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PAGE 18 1446968 Ontario Inc. v. Capmor Financial Services Corp. (Mar. 1, 2011, Ont. C.A., Rosenberg, Feldman and Juriansz JJ.A., File No. C51494) Decision at 183 A.C.W.S. (3d) 330 was re- versed. 200 A.C.W.S. (3d) 935 (10 pp.). Civil Procedure CHANGE OF SOLICITOR Reasonably informed observer would be satisfied that no use would be made of confidential information possessed by lawyer Plaintiff purchased residential property from family which was found to be uninhabit- able. Plaintiff claimed damages. Plaintiff's lawyer commenced employment with law firm representing defendants. In ad- vance of lawyer's change of em- ployment law firm took steps to ensure no information would be passed concerning case by lawyer to anyone in law firm. Law firm physically removed file from of- fice. All employees signed agree- ment including potential sanc- tion of dismissal for breaching agreement. Plaintiff sought or- der removing law firm as solici- tors for defendants. Motion was dismissed. Law firm established it was in interests of justice that law firm continue to act in mat- ter. Law firm was proactive. Law firm anticipated potential con- flict and put in place effective measures. Reasonably informed observer would be satisfied that no use would be made of confi- dential information possessed by lawyer. Dwyer v. Mann (Apr. 6, 2011, Ont. S.C.J., Cavarzan J., File No. 50934/09) 200 A.C.W.S. (3d) 940 (9 pp.). COMMENCEMENT OF PROCEEDINGS Test for adding party where discoverability was in issue was met Defendant's vehicle struck plain- tiff's vehicle from rear. Plaintiff argued it was not until after second surgery that extent of plaintiff's injuries, damages and losses became evident. Plaintiff brought motion to amend state- ment of claim to increase amount of damages claimed and to add family members as plaintiffs under Family Law Act (Ont.). Motion was allowed. Leave was granted for plaintiff to deliver amended statement of claim to increase damages claimed to $2 million and to add named indi- viduals as plaintiffs. Test for add- ing party where discoverability was in issue was met. Plaintiff provided evidentiary basis that was sufficient to raise issue of delayed discoverability of family law claims. Giroux v. Pollesel (Apr. 8, 2011, Ont. S.C.J., Cornell J., File No. C9847/06) 200 A.C.W.S. (3d) 942 (9 pp.). SUMMARY JUDGMENT Issue of whether house was given as wedding gift was genuine issue requiring trial Motion by defendant for sum- mary judgment for declaration that proceeds from sale of house currently held in trust belongs to her. Parties were allegedly mar- ried in Syria. Plaintiff purchased house, which was registered in defendant's name. All equity in property resulted from money paid by plaintiff. Parties separ- ated and house was sold. Plain- tiff made assignment in bank- ruptcy. Motion dismissed. Issue of whether house was given as wedding gift from plaintiff to defendant was genuine issue re- quiring trial. It was not possible to weigh evidence, evaluate cred- ibility or to draw inferences from evidence without trial. Agha v. Hakmi (Apr. 21, 2011, Ont. S.C.J., Murray J., File No. 7363/09) 200 A.C.W.S. (3d) 990 (7 pp.). Family Law CUSTODY Change in care provided by parents since prior interim custody order amount to material change in circumstances Motion by father for leave to appeal from, and stay pending appeal of, judgment granting parties joint and shared interim custody. Mother and father had one child prior to separation. Father remained on his farm property with child. Father al- leged mother had mental health issues, that her boyfriend was involved in criminal activity and that mother might remove child from jurisdiction. Father was granted interim custody of child. Mother was required to attend assessments by psych- ologist and psychiatrist. Mother obtained favourable report from psychologist and filed other fa- vourable material. Father was supposed to arrange assessment of mother by psychiatrist but failed to do so in time. Mother successfully brought motion for joint and shared interim cus- tody and child support. Motion dismissed. Motions judge had not erred in finding evidence disproving father's allegations amounted to material change in circumstances. Court could not reasonably have known truth of situation when first order was made. Court had to allow time for investigation of father's al- legations. Motions judge had also not erred in finding change in care provided by parents since prior interim custody order amounted to material change in