Law Times

Law Times • January 19, 2015 Page 15 www.lawtimesnews.com unsupervised access by father to children for longer periods. Fa- ther therefore agreed to adjourn trial of his access application to January 2015. By August 2014, mother had not registered with online site, failed to meet with assessor and had not permitted access by father since April. Fa- ther applied for order that moth- er was in contempt of parenting plan, access to children and ap- pointment of new therapeutic counsellor. Application allowed. Mother had engaged in pattern of conduct calculated to under- mine father's efforts to repair his relationship with children and reintegrate into their lives. She refused to allow children to see father and put them in middle of her conf lict with father. Her failure to register with online site and respond to therapeutic counsellor was breach of par- enting plan, as was her failure to pay half of counsellor's fees. It was ordered that father have ac- cess to children every Saturday from 10:00 a.m. to 6:00 p.m. and every Tuesday from 5:30 p.m. to 7:30 p.m.. Mother was to pay her share of fees for therapeutic therapist. New re-unification therapist was appointed with parties sharing costs equally. Mother was to immediately reg- ister with online site. Valettas v. Chrissanthakopou- los (Oct. 14, 2014, Ont. S.C.J., Price J., File No. Brampton FS- 09-67717-00) 245 A.C.W.S. (3d) 620. DOMESTIC CONTRACTS Announcing refusal to marry until spouse signed contract was form of pressure Parties signed marriage contract that provided that neither party would claim spousal support, rights of ownership would gov- ern property division. Husband said he would not marry wife un- less she signed marriage contract. Under agreement no property owned by either party was to be included in net family property. Each party was to be entitled to half interest of fair market val- ue of family residence payable within 60 days. Agreement also provided for release of any busi- ness interest. Wife's net worth at time of contract was nil. Wife remained in matrimonial home with parties' four children. Wife stayed home to care for children for 11 years. Husband controlled cash f low during marriage. Wife sought to set aside marriage contract. Marriage contract as to spousal support was not re- f lective of original intention of parties given subsequent birth of four children and husband's agreement that wife stay home with children. Announcing refusal to marry until future spouse signed contract was form of pressure. Zigiris v. Foustanellas (Sep. 25, 2014, Ont. S.C.J., Kane J., File No. FC-14-511) 245 A.C.W.S. (3d) 622. Limitations DISCOVERABILITY Motion judge erred in failing to base decision on evidence on motion Appeal by plaintiff from order granting summary judgment and dismissing her action for damages following injuries sus- tained in motor vehicle accident. Defendant had asserted that action had been commenced more than two years after ac- cident, and was statute-barred under Limitations Act, 2002 (Ont.). Plaintiff claimed that, while accident in which she had been injured took place on Aug. 17, 2009, she had only become aware of severity of her injuries on Sept. 21, 2009, after x-ray of her cervical and lumbar spine. She issued statement of claim on Sept. 9, 2011. Motion judge granted summary judgment dismissing claim because plain- tiff had not pleaded discover- ability facts in her claim. Appeal allowed. Motion judge erred in failing to base his decision on evidence on motion and instead relying upon failure of plaintiff to plead discoverability facts in her statement of claim. Evidence of plaintiff on summary judg- ment motion, which was un- contradicted, revealed that issue of discoverability existed. Once defendant provided defence, plaintiff could set out material facts relied upon on issue of dis- coverability in her reply. Collins v. Cortez (Oct. 7, 2014, Ont. C.A., K.M. Weiler J.A., John Laskin J.A., and K. van Rensburg J.A., File No. CA C58279) 245 A.C.W.S. (3d) 684. Failure to use word 'discoverability' was immaterial Surgeon removed abscess from patient's armpit in December 2007. Unknown to patient, sur- geon also removed some lymph nodes to check for cancer, which was not present. Patient devel- oped lymphedema, which was permanent disabling condition. Patient saw specialists for symp- toms of lymphedema in 2008 and 2009 but no one explained it to her until personal physi- cian did in February 2010. Per- sonal physician indicated lymph nodes should not have been re- moved. Patient commenced ac- tion against surgeon and hospi- tal in September 2011 for dam- ages for medical negligence. Surgeon and hospital brought motion for summary judgment dismissing action as statute- barred. Motion dismissed. Patient's action was brought within applicable two-year limi- tation period. Patient had prop- erly pleaded discoverability in statement of claim. Failure to use word "discoverability" was immaterial. Patient had not ac- tually known or ought to have known material facts ground- ing claim in negligence when she last saw surgeon in Novem- ber 2008. Patient's claim was first discovered and first discov- erable in February 2010 when personal physician informed patient of surgeon's error. Un- til February 2010, patient had not known that something was wrong, why it was wrong, and who was responsible. Patient had not failed to act diligently. Oakley v. Guirguis (Aug. 28, 2014, Ont. S.C.J., DiTomaso J., File No. Barrie CV-11-0832) 245 A.C.W.S. (3d) 685. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officers knowingly arrested accused based solely on suspicious circumstances Accused charged with posses- sion of narcotics for purpose of trafficking. Accused applied to exclude evidence based on breaches of ss. 8 and 9 Charter rights. First officer testified that they saw two men walking in suspicious manner. First officer testified that they approached vehicle and he saw male kneel- ing down beside open car door with cash in his hand, and ac- cused standing beside him. First officer testified that as soon as cruiser stopped, second officer instantly jumped out and yelled out to men that they were under arrest. First officer testified that after pat-down search, he found series of nar- cotics in accused's bag. Second officer testified that they were driving by vehicle when they saw three men by driver's door in close proximity. Second of- ficer testified that he became suspicious that drug deal was underway, so they turned cruis- er around and drove up behind vehicle. Second officer