Law Times

Law Times • January 24, 2011 which involved multiple ac- cused, multiple complainants and two police divisions. Th ese factors led to unusually lengthy investigatory and booking pro- cedures upon arrest. It was only these factors that led to s. 503 being violated. R. v. C. (C.) (Nov. 15, 2010, Ont. C.J., Caldwell J.) 91 W.C.B. (2d) 256 (7 pp.). Costs POWER TO AWARD Applications to review administrative classification decisions by prison authorities are civil in nature Respondent Crown success- fully defended application for habeas corpus that challenged applicant's administrative transfer from minimum secu- rity penitentiary to medium se- curity one. Respondent sought award of costs which applicant argued was not available, say- ing courts have no jurisdic- tion to award costs in criminal matters. Application allowed. Applications to review admin- istrative classifi cation decisions by prison authorities are civil in nature and, therefore, avail- able for costs award. Respon- dent sought costs of $11,560 on partial indemnity basis. Re- spondent awarded fi xed costs at $4,000. R. v. Hertrich (Nov. 17, 2010, Ont. S.C.J., McIsaac J., File No. CR-10-5) 91 W.C.B. (2d) 265 (2 pp.). Evidence WITNESSES Police officer could not give expert evidence on impairment Accused was charged with driv- ing motor vehicle while im- paired by drug. Police thought accused was attempting to evade checkstop and noticed strong smell of marijuana after stopping accused. Accused ad- mitted to smoking marijuana and trained evaluating offi cer ran accused through few tests and determined accused was impaired by alcohol by virtue of results of divided-attention tests. Information on tests was not detailed as to length of time accused swayed or amount of times he misstepped in walk- and-turn test. Crown sought to have evaluating offi cer tes- tify as expert in regards to im- pairment by drug. Accused was given drug test and marijuana was found in his system. Ac- cused found not guilty. Police offi cer was qualifi ed as evaluat- ing offi cer only and could not give expert evidence on im- pairment as it was up to trier of fact to determine that ultimate issue. Court was concerned that divided-attention tests did not provide suffi cient infor- mation to convict. Court also noted there was considerable evidence accused was not im- paired including no evidence of bad driving, getting out of his vehicle, retrieving docu- ments or walking to police car at scene. All of evidence must be considered and lack of sig- nifi cant signs of impairment led to reasonable doubt. R. v. Jurcevic (Nov. 26, 2010, Ont. C.J., DiGiuseppe J., File No. 100159) 91 W.C.B. (2d) 270 (14 pp.). Practice, Process, And Procedure SUBPOENA Subpoenas refused because accused was engaged in fishing expedition Application by accused for subpoenas to be issued against complainant, four police of- fi cers and Crown attorney in connection with his applica- tion for stay of criminal charg- es that he faced. Accused also sought to subpoena diff erent police offi cer to obtain disclo- sure of identity of confi dential informant. Accused believed that complainant was infor- mant. Applications dismissed. Subpoenas sought in connec- tion with motion to stay were not granted because accused was engaged in fi shing expe- dition. Accused's belief that police engaged in misconduct lacked foundation. He did not prove that any of these wit- nesses could give evidence ma- terial to facts that he sought to prove. Regarding disclosure of identity of informant accused did not receive any disclosure of offi cer's notes. He had no factual basis for his belief that complainant was informant and subpoena would therefore not be granted. R. v. Fazekas (Nov. 29, 2010, Ont. S.C.J., Hennessy J., File No. 89/10) 91 W.C.B. (2d) 286 (6 pp.). ONTARIO CIVIL CASES Damages PERSONAL INJURIES Issue of extent of plaintiff's injuries not res judicata Plaintiff sought damages against defendant for inju- ries plaintiff suff ered as result of falling through window of store where plaintiff worked. Plaintiff had facial scaring and ongoing pain. Plaintiff claimed defendant pushed plaintiff through window when defen- dant was attempting to fl ee after shoplifting. Defendant pleaded guilty to assault and failed to respond to plaintiff 's request to admit. Plaintiff ar- gued issue of defendant's liabil- ity was res judicata. Defendant did not show basis to allow de- fendant to adduce evidence to rebut conviction or to re-litigate facts essential to conviction of assault and that defendant was responsible for plaintiff falling through window. Defendant was not permitted to withdraw deemed admissions concern- ing defendant's responsibility for incident. Defendant caused plaintiff 's injuries. Issue of ex- tent of plaintiff 's injuries not res judicata as result of either de- fendant's guilty plea or deemed admissions. Damages awarded were payable within 90 days. General damages were assessed at $125,000 plus prejudgment interest. Plaintiff was entitled to loss of income of $11,048. CASELAW No punitive damages were awarded. $16,150 awarded by Criminal Injuries Compensa- tion Fund was to be deducted from damages