- capable of planning and delib- eration that was required to tell convincing lie. R. v. Yeung (Sep. 4, 2014, Ont. S.C.J., E.J. Koke J., File No. CR- 12-26-0000) 115 W.C.B. (2d) 435. Evidence BURDEN OF PROOF No error in manner in which trial judge analyzed evi- dence of defence witness Accused appealed convic- tion for criminal harassment, threatening to cause serious bodily harm, and breach of pro- bation. Accused and complain- ant had been in arranged mar- riage. Complainant received text messages within short peri- od of time from same electronic source. Messages were abusive and threatening and at one point sender referred to com- plainant as his "wife". At time messages were sent, accused was prohibited, by conditions of probation order, from commu- nicating with complainant. Tri- al judge concluded that accused had sent messages. Accused argued that trial judge failed to properly apply principles estab- lished by R. v. W. (D.). Accused argued that trial judge subject- ed defence evidence to higher standard of scrutiny than he applied in relation to Crown evidence. Accused argued that verdict was unreasonable. Ap- peal dismissed. Trial judge did not expressly refer to W. (D.) analysis, perhaps because ac- cused did not testify at trial and because credibility of lone de- fence witness was not in serious issue. Trial judge clearly recog- nized that Crown was required to prove alleged guilt of accused beyond reasonable doubt. There was nothing to support notion that trial judge mistak- enly employed different levels of scrutiny to evidence called by Crown and defence. There was no error in manner in which trial judge analyzed evidence of defence witness. Accepting evi- dence of defence witness as en- tirely honest and truthful, trial judge was still entitled to con- clude that his testimony simply did not provide accused with alibi. There was nothing about way in which trial judge ana- lyzed and accepted complain- ant's testimony that suggested that he applied lesser, different, or more forgiving standard of scrutiny. Verdicts were those that properly instructed jury, acting judicially, could reason- ably have rendered given all of evidence. It was not for court to re-try case on appeal and reach different verdicts. Substantive contents of threatening text messages suggested that they were sent by accused as, most obviously, sender expressly re- ferred to complainant as his wife. R. v. Ahmad (Sep. 2, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 142/12) 115 W.C.B. (2d) 469. OPINION EVIDENCE Trial judge entitled to rely on evidence of lay people in decid- ing issue of impairment Crown appealed accused's ac- quittal for driving while im- paired by drug. Trial judge found that Drug Recognition Experts (DREs) could not give expert evidence and that their opinion evidence was inadmis- sible. Trial judge found that lay opinion evidence could not be admitted because "effect of drug on individual's ability to operate motor vehicle was not in ordinary experience of lay people". Crown argued that trial judge erred in finding inadmis- sible both expert opinion and lay opinion. Crown argued that DRE was presumptively, by op- eration of legislation, satisfying Mohan criteria, and therefore, no requirement to qualify DRE was necessary. Appeal allowed, new trial ordered. Police offi- cer without qualification may give lay opinion with respect to condition of accused, notwith- standing that there was no spe- cific appellate directive to do so under s. 254 of Criminal Code. Trial judge was entitled to rely on evidence of lay people in deciding issue of impairment. Trial judge erred in finding that lay opinion evidence in drug impaired driving case was in- admissible. Only way trial judge could have considered total- ity of evidence demonstrating whether or not accused was im- paired by use of marijuana was to consider all of evidence pre- sented by both lay and expert witnesses concerning accused's impairment. If Parliament had intended to require positive re- sult for test of bodily f luids con- taining THC, then positive test result would have been man- datory element of offence, but it was not. Toxicology report was piece of evidence prop- erly to be considered amongst all other factors to determine impairment of accused. Given that there had been no success- ful challenge on scientific reli- ability of regulated tests, court was bound by decision in R. v. Bingley. Officers' experience, training, and certification as DREs should have satisfied fourth Mohan criteria and their evidence should have been ad- mitted. Weight to be given to opinion evidence of DREs was question of discretion by trier of fact and was separate issue. Trial judge erred when he did not consider toxicology report, or opinions of DREs. Had judge considered all available and admissible evidence, final deci- sion may have been different. R. v. Oum (Sep. 5, 2014, Ont. S.C.J., J.N. Morissette J., File No. 796) 115 W.C.B. (2d) 474. Weapons USE OF FIREARM IN CARELESS MANNER Error concluding firing shot in rural environment marked depar- ture from reasonable conduct Accused appealed decision which upheld his conviction for careless use of firearm. Trial judge found that accused led wandering dog to another prop- erty across road, and fired gun to scare it. Trial judge made no findings as to manner in which rif le was fired, as he concluded that witnesses who heard shot did not see gun fired. Trial judge concluded that location of shot, beside road and in close proximity to neighbouring in- habited properties, was inher- ently dangerous, particularly given that purpose of shot was to scare dog. Summary convic- tion appeal judge held that there was no doubt that discharge of gun jeopardized safety of any- one in area, and fact that inci- dent occurred in rural area did not of itself alleviate accused's responsibility to use of due care and attention. Summary con- viction appeal judge held that inferences drawn by trial judge were reasonable. Accused ar- gued that facts as found by trial judge were incapable of reason- ably supporting inference that his use of rif le was necessar- ily careless. Appeal allowed, conviction set aside, new trial ordered. Trial judge and sum- mary conviction judge both erred in concluding that fir- ing shot in rural environment, whatever manner in which shot was fired, necessarily amounted to marked departure from con- duct of reasonable person. Ab- sent any finding as to manner in which rif le was used or tra- jectory of projectile, there may have been any number of ways in which shot could have been fired which might have posed no risk to others. Conviction could not be sustained. This was not situation like shooting in shopping mall, which would have been inherently danger- ous. R. v. Batty (Sep. 5, 2014, Ont. C.A., Robert J. Sharpe J.A., Ja- net Simmons J.A., and G. Pardu J.A., File No. CA C58218) 115 W.C.B. (2d) 538. LT CASELAW

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