Law Times

lAw Times • April 11, 2011 Defendant was ordered to pay further $10,000 plus applicable HST plus disbursements of $2,500 plus HST to plaintiff for his costs and disbursements in this matter. Vigna v. Levant (Jan. 26, 2011, Ont. S.C.J., Smith J., File No. 08-CV-41703SR) 197 A.C.W.S. (3d) 600 (6 pp.). Employment WRONGFUL DISMISSAL Employer did not give employee meaningful offer to return to work during relevant time period Appeal by employer from de- cision fi nding that employee had been eff ectively terminated by operation of s. 57(17) of Employment Standards Act, 2000 (Ont.), given prolonged duration of lay-off periods imposed by employer. Judge found as fact that employer did not give employee meaningful off er to return to work during relevant time period. Appeal dismissed except to extent that damages were reduced by $200 set-off for moneys loaned. Trial judge committed no errors in approaching calculation of damages. Elsegood v. Cambridge Spring Service, 2001 Ltd. (Jan. 24, 2011, Ont. S.C.J. (Div. Ct.), Parayeski J., File No. DC-7- 10) 197 A.C.W.S. (3d) 653 (3 pp.). Wills And Estates WILLS Beneficiaries' motion for return of certificate of appointment and for will proved in solemn form failed on applicable test Testatrix was survived by sib- lings and nieces and nephews. At time of death, testatrix re- sided with R.W.. Testatrix left will appointing one of brothers and R.W. as estate trustees. Will provided that 70% of estate was to go to R.W. and residue was to be divided in specifi ed proportions among relatives and friends. Will was based on draft prepared by lawyer who was unable to attend hospital where testatrix had been con- fi ned at time of death. One of witnesses made handwritten ad- ditions to draft upon direction by testatrix before latter signed will. Certifi cate of appoint- ment was granted to named estate trustees. None of ben- efi ciaries objected to certifi cate of appointment. Estate trustees assumed administration of es- tate and made interim distri- butions pursuant to will. Six benefi ciaries brought motion for order returning certifi cate of appointment and directing that will be proved in solemn form. Benefi ciaries challenged validity of will for having been executed in suspicious circum- stances. Motion dismissed. As a rule there was right to have will proven in solemn form so as to permit scrutiny of relevant fac- tors. However, operative rules were discretionary. Motion failed applicable test that re- quired analysis of relevant cir- cumstances. In fi rst place mo- tion was brought after two and one-half years from issuance of certifi cate of appointment. Given substantial completion of administration of estate and consequences of corrections arising from intestacy, delay in presenting motion did not fa- vour granting relief requested. Explanation of delay off ered was not satisfactory. As well benefi ciaries failed to establish arguable case. Benefi ciaries re- lied solely on suspicion or be- lief that was not supported by evidence. Benefi ciaries failed to make advance and meaningful inquiry into testamentary ca- pacity of testatrix. Prong Estate (Re) (Jan. 28, 2011, Ont. S.C.J., Gordon J., File No. 09/16719) 197 A.C.W.S. (3d) 808 (21 pp.). ONTARIO CRIMINAL CASES Breathalyzer TIME ELEMENT Judge erred by focusing solely on time between arrest and arrival of accused at police station Appeal by Crown from acquit- tal of accused on charge of driv- ing with blood alcohol level that was above legal limit. Accused was stopped at 440 a.m. on May 18, 2009. Offi cer ob- served signs that she had been consuming alcohol. Accused failed approved screening de- vice test and she was arrested at 504 a.m.. Offi cer and accused had to go to police station that was 18 minutes away because closer stations, that were three minutes and 15 minutes away, did not have breath technician available. Th ey left at 524 a.m. and arrived at station at 542 a.m.. First sample was taken from accused at 620 a.m., after she exercised her right to coun- sel and her second sample was taken at 640 a.m.. Readings were 161 and 149. Crown in- troduced no evidence as to why breath technicians were not available at closer stations. Trial judge acquitted accused because he held that Crown failed to in- troduce suffi cient evidence to establish that breath tests were taken as soon as practicable. Appeal allowed. New trial or- dered. Th ere was no evidence that police wasted their time, acted unreasonably or did any- thing other than attend to their duties. Judge erred by focusing solely on time between arrest and arrival of accused at police station. Accused did not have independent right to know why breath technicians were not available at closer stations. Th ere was also no independent duty on Crown to off er evidence why technicians were not avail- able apart from his overall duty to off er evidence that breath tests were taken as soon as was practicable. Judge's reasoning was not supported by case law in Court of Appeal. R. v. Chrisjohn (Jan. 17, 2011, Ont. S.C.J., Hambly J., File No. SCA 6890) 92 W.C.B. (2d) 590 (8 pp.). CASELAW Defences SELF-DEFENCE Accused's reaction not "the nuclear option" as stated by trial judge Accused