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Page 18 aPril 27, 2015 • Law Times www.lawtimesnews.com misrepresentation. Court could not adjudicate defence of bad faith, non-disclosure and mate- rial misrepresentation without information pertaining to how church hierarchy was directed and instructed to handle claims by Canon Law of Roman Cath- olic Church. Bishop was in best position to answer questions of Canon Law and practices and procedures. Plaintiff was to produce Bishop for examina- tion for discovery. All questions refused by Monsignor on exam- ination for discovery pertaining to Canon Law, church practices and policies and operation and oversight of plaintiff Diocese were proper and relevant ques- tions that can be put to Bishop. Roman Catholic Episcopal Corp. for the Diocese of Sault Ste. Ma- rie v. AXA Insurance (Canada) (Feb. 10, 2015, Ont. S.C.J., E. Gareau J., File No. 4492-08) 250 A.C.W.S. (3d) 407. Limitations INSURANCE Submission of new applica- tion for benefits following clear refusal by insurer did not restart limitation clock Plaintiff was injured in motor vehicle accident in 2002. Plain- tiff was insured under motor vehicle liability policy with de- fendant. Plaintiff elected to re- ceive caregiver benefits. Plain- tiff was advised in 2004 that she no longer met disability test to receive caregiver benefits. In May 2007, plaintiff brought ac- tion to recover caregiver ben- efits under s. 13 of Statutory Ac- cident Benefits Schedule - Ac- cidents on or After Nov. 1, 1996 (Ont.). Trial judge found that claim was statute-barred. Trial judge concluded that plaintiff had not established her entitle- ment to caregiver benefits be- yond 104-week eligibility pe- riod. Trial judge also dismissed claim for damages for breach of contractual duty of good faith, aggravated damages and men- tal distress. Plaintiff appealed. Appeal dismissed. Limitation period under Insurance Act (Ont.), in respect of statutory accident benefits only began to run upon insurer giving proper refusal of benefits claimed. Trial judge did not err in holding that Jan. 31, 2004 was date of defen- dant's refusal to pay caregiver benefits. Defendant's decision to pay caregiver benefits at March 2005 mediation was er- ror. Even if mistaken agreement to pay benefits restarted clock, agreement was followed two days later by clear repetition of defendant's original position that benefits ended on Jan. 31, 2005. Plaintiff issued statement of claim more than two years after defendant's repeated com- munication of its refusal to pay benefits and action remained statute-barred. Submission of new application for benefits following clear refusal by in- surer did not restart limitation clock. Trial judge made no error in concluding that action was statute-barred. Blake v. Dominion of Canada General Insurance Co. (Mar. 13, 2015, Ont. C.A., K.M. Weiler J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C57821) Decision at 233 A.C.W.S. (3d) 232 was affirmed. 250 A.C.W.S. (3d) 491. Municipal Law TAXATION Sub-tenant responsible for all realty taxes appli- cable to subject property R, as sub-tenant, entered into sublease with township, as sub- landlord, for premises in mari- na from which he operated res- taurant. Township gave R notice that unless he paid certain ar- rears due under sublease, which included realty tax arrears, by certain date, it would terminate sublease and sue for arrears. R vacated premises and township sued to collect arrears. Town- ship was awarded judgment of $35,176.41, which included amount for realty tax arrears fixed at $18,060.42. R appealed. Appeal dismissed. Sublease made R responsible for all realty taxes applicable to subject prop- erty, which covered all realty taxes that arose during term of sublease and township could retroactively collect realty taxes for premises. There was no au- thority to support R's position that township could not collect realty taxes from him by suing for tax arrears under sublease but was limited to realty tax re- covery mechanisms available to municipality under Municipal Act, 2001 (Ont.). Township was not estopped from collecting realty taxes under sublease by operation of doctrine of laches. Township was not responsible for delay. R did not act to his detriment as result of any con- duct by township in respect of treatment of realty taxes under