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Page 14 January 12, 2015 • Law Times www.lawtimesnews.com suant to agreement. Parties were unable to reach agreement regarding another municipal property. Tenant alleged land- lord breached agreement. Par- ties proceeded to arbitration, and arbitrator found in tenant's favour. Landlord brought mo- tion for leave to appeal. Mo- tion granted. Three grounds for appeal put forth by landlord raised extricable legal errors in interpretation of settlement agreement. As such, these were questions of law as required by s. 45(1) of Arbitration Act, 1991 (Ont.), and not questions of mixed fact and law. All alleged errors were potentially decisive to outcome of arbitration. There was also arguable merit to posi- tion taken by landlord that ar- bitrator's decision was at least unreasonable. Ottawa (City) v. Coliseum Inc. (Sep. 9, 2014, Ont. S.C.J., J. Mackinnon J., File No. 14- 60108) 245 A.C.W.S. (3d) 268. Civil Procedure SUMMONS TO WITNESS Summonses to opposing parties' counsel to be avoided wherever possible This was ongoing estate liti- gation, in which parties had reached settlement provid- ing for appointment of trustee during litigation and court- approved sale of property, and consent order was made on that basis. One respondent subse- quently brought motion to set aside consent order on basis of duress. Respondent issues sum- monses to trustee and opposing parties' counsel to testify against their clients at duress motion. Motion by several parties for order quashing summonses. Motion granted. Summonses to opposing parties' counsel were to be avoided wherever pos- sible. Proposed examinations amounted to fishing expedi- tions and were not necessary as respondent and his counsel had already given evidence before court and there was transcript and audio recording available. Result of summonses would be that parties would have to ob- tain new counsel, which would add further delay and expense. Opara v. Opara (Sep. 26, 2014, Ont. S.C.J., L.A. Pattillo J., File No. 01-2289/12, 01-2338/12, CV- 13-489717) 245 A.C.W.S. (3d) 319. Contracts MISTAKE Mother had not believed she was signing document that transferred home property to son Mother and father expanded their home property in 2004 by purchasing adjacent property. Son lived in basement of home after completing his educa- tion. Father and son enlarged workshop on expanded home property in 2005 so both father and son could use it. Parents in- tended to give workshop to son someday. Father died in 2006. Son took advantage of mother's poor English and had her trans- fer expanded home property to him. Son subsequently trans- ferred expanded home property to himself and mother as joint tenants. Mother brought action against son for order setting aside transfers and restoring her sole ownership of expanded home property. Action allowed. Both non est factum and mistake applied to circumstances of this case. Mother had thought she was signing document akin to power of attorney to allow son to look after her in her old age. Mother had not believed she was signing document that trans- ferred expanded home property to son. Mother had made it clear throughout her life that she in- tended to treat her children equally upon her death. Even son had not understood nature of document he signed. Son's ev- idence was that he only intended to take title to adjacent prop- erty that was acquired in 2004 and not entire expanded home property. Since first transfer was of no effect, son could not affect second transfer. Servello v. Servello (Sep. 2, 2014, Ont. S.C.J., E.J. Koke J., File No. CV-09-4778) 245 A.C.W.S. (3d) 330. Family Law CUSTODY Supervision order not punishment but safe course for child to pursue relationship Mother and father had child in 2002. Parties separated in 2011 after mother found child por- nography on family camera and computer and contacted police. Father was convicted of sexual exploitation and child pornog- raphy offences. Father served 18-month jail sentence and was on strict probation. Father ex- ercised supervised access and it had gone well for more than year. Mother brought applica- tion for custody of child. Father brought cross-application for unsupervised access. Applica- tion granted; cross-application dismissed on terms. Mother was granted sole custody and father was granted supervised access. Best interests of child required long-term supervised access. Child's views were given little weight due to potential for father to inf luence child. Father minimized impact of his behav- iour on his own child. Father needed strict boundaries. Fa- ther's own expert evidence con- firmed father faced long-term struggle. Risks addressed by supervision were not expected to diminish. Supervision order was not punishment but rather safe course for child to pursue healthy relationship with father. Mother had to be given suffi- cient tools to provide guidance, set boundaries, and continue to make good decisions. Father's failure to provide full, ongoing disclosure would limit his access to child. Tuttle v. Tuttle (Aug. 28, 2014, Ont. S.C.J., Robertson J., File No. 0097/11) 245 A.C.W.S. (3d) 360. TAX COURT OF CANADA Corporations DIRECTORS Investor was shareholder only and not de facto director Investor was shareholder of tax- payer company that operated pub. Investor signed some doc- uments that indicated he was director of company. Investor signed disclaimer letter to Can- ada Revenue to unfreeze com- pany's bank account, after min- ister issued requirement to pay in respect of unremitted source and GST deductions. Company ceased operations. Minister as- sessed investor as director for company's unremitted deduc- tions. Investor appealed. Appeal allowed. Investor did not know he could be considered director and did not execute proper doc- umentation to become director. Proper steps were not taken by company to appoint investor and so under Business Corpo- rations Act (N.B.), investor was not de jure director. Facts estab- lished that investor was share- holder only and not de facto director. All major decisions relating to business were made by other persons. Investor was co-signer for business cheques only because two signatures were required and obtained loan to keep company af loat be- cause he was told that otherwise shareholders would lose their investments. Investor signed letter to CRA as owner without even reviewing it. Investor did not even