Law Times

Law Times • December 1, 2014 Page 15 www.lawtimesnews.com of material required for proj- ect. Part of watermain system called for use of type K 2 inch copper tubing. Supplier or- dered that product from defen- dant manufacturer and copper tubing was delivered to project site and installed by plaintiff. Copper tubing failed to pass sterilization test required by city. Plaintiff brought action in contract against supplier and in tort against manufacturer for damages arising from failure of copper tubing. Action al- lowed. Plaintiff relied on skill or judgment of supplier as re- quired under s. 15(1) of Sale of Goods Act (Ont.). Merchant- ability requirements of s. 15(2) of Act also applied. Copper tubing could not pass steriliza- tion test and it was defective. No fault could be attributed to plaintiff in installation. Defect in material existed when it was delivered and s. 15(2) of Act was breached. Provisions of Act were not excluded by virtue of limited warranty. Supplier was liable to plaintiff pursuant to s. 15(1) and (2) of Act. Manufac- turer conceded it owed duty of care to plaintiff. Copper tubing on its own was not dangerous product but it became danger- ous with contact with chlorine. Manufacturer had sufficient knowledge to be aware of po- tential risk. Manufacturer had due diligence obligation to en- sure that its product met appli- cable regulatory and municipal standards. Manufacturer had duty to warn. Manufacturer did not meet standard of care. Manufacturer was liable to plaintiff. Plaintiff was granted judgment of $64,025 against defendants on joint and several basis. Supplier was granted de- claratory relief against manu- facturer regarding entitlement to contribution and indemnity. Brantford Engineering and Con- struction Ltd. v. Underground Specialties Cambridge Inc. (Aug. 21, 2014, Ont. S.C.J., D.J. Gor- don J., File No. CV-09-290). Torts NEGLIGENCE Improper conduct not sufficiently serious to undermine fairness of trial Plaintiff was passenger in pickup truck that entered in- tersection on red light and was hit by transport truck going through intersection on green light. Plaintiff brought neg- ligence action for injuries he sustained. Jury found pickup truck driver 95 per cent li- able for accident and transport truck driver five per cent liable for accident. Transport truck driver and owners of truck appealed. Appeal dismissed. There was evidence from which jury could infer that reason- ably prudent driver should have been aware of hazard posed by pickup truck. Fact that jury provided more extensive detail regarding negligence of pickup truck driver did not mean that inference could be drawn that jury was confused. There was improper questioning of trans- port truck driver but improper conduct was not sufficiently serious to undermine fairness of trial or put validity of verdict into real doubt. Sant (Litigation guardian of ) v. Sekhon (Sep. 2, 2014, Ont. C.A., K.M. Weiler J.A., John Laskin J.A., and K. van Rens- burg J.A., File No. CA C57233) 244 A.C.W.S. (3d) 991. ONTARIO CRIMINAL DECISIONS Breathalyzer PRESUMPTION Expert evidence highlighted importance of accuracy and reliability Accused appealed her convic- tion for driving "over 80". Ac- cused submitted that trial judge erred in holding that expert evidence concerning concen- tration of alcohol in her blood at time of driving, which was based on her testimony as to her pattern of drinking, could not raise reasonable doubt about her guilt because projected blood alcohol levels "straddled" 80 milligrams of alcohol in 100 millilitres of blood threshold. Trial judge relied on decision of the Supreme Court of Canada in R. v. Gibson for this propo- sition. However, in subsequent case of R. c. Ibanescu which was decided after trial judge delivered her judgment, court clarified that such "straddle" evidence is capable of raising reasonable doubt. Crown called toxicologist to provide expert evidence about what accused's blood alcohol level would have been at time of driving. Toxi- cologist was also questioned about accused's blood alcohol concentration ("BAC") based on various scenarios about time of the accused's drinking and time of driving, based on as- sumption that she consumed two pints of five per cent alco- hol beer. This resulted in "strad- dle" evidence at issue. Accused testified that she only had two beers before she left bar and man she had been at bar with gave testimony that was vague but somewhat corroboratory. Based on drinking scenarios corresponding to accused's evi- dence that she consumed two beers, toxicologist testified if drinking began at 7:00 p.m. ac- cused's BAC would have been between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If time of driving was 4:00 a.m. two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres. Appeal dismissed. Trial judge rejected accused's evidence of consumption and court found no error in do- ing so. Toxicologist's evidence showed that if accused had even substantial portion of one other beer she would have been over legal limit on any reasonable scenario. Trial judge was not entitled to take that evidence into account in assessing ac- cused's credibility in relation to whether breath test results were accurate and she did not do so. However, that evidence demon- strated how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability. Court saw nothing in criticized portion of trial judge's reasons that fell outside parameters of such accepted means of assess- ing evidence. Expert evidence highlighted importance of ac- curacy and reliability with re- spect to amount of alcohol con- sumed. R. v. Denduk (Aug. 7, 2014, Ont. S.C.J., F. Dawson J., File No. SCA(P) 380/13) Decision at 107 W.C.B. (2d) 457 was affirmed. 