sublease. Trial judge did not err in interpreting sublease. St. Joseph (Township) v. Rowe (Feb. 25, 2015, Ont. C.A., K.M. Weiler J.A., Gloria Epstein J.A., and David Brown J.A., File No. CA C58251) 250 A.C.W.S. (3d) 501. Police LIABILIT Y IN TORT Defendants had nothing to do with ultimate decision to charge plaintiff Plaintiff was police officer who acted as Registrar/Administra- tor of defendant police service's sex offender registry. Defendant police officers interacted with plaintiff as her supervisors or superior officers. Plaintiff was removed from her position for not doing her job properly, in- cluding by recording false in- formation. Plaintiff was tried on 11 counts of breach of trust by public officer. Plaintiff 's short- comings were established but she was ultimately acquitted. Plaintiff commenced action against defendants for damages for negligent investigation and malicious prosecution. Defen- dants brought motion for sum- mary judgment dismissing ac- tion. Motion granted. It was not disputed that ultimate decision to charge plaintiff was made af- ter information was considered by another police service and Crown attorney. Defendants had nothing to do with ultimate decision to charge plaintiff. Nothing indicated whether in- vestigative steps taken by defen- dants were used or relied upon by other police service. In any event, trial judge who ruled on charges made definitive conclu- sion that plaintiff 's conduct was lacking in significant way. This conduct provided reasonable grounds to lay charges. Fact that plaintiff was not interviewed during investigative process was not placed in any context in terms of objective standards as to whether this represented unreasonable conduct. Prior authority indicated duty of care of investigating police officers did not actually require them to interview accused persons prior to laying charge. With respect to malicious prosecution in par- ticular, plaintiff led no tangible evidence of malice. Grann v. Thunder Bay Police Services Board (Jan. 20, 2015, Ont. S.C.J., F.B. Fitzpatrick J., File No. Thunder Bay CV-13- 0351) 250 A.C.W.S. (3d) 508. Professions BARRISTERS AND SOLICITORS Defendant's counsel not disquali- fied for conflict of interest Plaintiff 's comptroller deposed she had previously discussed personal and confidential cir- cumstances of plaintiff with defendant's counsel because she was considering retaining him on unrelated matter, and pro- vided him with full details of plaintiff 's debt following which he declined to act for plaintiff. Defendant's counsel denied he had confidential information about plaintiff or was ever in professional relationship with comptroller, and denied any recollection of meeting with plaintiff or its representatives or speaking to them about liti- gation involving plaintiff. De- fendant's counsel had been on record for three years. Motion by plaintiff to disqualify de- fendant's counsel for conf lict of interest. Motion dismissed. Comptroller's evidence she had discussion with counsel ac- cepted as it was more precise than that of counsel, who did not outright deny receiving confidential information, but rather denied any recollection of such. However, there was no solicitor-client relationship be- tween plaintiff and defendant's counsel. Plaintiff provided little detail about context of conver- sation, which was relevant to parties' reasonable expecta- tions, there was no evidence defendant received or agreed to legal fees, and plaintiff and counsel had no prior retainer. Motion likely tactical response to defendant's motion for secu- rity for costs as, if plaintiff was truly concerned about conf lict of interest, motion could have been brought sooner. No reason to reject counsel's evidence he had no recollection of any in- formation, so there was no risk it would be used. Mannarino's Creative Foods Inc. v. Pezzaniti (Feb. 23, 2015, Ont. S.C.J., Douglas J., File No. Newmarket CV-11-103772-00) 250 A.C.W.S. (3d) 511. Sale of Land CONDITIONS PRECEDENT Concrete slab, footings were removed pursuant to condition in agreement of purchase and sale Plaintiffs purchased commer- cial premises from defendant for purposes of constructing automotive lubrication deal- ership. Plaintiffs alleged that defendant failed to remove foundations and concrete slab on grade on commercial prem- ises, as agreed to pursuant