awarded. Georgiou v. Vassos (Nov. 3, 2010, Ont. S.C.J., Roberts J., File No. 03-CV-256843 CM) 195 A.C.W.S. (3d) 287 (11 pp.). Contempt Of Court GROUNDS Father failed to establish that mother in contempt of access order Court made detailed custody and access order respecting par- ties' two young children. Order provided that missed access vis- its would be made up within seven days. Father complained that mother had cancelled ac- cess visits or been late and had not made suffi cient eff orts to make up time. One child had to attend numerous medical appointments due to hear- ing impairment. Other child required assistance for speech development. Father moved for fi nding that mother in con- tempt of order. Motion dis- missed. Father failed to estab- lish beyond reasonable doubt that mother in contempt. Even father had accepted mother's explanations for lateness or can- cellation of access visits. Th ere were exceptional circumstances existed relating to children's health needs. Responsibility for attendances at medical ap- pointments rested primarily with mother. Father was being provided with signifi cant and meaningful access. Nagra v. Mann (Dec. 13, 2010, Ont. S.C.J., Fragomeni J., File No. FS-07-061055-00) 195 A.C.W.S. (3d) 107 (21 pp.). Family Law PROPERTY Husband recklessly depleted all net family property and incurred serious debts Parties married in 1995, had two children and separated in 2007. Parties lived most of their married lives in Califor- nia. Husband was practising lawyer. Unbeknownst to wife, husband extorted money from small retails threatening to sue them for perceived law viola- tions and then off ering to settle for fee. Husband was ordered to pay $1.8 million in civil penalties and was subsequently disbarred. Husband then reck- lessly depleted all net family property and incurred serious debts. It was ordered that no equalization payment be made by wife to husband. Equaliza- tion on facts was unconscio- nable. Wife and children had been victims of husband. Brar v. Brar (Dec. 1, 2010, Ont. S.C.J., Snowie J., File No. 31471/09) 195 A.C.W.S. (3d) 185 (17 pp.). Injunctions INTERLOCUTORY RELIEF Respondents ordered to cease and desist from stopping construction Locations were subject to work stoppages as result of protests by respondents who claimed www.lawtimesnews.com ownership to land. City passed by-laws prohibiting blockage and disruption of work on mu- nicipal roadways at construc- tion sites. City sought interloc- utory injunction. Respondents sought dismissal of application and declaration by-laws were invalid and quashed. Applica- tions of respondents were dis- missed. Respondents were or- dered to cease and desist from stopping work in any manner. Respondents were enjoined from demanding fee as condi- tion of use or development of land. Respondents admitted main action raised serious ques- tions to be tried. Torts of civil conspiracy and public nuisance had merit. City would suff er irreparable harm. Economy of city was at risk, employment of members of community was at risk, reputation of city as place to live was at risk, and tax base was at risk. Balance of conve- nience was in favour of city. After preliminary assessment court concluded claim for title was exceedingly weak. Return of land would be barred by laches. Adequate consultation occurred with respondents. By-laws were not invalid and were not quashed. By-laws were passed in full compliance with city's usual practice, city's procedural by-law and appli- cable provisions of Municipal Act, 2001 (Ont.). Respondents did not rebut presumption city passed by-laws in good faith. By-laws did not breach any provision of Canadian Charter of Rights and Freedoms. Brantford (City) v. Montour PAGE 15 (Nov. 19, 2010, Ont. S.C.J., Arrell J., File No. CV-08-334) 195 A.C.W.S. (3d) 240 (29 pp.). Pensions BENEFICIARIES Applicant did not qualify as "spouse" or "successor spouse" At time of deceased's retire- ment, deceased was married to fi rst wife. First wife died. Deceased married applicant. Deceased died three months later. Applicant claimed appli- cant was entitled to retirement benefi ts under pension plan. Applicant argued applicant was spouse of member under plan at time of member's death. Re- spondent argued there was no entitlement to benefi ts pursu- ant to provisions of plan be- cause applicant did not qual- ify as "spouse" or "successor spouse". Application was dis- missed. Th ere was no issue ap- plicant did not meet defi nition of successor spouse because ap- plicant was not married to de- ceased for more than one year at time of death. Respondent's submission that conferring sta- tus of spouse took place only once and on earliest occur- rence of member's termination, retirement or death was consis- tent with Pension Benefi ts Act (Ont.). At time of deceased's retirement deceased's spouse was fi rst wife. Robinson v. University of Guelph (Nov. 22, 2010, Ont. S.C.J., Hourigan J., File No. 216/10) 195 A.C.W.S. (3d) 265 (9 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. You can print or download PDFs of both reported and unreported decisions – no photocopying required. 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