know where account books were located or how to turn lights on when he sought new management. Investor was naive individual whose conduct only demonstrated that he was trying to protect his investment. Investor relied entirely upon preparers of documents that he signed who did not explain na- ture of documents or financial situation of company. MacDonald v. R. (Oct. 20, 2014, T.C.C. [Informal Procedure], Eugene P. Rossiter A.C.J., File No. 2013-2568(IT)I, 2013- 2569(GST)I) 245 A.C.W.S. (3d) 332. ONTARIO CRIMINAL DECISIONS Appeal CROWN APPEAL Under common law exemplifications admissible without formal notice to accused Appeal by Crown from acquit- tal of accused on one charge of wilfully obstructing peace of- ficer in execution of his duty and on two charges of failing to comply with recognizance. Police stopped vehicle in early morning hours of Feb. 25, 2013. Vehicle contained five males and when accused was asked for his identification because of his seatbelt infraction he orally provided police with false name. Crown claimed that accused lied to police because he was bound by two recognizances that required him to be within confines of his residence at that time of night. Police soon dis- covered his true identity and ex- istence of recognizances. Crown provided package of documents to establish accused's guilt on failure to comply charges. These documents were certified by lo- cal registrar of Superior Court of Justice and they displayed court's red seal and they were known as exemplifications. Accused was acquitted of two failures to comply charges after judge ruled that documentary evidence tendered by Crown was inadmissible because Crown was alleged to have not met statutory requirement for notice pursuant to s. 28 of Canada Evidence Act. Accused successfully applied for directed verdict of acquittal for obstruc- tion charge because trial judge concluded that there was no evidence that name that accused provided to police was false name. Appeal allowed. New trial was ordered before differ- ent trial judge. Under common law exemplifications were ad- missible without formal notice to accused and judge erred in law by requiring notice. This conclusion required new trial to be ordered for both failures to comply charges. Regarding obstruction charge judge erred when he concluded that there was no evidence that name that accused provided police was false. There was evidence upon which reasonable jury, properly instructed, could return guilty verdict for this charge and new trial was also required for this offence. R. v. Bailey (Sep. 23, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 106/13) 116 W.C.B. (2d) 218. SENTENCE APPEAL Open to trial judge to conclude purpose of sentencing could only be served by life sentence Accused appealed his sentence of life imprisonment imposed upon his conviction for criminal negligence causing death. Ac- cused was 43-year-old man with extensive criminal record span- ning 24 years. Accused com- menced crime spree by stealing vehicle while subject to lifetime driving prohibition. Accused became involved in high speed police pursuit late at night dur- ing which he drove down wrong side of road and collided with another vehicle. Driver of that vehicle died and five other occu- pants were injured resulting in, amongst other charges, criminal negligence causing death and five counts of criminal negli- gence causing bodily harm. Ap- peal dismissed. Clearly sentence went beyond range of sentences established by appellate courts for this kind of offence. Trial judge was aware of range and only departed from it after giv- ing careful consideration to ex- traordinary nature of this case, both as it related to serious and tragic circumstances and con- sequences of offence and ap- palling facts as they relate to ac- cused's criminal and dangerous conduct throughout his adult life. Parity principle was only one of several principles which must be taken into account in fixing appropriate sentence which best served fundamental purpose of sentencing. It was open to trial judge to conclude that in egregious circumstances of this case that fundamental purpose could be served only by imposition of life sentence. It must be left to Parole Board to determine if, when, and on what terms accused should be al- lowed to return to community. R. v. Smith (Sep. 26, 2014, Ont. C.A., Doherty J.A., Pepall J.A., and Tulloch J.A., File No. CA C56234) Decision at 102 W.C.B. (2d) 516 was affirmed. 116 W.C.B. (2d) 223. Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Reasoning of judge flawed based on misapprehension of evidence and application of findings Crown appealed accused's ac- quittal for driving over 80. Ar- resting officer noted accused's vehicle at 3:15 a.m. and observed vehicle tailgating another car, cutting in front of another ve- hicle quickly, and speeding. Ve- hicle was paced at 75 kilometres in 60-kilometre zone. Officer followed car with intent to stop driver for speeding. Accused had thrown cigarette butt out of her car which bounced off cruiser's hood. Officer activated his lights and siren. Driver com- plied and pulled her vehicle over to curb lane almost immediate- ly. Officer smelt alcohol coming from accused's mouth, which he described as "strong odour." Officer asked accused if she had been drinking, to which she re- plied she had one or two drinks. Officer never asked accused when she had had her last drink. Officer stated that from time he stopped vehicle to time of test was less than 15 minutes, but time from observation to time of test was over 15 minutes. Of- ficer agreed that knowing that manual for Alcotest device sug- gested 15-minute wait it would have been better to ask about time of last drink. Officer said he did not believe he had any reason to believe that accused had drink in 15 minutes prior to officer seeing her and that there was no visible alcohol in car, ei- ther opened or unopened. Ap- peal allowed; acquittal set aside; verdict of guilty entered. Court found that reasoning of judge was f lawed based on his misap- prehension of evidence and ap- plication of his findings to law. Facts as found by trial judge were not reasonably support- able by evidence and trial judge fell into palpable and overriding error. Conclusion that officer believed that there was need to delay administration of test, on evidence, was not reasonably CASELAW

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