to agreement of purchase and sale. Plaintiffs alleged that, as result of breach of contract, they sus- tained financial losses incurred for removal of concrete foun- dation and concrete slab on grade. Plaintiffs sought dam- ages of $150,000, arising from alleged breach of agreement of purchase and sale. Defendant counterclaimed for balance purchase price. Action dis- missed; counterclaim allowed. Case was mainly fact-based and credibility was significant issue. Plaintiffs' evidence was inconsistent or contradictory with documentation adduced. Plaintiffs' evidence was not reli- able. Defendant's evidence was candid, forthright and credible. Where plaintiffs' evidence dif- fered from that of defendant's evidence, evidence of defendant was preferred. Based on evi- dence, including that of plain- tiffs' own expert, there was no basement at property, but only concrete slab on grade and foot- ings on which building rested. Based on evidence, concrete slab on grade and footings were removed pursuant to condi- tion contained in agreement of purchase and sale. There was no sufficient or credible evidence to contrary. There was no liabil- ity or breaches of contract on part of defendant. Defendant satisfied condition and was en- titled to payment of balance of purchase price, $65,000 plus interest. Akhras v. Myung-Hwa (Feb. 20, 2015, Ont. S.C.J., Carole J. Brown J., File No. 04-CV- 271734CM2) 250 A.C.W.S. (3d) 522. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Officers had reasonable grounds to stop truck Application by accused to ex- clude evidence on basis that his rights under Canadian Charter of Rights and Freedoms were violated. Four youths escaped from youth facility. Youths were involved in two police vehicle pursuits and there was rash of thefts from motor vehicles while youths were absent without leave. Police officers saw truck being driven by young male, who was accused, and they stopped ve- hicle. Officers saw accused move from driver's seat to middle seat and girl with pigtails moved from middle rear seat into just vacated driver's seat. One officer asked accused whether he switched seats because his driver's licence was suspended and accused re- sponded that it was disqualified. Accused produced identification and he was arrested after officer conducted computer search and verified that accused was dis- qualified driver. Application dis- missed. Officers had reasonable grounds to stop truck based on information that was provided to them by other officers about escape. Seat swap, which was ex- tremely suspicious, was fresh and distinctive ground for detaining accused and it allowed officers to make further regulatory inqui- ries. Crown conceded that offi- cer breached s. 10(b) of Charter and it undertook not to rely upon accused's admission that he was disqualified driver. R. v. Field (Feb. 6, 2015, Ont. S.C.J., A.W. Bryant J., File No. 11384) 119 W.C.B. (2d) 461. FUNDAMENTAL JUSTICE Section 127 of Criminal Code not unconstitutional Trial judge convicted accused under s. 127 of Criminal Code for violating interlocutory in- junction prohibiting anti-abor- tion protesting. Accused sought to stay proceedings for abuse of process due to Crown delay and other conduct in related civil proceedings. Trial judge found Crown was not intentionally de- laying civil proceeding or that delay was malicious and dismiss- ing application. Summary con- viction appeal court upheld trial judge's decision. Appeal to Court of Appeal dismissed. Trial judge's factual findings precluded con- clusion that continued prosecu- tion was abuse of process. Abuse of process argument was collater- al attack on underlying order for interlocutory injunction. Section 127 not ultra vires Parliament for delegating enforcement of fed- eral criminal law power to pro- vincial legislatures. No violation of s. 7 of Charter for over breadth or arbitrariness as s. 127 directed at maintaining public order and was specific intent hybrid offence with internal limitations. R. v. Gibbons (Jan. 26, 2015, Ont. C.A., K. Feldman J.A., Ja- net Simmons J.A., and S.E. Pep- all J.A., File No. CA C56895) Decision at 105 W.C.B. (2d) 230 was affirmed. 119 W.C.B. (2d) 478. Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Quantity of cocaine was not consistent with personal use CASELAW

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