youth appealed his conviction for assault. Accused and number of friends played prank at school by holding on to men's washroom door pre- venting anyone inside from exiting. Very large student who ended up stuck inside wash- room reacted aggressively when he got out. It was implicit in trial judge's reasoning that he had accepted evidence of ac- cused that when victim did exit washroom, he approached him with clenched fi st. Trial judge concluded that accused's re- sponse of landing three punch- es on complainant's facial area was disproportionate, aggres- sive and excessive. Conviction set aside, new trial ordered. Put in context accused's reac- tion was not "the nuclear op- tion" as stated by trial judge. In circumstances to suggest that accused should be denied defence of self-defence because he should have yelled for as- sistance, backed off , or asked his friends to assist him, was wrong in law. Accused's actions were not disproportionate. R. v. W. (S.) (Feb. 7, 2011, Ont. S.C.J., Edwards J., File No. 11980/09) 92 W.C.B. (2d) 630 (4 pp.). Motor Vehicles CARELESS DRIVING Police officer exemption regarding speed did not apply if officer could not validate why travelling above speed limit Accused police offi cer was charged with careless driv- ing when he was driving at or within 10 kilometers over speed limit while travelling on high- way. Police offi cer crashed into vehicle in front of him which stopped suddenly due to high- way construction. Offi cer ar- gued that speed should not be considered because as speed lim- it did not apply to police. Police offi cer off ered no explanation for reason why he was driving that fast or tailgating vehicle in front of him but was transport- ing a prisoner. Accused found guilty. Speed could be consid- ered as police offi cer exemption did not apply if offi cer could not validate why he was travel- ling above speed limit. Offi cer was driving too fast in area of known construction and driv- ing too close to avoid collision. Collision itself did not mean careless driving would always be found but did establish prima facie case requiring explanation which was lacking. R. v. Tansley (Jan. 12, 2011, Ont. C.J., Dudar J.P.) 92 W.C.B. (2d) 649 (6 pp.). Sexual Offences SEXUAL ASSAULT Accused's criminal record relevant in assessing his credibility, as was his failure to initially admit entire record Accused charged with three counts of sexual assault, three www.lawtimesnews.com counts of sexual interference and one count of invitation to sexual touching. Complainant testifi ed that when she was be- tween ages of seven and nine years old accused licked her breasts and vagina and asked her to touch his penis. Accused de- nied allegations. Accused found guilty. Court rejected accused's testimony. Accused's criminal record was relevant in assessing his credibility, as was his failure to initially admit his entire re- cord. Accused was evasive and provided inconsistent testimo- ny about whether complain- ant's mother was concerned about his claim to her house. Some of language complainant attributed to accused seemed beyond her age level. Amount of detail provided by complain- ant supported her credibility. Complainant's testimony was clear, coherent and consistent. No motive for complainant to lie and her testimony was ac- cepted as truthful and accurate. Nothing to support submission that complainant's mother put her daughter through ordeal of living at shelter, police investi- gation and court proceedings to harm accused and/or preserve her interests in her property. R. v. Attridge (Feb. 11, 2011, Ont. C.J., De Filippis J., File No. 998 09 16007) 92 W.C.B. (2d) 696 (8 pp.). Sentence PRINCIPLES Trial judge followed proper procedural protocol for departing from joint submission PAGE 27 Accused appealed sentence of four months' imprisonment following guilty pleas to being unlawfully at large and failing to comply with probation. Joint submission was made for inter- mittent sentence of 75 days, less 30 days pretrial credit. Accused had extensive criminal record which included several breach- es of recognizance, failures to comply with probation orders and being unlawfully at large. Accused argued trial judge erred in not adopting joint submission as to sentence and erred in using improper stan- dard to reject joint submission. Appeal dismissed. Trial judge did not err in principle in ad- dressing threshold. Trial judge found proposed sentence to be patently unreasonable and that it would be clearly contrary to proper administration of jus- tice to accede to it. Trial judge was not required to use precise wording in threshold test in expressing high threshold. Trial judge followed proper proce- dural protocol for departing from joint submission. Trial judge provided adequate rea- soning for sentence imposed. Trial judge took into account accused's previous convictions for similar off ences, length of earlier periods of incarcera- tion, applied principle of total- ity and imposed sentence with specifi c and general deterrence in mind. No basis to interfere with sentence. R. v. Fornalczyk (Feb. 15, 2011, Ont. S.C.J., Allen J., File No. 168/10) 92 W.C.B. 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