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Law Times • February 14, 2011 expenses related to therapeutic boarding school in which child was provisionally enrolled. Fa- ther sought to have child en- rolled in government funded treatment centre. Father was ordered to pay mother $200 per month as contribution toward school expenses. Evidence indi- cated that therapeutic boarding school most comprehensively addressed child's multiple needs. Expense of boarding school was necessary in relation to child's best interests. Given means of parties and their current spouses, expense was reasonable. Azougarh v. Maliakkal (Nov. 29, 2010, Ont. C.J., Cohen J., File No. D70/98-C-A1) 195 A.C.W.S. (3d) 1075 (19 pp.). Limitations DISCOVERABILITY Two-year limitation period applied to wrongful dismissal and negligence claims Application by employer for summary judgment dismissing claim for wrongful dismissal and negligence on grounds ac- tion statute-barred. Employee fi led complaint under Part III of Canada Labour Code against employer with Human Re- sources Development Canada alleging unjust dismissal. Adju- dication of complaint proceeded but employee subsequently ad- vised arbitrator that she wished to withdraw complaint in order to pursue civil remedy in court. Application granted. Employee took position from start that employer had terminated her employment on January 16, 2007. Continued receipt of severance payments did not af- fect date of determination when she discovered here wrongful dismissal claim. Employee had discovered her negligence claims no later than January 24, 2007. Two-year limitation period ap- plied to both claims and action consequently statute-barred. Ng v. Bank of Montreal (Dec. 23, 2010, Ont. S.C.J., Brown J., File No. CV-09-00375197) 195 A.C.W.S. (3d) 1143 (5 pp.). Real Property CONDOMINIUMS No remedy available directly against developer under s. 135 of Condominium Act, 1998 (Ont.) Application pursuant to s. 135 of Condominium Act, 1998 (Ont.), for declaration that re- spondents by failing to establish cost sharing agreement between applicants and E Co. had acted oppressively or in a manner un- fairly prejudicial to applicant or unfairly disregards interests of applicants and for order requir- ing E Co. to pay to applicants its share of costs of maintenance, re- pair, replacement and operation of certain shared facilities and services. E Co. was developer of four condominium projects. Block of land conveyed by E Co. to each of the other respondents on which each of the other re- spondents built condominium. Ground fl oor of each develop- ment remained freehold prop- erty for development of retail and commercial premises. Free- hold ground fl oor commercial/ retail portion conveyed back to E Co. which now leased freehold premises to various commercial and retail enterprises. Common ground that E Co. not an owner, corporation or declarant under s. 135 of Act. Application dis- missed. No remedy available di- rectly against E Co. under s. 135 of Act. Precondition to court in- tervention not established. Metropolitan Toronto Condomin- ium Corp. No. 1272 v. Beach De- velopment (Phase II) Corp. (Sep. 20, 2010, Ont. S.C.J., Penny J., File No. 05-CV-289748PD2) 195 A.C.W.S. (3d) 1164 (16 pp.). ONTARIO CRIMINAL CASES Appeal NO SUBSTANTIAL WRONG No reasonable trier of fact could come to any verdict other than guilty Appeal by accused from his con- viction for several off ences that resulted from armed robbery. Robbery was committed by three individuals. Accused did not participate directly in rob- bery but he drove two perpetra- tors to and from robbery scene in his car. Appeal dismissed. Trial judge used accused's exercise of his right to silence, when he was arrested, as basis on which to re- ject his evidence. Accused had constitutional right to remain silent. Use of his silence as basis to reject his trial testimony was off ensive to fundamental right to silence. It was serious error in law. However, curative pro- viso could be applied because of overwhelming nature of case. Th ere was very strong circum- stantial evidence that implicated accused. Accused was also far from credible. No reasonable trier of fact could come to any verdict other than guilty on all of charges. R. v. Ricketts (Dec. 2, 2010, Ont. C.A., Doherty, Feldman and Ju- riansz JJ.A., File No. C51915) 91 W.C.B. (2d) 562 (6 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Judge did not err in finding delay unreasonable Appeal by Crown from stay granted to accused because he was not tried within reasonable period of time, contrary to s. 11(b) of Canadian Charter of Rights and Freedoms. In No- vember 2006 Ministry of La- bour ordered company to guard certain equipment which endan- gered workers. Accused, who was professional engineer, was retained by company pursuant to Ministry's order and he made recommendations regarding safety of equipment. In January 2007 accused certifi ed that rec- ommendations had been imple- mented. In April 2007 employee died from injuries suff ered while he worked on equipment that ac- cused had certifi ed as being safe. CASELAW Ministry investigated accident and concluded that equipment had not been guarded properly and accused's recommendations had not been implemented. On December 21, 2007 accused was charged under Occupational Health