116 W.C.B. (2d) 62. Charter of Rights TRIAL WITHIN REASONABLE TIME Error to hold inferred prejudice 'not significant' eight months beyond guidelines Trial judge dismissing accused's application to stay charges re- lated to historical sexual as- sault for unreasonable delay. Preliminary hearing not con- cluding until 17 months after arrest due to cancellations aris- ing from missteps in Crown's office. Defence being available for dates offered for resched- uled preliminary hearing. Trial scheduled to be held 14 months later due to institutional delay. Trial judge finding 26 months of overall delay attributable to Crown or institution. Accused asserting actual prejudice arose from loss of employment and media scrutiny. Trial judge finding no actual prejudice as stress and loss of employment f lowed from charges them- selves. Trial judge finding in- ferred prejudice not significant. Appeal allowed and new trial ordered. Trial judge erred in refusing to grant stay although findings on actual prejudice and attribution of delay largely correct. Where delay was eight months beyond guidelines was error to hold inferred prejudice "not significant". Crown and institution did nothing to give serious case priority when s. 11(b) Charter application im- minent. Society's interests lay with vindicating Charter right of accused notwithstanding very serious offences. R. v. Williamson (Aug. 19, 2014, Ont. C.A., M. Rosenberg J.A., J.C. MacPherson J.A., and P. Lauwers J.A., File No. CA C55167) 116 W.C.B. (2d) 25. Contempt of Court APPEAL Accused clearly understood obligations imposed upon them by endorsement Condominium corporation and directors appealed find- ing of contempt against them. As result of having to perform extensive garage repairs, land- scaping outside condominium complex required restoration. Board of directors of condo- minium corporation proposed new landscaping design with features different than design in place prior to garage repairs. Several condominium owners opposed suggested new design and wanted area restored to way it was before garage was repaired and dispute arose. Dispute led to litigation and court order that landscaping be restored to its original de- sign. In defiance of order, direc- tors authorized installation of landscaping containing some elements of previous design and some elements of design they had selected. As result of violation of court order, condo- minium corporation and direc- tors were found in contempt of court. Motion judge rejected accused individuals' arguments that restoring podium to origi- nal design was impossible and/ or ill-advised and accepted evidence of respondents' (con- dominium owners) experts, which was not contradicted by any other expert evidence. Ap- peal dismissed. Only reason- able interpretation of provision in issue that accused reinstate courtyard as it existed after repairs to garage was that ac- cused were required to restore podium landscaping, both hard and soft, to its state prior to ga- rage repairs. To suggest that en- dorsement might reasonably be interpreted as limiting accused individuals' restoration obliga- tions to certain limited part of exterior of complex (courtyard) and to certain type of land- scaping was not supported by record and not logical. Until ac- cused were advised that respon- dents were bringing motion for contempt, accused conducted themselves as though they had no difficulty understanding endorsement. Accused did not seek clarification of decision neither during subsequent costs hearing nor at any other time, despite motion judge's explicit offer that parties could return to him in event they had any questions. When challenged about their deviations from original design, accused indi- viduals' initial response was not to express confusion over what endorsement required of them but to attempt to justify changes they had authorized. In refusing to approve draft order arising from Endorse- ment, accused did not take po- sition that decision was unclear. Rather, they took position that it was not possible to reinstate landscape to its appearance prior to garage repairs. Accused clearly understood obligations imposed on them by endorse- ment to restore entire exterior, including both hard and soft landscaping, to original design. There was dissenting opinion. Boily v. Carleton Condominium Corp. 145 (Aug. 6, 2014, Ont. C.A., Gloria Epstein J.A., P. Lauwers J.A., and G. Pardu J.A., File No. CA C56885) 116 W.C.B. (2d) 26. Evidence ADMISSSIBILIT Y Objection to evidence should be taken prior to evidence being presented Two accused were charged with first degree murder and both were found with blood of vic- tim on their clothing. One ac- cused sought directed verdict and also exclusion of eyeglasses of victim found in his garage. Accused did not object to ad- mission of eyeglasses when introduced into evidence but argued they should be excluded alleging officer lied as he ini- tially testified that victim was wearing his eyeglasses when he found him on side of road with multiple stab wounds. Applica- tion dismissed. Admission of eyeglasses at trial did not im- pact on jury's ability to assess reliability and credibility of of- ficer's testimony or accused's right to fair trial. Accused was free to suggest to jury that offi- cer's explanation for contradic- tion should be rejected and was complete fabrication. Court also noted that unless there were exceptional circumstanc- es, objection to evidence should be taken prior to or at time evi- dence was presented, not after it has been admitted. R. v. Nurse (Sep. 17, 2014, Ont. S.C.J., Coroza J., File No. CRIMJ(P) 339/13) 116 W.C.B. (2d) 36. Proceeds of Crime FORFEITURE Rigid rule of total forfeiture should not be followed Crown sought estreatment of $100,000 against sureties who were cousins of accused's fa- ther. Accused, originally from Bulgaria, was charged with 55 fraud related counts including being part of criminal orga- nization. Accused abided by strict house arrest conditions but absconded and did not appear for his preliminary in- quiry. Crown focused solely on forfeiture effect on accused in application. Sureties had notified police immediately when accused broke house arrest rules, there was no evi- dence they k new it would ab- scond and tried to assist police in finding him. Application granted against accused only. Court did not accept rigid ap- proach adopted by Crown as it did not focus on all relevant factors such as due diligence exercised by sureties. Rigid rule of total forfeiture should not be followed and was incon- sistent with s. 771(2) of Criminal Code and contrary to constitu- tional principles of bail system. Granting relief to sureties in this case did not undermine effec- tiveness of bail system. R. v. Panov (Jun. 25, 2014, Ont. S.C.J., B. Shaughnessy J., File No. Oshawa 2504/13) 116 W.C.B. (2d) 72. LT CASELAW

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