Law Times

lAw Times • April 4, 2011 serious issue to be tried. Th ere was potential for irreparable harm to both shareholders, including applicant. Goodwin v. Goodwin (Feb. 3, 2011, Ont. S.C.J., McDermot J., File No. FC-09-33299) 197 A.C.W.S. (3d) 411 (15 pp.). Family Law CUSTODY Non-parent applicants exempted from additional requirements imposed by Children's Law Reform Act (Ont.) Motion by applicants for order granting applicants exemption to additional requirements imposed by Children's Law Reform Act (Ont.), on non-parents who ap- ply for custody of access to child. Society apprehended child, and placed her with applicants. Ap- plicants were family friends. Sub- sequently, society wished to termi- nate case. Maternal grandmother wished for child to be placed with her. Applicants intended to com- mence custody application with grandmother as respondent. Act requires non-parents who ap- ply for custody to obtain police record checks and reports from children's aid societies. Motion granted. Where there was existing child protection case, child had been living in care and control of caregivers who were applying for custody for appreciable length of time with court's approval and court already had information set out in additional requirements, additional requirements should not be required. R. (L.) v. V. (V.) (Jan. 21, 2011, Ont. C.J., Sherr J., File No. D52722/10) 197 A.C.W.S. (3d) 448 (8 pp.). Injunctions INTERLOCUTORY RELIEF Anton Pillar order only realistic measure available to plaintiffs to protect against loss or destruction of highly relevant evidence Motions by plaintiff s for Anton Pillar order against premises of de- fendants. Motions granted. Evi- dence established that plaintiff s had strong prima facie case against defendants for civil conspiracy, conversion, fraud and fraudulent misrepresentation. Destruction of evidence would frustrate plain- tiff s' ability to obtain remedy in respect of defendants' allegedly unlawful activities. Electronic evidence was easily transferred or purged. Order was only realistic measure available to plaintiff s to protect against loss or destruction of highly relevant evidence. Bell ExpressVu Limited Partner- ship v. Pieckenhagen (Jan. 28, 2011, Ont. S.C.J., Cumming J., File No. CV-11-9069-00CL; 11- 9070-00CL) 197 A.C.W.S. (3d) 491 (6 pp.). Real Property LIENS Defendant not owner within meaning of s. 1(1) of Construction Lien Act (Ont.) Motion by defendant for sum- mary dismissal of plaintiff 's claim. Defendant was owner of commercial plaza. Defendant entered into lease agreement with tenant, which included term that defendant was to provide Lease- hold Improvement Allowance to tenant to subsidize cost of reno- vation work. Tenant entered into contract with plaintiff for HVAC work. Plaintiff claimed that it was owed sum of money for its work. Plaintiff commenced ac- tion against defendant. Motion granted. Action was dismissed. Defendant was not owner within meaning of s. 1(1) of Construc- tion Lien Act (Ont.). It could not be reasonably inferred that defendant made implied request to plaintiff for work to be done. Lease provided that all of tenant's work were subject to defendant's approval. Lincoln Mechanical Contractors v. Cardillo (Jan. 28, 2011, Ont. S.C.J., Henderson J., File No. 48830/07) 197 A.C.W.S. (3d) 529 (12 pp.). Torts NEGLIGENCE Corporate owner of bar liable for actions of bar manager Action by plaintiff for damages for assault and battery, and breach of duty and statute pursuant to Occupiers' Liability Act (Ont.). Plaintiff worked as bartender in night club. Defendant was man- ager of bar. Plaintiff alleged that one night after work, defendant cornered plaintiff against wall, lifted up her top and touched her breasts and her vagina. De- fendant pled guilty to criminal charge of sexual assault. Plaintiff sought damages from defendant and corporate owner of bar. Ac- tion allowed. Defendant was clearly liable for impact of his assaultive behaviour. Corpora- tion was liable for actions of de- fendant. Defendant was de facto working face/operating mind of corporation. Th ere was defi nite link between defendant operat- ing bar and his ability to domi- nate plaintiff . T. (K.) v. Vranich (Jan. 28, 2011, Ont. S.C.J., Whitten J., File No. 08-4195) 197 A.C.W.S. (3d) 554 (20 pp.). ONTARIO CRIMINAL CASES Breaking And Entering PRESUMPTION OF INTENT Trial judge did not make necessary findings of fact or address question of accused's intention when he broke into home Accused appealed his conviction for breaking and entering with intent to commit indictable of- fence. Th ere was no doubt ac- cused broke into victim's home and that his entry was unlawful. Trial judge found accused guilty of mischief in course of enter- ing home by damage caused by his entry. Appeal allowed, new trial ordered. Trial judge did not make necessary fi ndings of fact or address question of accused's intention when he broke into home and evidence did not per- mit court to make necessary fac- tual fi ndings. On very unusual facts of case accused's intention at CASELAW time he entered home was sig- nifi cant issue and one on which