and Safety Act (Ont.). He was alleged to have provided negligent or incompetent advice or certifi cation, as engineer, that endangered worker. Trial was scheduled to occur in Septem- ber 2009 but it was adjourned in that month to April 2010 be- cause of late disclosure provided by Crown in August 2009. Judge noted that materials that consti- tuted late disclosure were made available to Crown in May 2009 and Crown should have acted more expeditiously to provide it to accused. Stay was granted be- cause time to trial exceeded con- stitutional limits by substantial period and complexity of case did not necessitate delay. Crown's failure to diligently pursue new evidence, when it became avail- able, resulted in violation of s. 11(b). Appeal dismissed. It took 28 months to bring accused to trial. Total institutional and Crown delay was 18 months. Judge did not err in fi nding that delay to be unreasonable. Judge also did not err when he found that delay prejudiced accused. Even though accused faced seri- ous charge and he should have been tried, trial delay was unrea- sonable and it violated s. 11(b). R. v. Vollick (Dec. 8, 2010, Ont. S.C.J., Murray J., File No. SCA(P)115/10) 91 W.C.B. (2d) 557 (20 pp.). Costs GENERAL Remedy sought by inmate was civil in nature Inmate unsuccessfully applied for habeas corpus with certiorari in aid regarding transfer from gen- eral population to involuntary segregation at medium security penitentiary followed by transfer to diff erent penitentiary. Crown's application for costs allowed. Remedy sought did not involve issue arising from original con- viction or indictment and was civil in nature. Although issue of deprivation of liberty decided in inmate's favour, result not mixed as deprivation found to be legal and reasonable and application ultimately dismissed. Amount of disbursements and hourly rate of $145.90 sought by Crown fair and reasonable. Applica- tion involved some complexity and issues important to parties, but one hundred hours claimed was excessive. Proportionate fees were $5,000. Total costs assessed at $7,000. R. v. Campbell (Nov. 30, 2010, Ont. C.J., DiTomaso J., File No. CR-10-15-MO) 91 W.C.B. (2d) 592 (4 pp.). Sentence FORFEITURE ORDERS Car remained legal property of accused's parents Application by Attorney General of Canada for order for forfeiture of car, pursuant to s. 16(1) of Controlled Drugs and Substanc- es Act (Can.) as off ence-related www.lawtimesnews.com property. Accused was charged with several drug off ences. Be- fore charges were laid police observed accused using car to transport and to facilitate sale of illegal drugs and substances. Ac- cused pleaded guilty to one of- fence of traffi cking in marijuana. Accused's father claimed that he purchased car for himself. He used his fi nancial resources to do so and he put it in his wife's name. Vehicle was insured un- der father's policy. Father also testifi ed that he allowed accused to use car to travel to and from school. Application dismissed. Even though there was evidence that car was used exclusively by accused during time of off ence and it was equipped with igni- tion interlock device for benefi t of accused and vehicle was kept at his residence, it remained le- gal property of accused's parents. Father could have at any time required accused to return car to him. It was only in accused's possession because of his father's generosity but such did not give him either legal ownership or entitlement to vehicle. Car was therefore to be returned to fa- ther. R. v. Kohi (Dec. 7, 2010, Ont. C.J., Zisman J., File No. 09- 92619) 91 W.C.B. (2d) 645 (7 pp.). THREATENING Sentence of 349 days imposed after accused's acquittal set aside Determination of sentence of accused after his acquittal on charge of uttering threat to cause bodily harm to his for- PAGE 15 mer probation offi cer was set aside. Accused was also con- victed of several breaches of his bail order and of his probation terms. For these off ences trial judge determined that appro- priate sentence was 18 months' imprisonment. After he gave credit to accused for 190 days spent in custody he sentenced accused to 349 days' imprison- ment. Accused unsuccessfully appealed his convictions for other off ences. Appellate court felt this was appropriate case for it to sentence accused for threatening charge. Accused had lengthy criminal record which included many failures to comply with court orders. His prospects of rehabilitation were nil. Court, however, re- ceived two additional reports from same doctor who provid- ed report to trial judge. Material outlined accused's post-sentence progress and it off ered some reason to think that accused's future prospects had improved. Accused committed serious of- fence when he threatened pro- bation offi cer. For this convic- tion he would have received six months in addition to original 18-month sentence. Based on fresh evidence about accused's improved prospects for rehabili- tation court imposed sentence of 349 days of imprisonment for threatening charge. It would be served concurrently to other sentence he received. R. v. Felteau (Dec. 3, 2010, Ont. C.A., Doherty, Feldman and Ju- riansz JJ.A., File No. C52121) 91 W.C.B. (2d) 556 (6 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. 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