testified that he immediately got out of his car and placed all three men under arrest. Second of- ficer testified that in one to two seconds after they pulled up beside vehicle, before he placed men under arrest, he saw man sitting in car with $50 dollar bill, pill bottle, and baggie with drugs in his hands, another man kneeling down beside car in front of black scale, holding $50 dollar bill in his hand, and accused standing nearby, hold- ing backpack. Accused testified that his friend was supposed to be driving him home, but told him that he had to stop off on way to drop off tools for his friend. Accused testified that as they approached vehicle, his friend handed bag to him, then bent down to tie his shoe, and suddenly two police officers were upon them and they were arrested. Accused testified that there was no scale present, that no money changed hands, and that bag containing drugs that he was left holding belonged to his friend, even though his two cell phones were found inside. Application allowed, evidence excluded. Accused's evidence was not credible. Accused was at scene to participate in drug transaction, which substan- tially undermined his credibil- ity. Officers' observations were highly unreliable. Officers gave highly inconsistent accounts about where and how they were alerted to event. Money officers claimed to have seen had dis- appeared. Even if scale was on ground outside vehicle, it was very unlikely that officer had been able to observe it in two seconds that elapsed between when cruiser pulled up beside vehicle and when arrest was effected. Given that three men were huddled within few feet of each other, it was implausible that in very brief timeframe officer had managed to view man several feet away holding pill bottle and bag with drugs. Evidence gaps were significant and troubling and went well beyond normal discrepan- cies one expected to find. Of- ficers operated essentially on hunch. Instead of setting up post nearby and watching for grounds, officer charged in pre- maturely. Police did not have, on any objective basis, reason- able and probable grounds to arrest accused. Accused's ar- rest was unlawful and search incidental to arrest violated s. 8 of Charter. Officers knowingly arrested accused based solely on suspicious circumstances, and their handling of evidence was remarkably sloppy. Breach was serious. Impact of breach on accused's Charter-protected rights supported exclusion of evidence. Given that accused was grabbed, pushed against ve- hicle, searched, and handcuffed in highly public area, this was significant intrusion on his Charter rights. Drugs that were seized were reliable and objec- tive evidence, which favoured their admission. Given serious nature of breach and its impact on accused's protected Charter rights, admission of evidence would have brought adminis- tration of justice into disrepute. R. v. Palmer (Oct. 7, 2014, Ont. S.C.J., Baltman J., File No. CRIMJ(F)2329/12) 116 W.C.B. (2d) 349. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Defied logic that accused would have left contraband in fridge Accused charged with posses- sion of cocaine for purpose of trafficking. Accused signed tenancy agreement for apart- ment unit as sole occupant. For two weeks following signing of agreement, repairs were made to unit. Number of workers had access to unit, and landlord was not present during entirety of time that workers were inside unit. When landlord entered apartment with worker who was going to repair fridge, he found empty BlackBerry box located on shelf in freezer and 75 dime bags of cocaine inside. Accused testified that she did rent apart- ment and that she had moved certain personal items into it on day of discovery. Accused denied that she had any knowl- edge or control over cocaine located in freezer. Accused ac- quitted. Accused's evidence was not rejected and left court with reasonable doubt. Accused did not hesitate in response to ques- tions and was logical in her ex- planation of sequence of events. There were no inconsistencies in accused's evidence and no meaningful contradictions with other evidence. Whether or not accused stayed overnight in unit was of no moment, as she had plenty of opportunity to store cocaine in freezer if she was inclined to do so. There was no evidence that groceries had been purchased and placed in freezer portion of fridge to dem- onstrate that accused had ac- cessed it. It was not unusual that accused testified that she did not open freezer to determine if it was working, as she was in process of moving in to unit. Accused's denial that she had ei- ther knowledge or control over contents of BlackBerry box was consistent with her conduct. It defied logic that accused would have left contraband, all on its own, in fridge knowing that it would have been observed by appliance repair person who was attending to seal it. Ac- cused did not hesitate in turn- ing over her key to landlord, and there was no attempt to return to unit to remove contraband from freezer, as one might have expected if accused knew it was there. Found during search were four BlackBerry boxes and two BlackBerry phones, but no other evidence that would have led to inference that accused was in- volved in drug trafficking was found. There were number of people who had access to unit from date that accused agreed to rent unit to date of discovery of cocaine. While it was true that accused was often in unit where cocaine was found, there was no evidence that she knew that she had it in her physical possession. R. v. Mitchell (Oct. 1, 2014, Ont. S.C.J., Kelly J., File No. CR/13/90000/6410000) 116 W.C.B. (2d) 378. Motor Vehicles FAILURE TO REMAIN AT SCENE OF ACCIDENT Evident accused feared police investigation due to being suspended driver Accused was charged with leav- ing scene of accident without leaving particulars. Accused had struck cyclist with his truck and told witness that he believed cyclist was drunk as he came out of nowhere. Accused claimed he had to leave and get water and blankets as injured party was in shock even though no one asked him to go. Witness was caring for victim and accused, who was suspended driver, never told witness his name nor provided identification. Accused found guilty. Court did not believe tes- timony of accused and conclud- ed it was evident that accused feared police investigation due to his status of being suspended driver. R. v. Sanford (May. 23, 2014, Ont. S.C.J., Hill J., File No. CRIMNJ 556/13) 116 W.C.B. (2d) 395. LT CASELAW

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