there was clear factual dispute. R. v. Fulton (Jan. 24, 2011, Ont. C.A., Doherty, Laskin and Gillese JJ.A., File No. C52045) 92 W.C.B. (2d) 478 (2 pp.). Disclosure GENERAL Rules do not confer jurisdiction on pretrial judge to make binding orders for disclosure Application by Crown for cer- tiorari to quash disclosure or- der. Justice pre-tried charges of sexual assault, sexual inter- ference and sexual exploita- tion and made order requiring Crown to provide transcripts of various interviews. Interviews and statement had already been disclosed to accused's counsel in form of videotape. Applica- tion granted. Order to issue in nature of certiorari quash- ing order requiring Crown to provide transcripts of video disclosure. Correct forum for reviewing disclosure decisions of Crown counsel is trial judge. Justice conducting preliminary inquiry has no power to review Crown disclosure decisions. Justice who conducts prelimi- nary inquiry has no inherent authority and is not "court of competent jurisdiction" for purposes of s. 24(1) Charter. Rules do not confer jurisdic- tion on pretrial judge to make binding orders for disclosure. Pretrial justice did not have ju- risdiction to make order. R. v. Ruiz (Jan. 27, 2011, Ont. S.C.J., Edwards J.) 92 W.C.B. (2d) 503 (4 pp.). Evidence CONFESSIONS AND ADMISSIONS Police still had right to continue questioning accused even after accused invoked his right to remain silent on multiple occasions Accused sought to exclude his videotaped confession as not being voluntary due to fatigue and police trickery. Accused had asserted his right to silence 16 times but chose to answer certain questions admitting that he was trying to obtain in- formation from police. Police used statement from another to spiritually and morally per- suade him to confess but of- fered no inducements. Accused had desire to return to his cell but did not appear to be overly tired on video. Accused admit- ted to his involvement in home invasion exposing his moral be- liefs as to treatment of women and concern for woman sub- ject to break-in. Statement ad- missible. Statement was clearly voluntary as accused was not overly tired and it was not po- lice trickery to attempt to mor- ally or spiritually persuade ac- cused to confess. Police off ered no inducements and police still had right to continue asking accused questions even after he invoked his right to remain silent on multiple occasions. Accused admitted to desire of learning more information www.lawtimesnews.com Starting from $62.50 per month from police and there was no indication that accused did not make statement of his own free will. Police did not mistreat, oppress or off er accused quid pro quo and thus statement was admissible. R. v. King (Feb. 7, 2011, Ont. S.C.J., Daley J., File No. CR- 10-087-0000) 92 W.C.B. (2d) 508 (24 pp.). Extradition And Fugitive Offenders SURRENDER Authority to proceed and committal order need not align exactly with surrender order B. sought by United States for trial on charges of participat- ing in large scale marijuana importing conspiracy over 34 months. Authority to Pro- ceed named charges of import- ing marijuana and possessing property obtained by crime. Record of the Case described single incident when B. al- legedly drove 100 pounds of marijuana to United States and received payment. B. con- sented to committal but asked Minister not to surrender him on broad charges of conspiracy because no evidence concern- ing it was led at extradition hearing. Minister ordering B.'s surrender to face United States indictment alleging conspiracy. Application for judicial review of surrender order dismissed. Authority to Proceed and com- mittal order need not align exactly with surrender order. Minister's decision to surrender B. was reasonable. Extradition PAGE 15 Act, S.C. 1999, c. 18, ss. 3(1), 15(3), 58(b). United States of America v. Barbu (Dec. 21, 2010, Ont. C.A., MacPherson, Sharpe and MacFarland JJ.A., File No. C52379) 92 W.C.B. (2d) 512 (29 pp.). Mental Illness GENERAL Trial judge's reasons demonstrated she was alive to proper onus on Crown Appeal from fi nding of not criminally responsible. Ac- cused argued that, instead of requiring Crown to prove that accused was not criminally re- sponsible, trial judge reversed onus and required accused to prove that he was criminally responsible. Appeal dismissed. Trial judge's reasons demon- strated she was alive to proper onus on Crown. Fair reading of reasons as whole showed tri- al judge was merely observing that accused's own evidence gave further support to expert's opinion. Trial judge's reasons not inadequate but fulfi lled their required function and reviewed aspects of unchal- lenged expert evidence upon which trial judge relied. It was open to trial judge to conclude accused did not appreciate na- ture and quality of his acts and did not know that his acts were wrong. R. v. Shepherd (Feb. 1, 2011, Ont. C.A., Moldaver, Cronk and Lang JJ.A., File No. C50349) 92 W.C.B. (2d) 520 (3 pp.). When More is Too Much Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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