circumstances. Decrease in qual- ity of father's care and positive ef- forts on part of mother and her boyfriend had effects on child. Bergen v. Sharpe (Mar. 25, 2011, Ont. S.C.J., Price J., File No. DC-10-79) 200 A.C.W.S. (3d) 1066 (39 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Respondent's response to storm was completely reasonable Appellant brought action for in- juries he suffered in slip and fall accident on one of respondent's sidewalks following major snow and ice storm. Respondent's general policy with respect to snow and ice removal was rea- sonable one. On days in ques- tion its performance pursuant to policy was far removed from being grossly negligent. Storm CASELAW in April 2003 was extraordinary atmospheric event. Trial judge carefully reviewed respondent's systems, personnel and policies for dealing with snow storms. He concluded that respondent's response to storm was complete- ly reasonable. Billings v. Mississauga (City) (Mar. 29, 2011, Ont. C.A., O'Connor A.C.J.O., Laskin and MacPher- son JJ.A., File No. C52281) De- cision at 191 A.C.W.S. (3d) 1012 was affirmed. 200 A.C.W.S. (3d) 1226 (3 pp.). Professions BARRISTERS AND SOLICITORS Solicitor had duty to carefully represent client by thoroughly investigating title Action by client against solici- tor for damages for negligence. Vendor owned vacant land through which municipality wished to construct road. Vend- or agreed to sell municipality portion of land for road subject to certain conditions. Condi- tions included restrictive coven- ant requiring future purchasers of vendor's remaining land to pay road construction costs in- curred by municipality. Transfer was registered in land registry office. Presence of restrictive covenant was noted but agree- ment itself was not registered. Client retained solicitor to ne- gotiate purchase of land from vendor. Vendor did not disclose terms of restrictive covenant. Client's solicitor did not inves- tigate restrictive covenant prior to closing. After learning about obligation to pay construc- tion costs, client's solicitor was able to negotiate reduction in amount. Action allowed. Client was awarded $239,086.09 for amount paid to municipality for construction costs plus $10,000 for fees paid to solicitor for ne- gotiating reduction. Solicitor had duty to carefully represent client by thoroughly investigat- ing title. Solicitor had not fully appreciated issues surrounding obligation to pay construction costs. Solicitor acknowledged failing to make inquiries during due diligence period. Issue did not fall within client's area of personal responsibility. Solicitor had high level of involvement in preparing purchase agree- ment. Solicitor should have ex- plained clauses that required due diligence inquiries and ensured client understood consequences of waiving conditions. Such pro- cess had not fully occurred in this case. Outaouais Synergest Inc. v. Kee- nan (Mar. 23, 2011, Ont. S.C.J., James J., File No. 05- CV-031418) 200 A.C.W.S. (3d) 1215 (44 pp.). Real Property CO-OWNERSHIP Actions taken by creditor severed joint tenancy Application for creditor for or- der deleting name of deceased as owner of condominium and order directing Land Registrar to amend parcel register to show debtor as sole surviving joint tenant. Debtor and deceased www.lawtimesnews.com purchased condominium unit as joint tenants. Creditor ob- tained default judgment against debtor for substantial amount of money. Deceased executed will providing that her interest in condominium pass to her son when she died. Application dismissed. It was declared that current owners of condominium were debtor and his son as ten- ants-in-common. Actions taken by creditor severed joint tenancy. Deceased's meaning in her will was clear. Royal & SunAlliance Insurance Co. v. Muir (Apr. 11, 2011, Ont. S.C.J., Perell J., File No. 10-CV- 415265) 200 A.C.W.S. (3d) 1205 (8 pp.). ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Court was entitled to order accused to participate in counselling Accused appealed his 60-day conditional sentence with three years' probation imposed after he was convicted of sexual as- sault upon his former wife. Ac- cused wished to strike out terms of probation order requiring him to both attend and actively participate in rehabilitative pro- grams for anger management and sexual behaviour and to con- tinue to attend on regular basis for psychiatric care and provide monthly attendance reports to his probation order. Probation order provisions altered to indi- cate requirement of consent. Court was entitled to order ac- cused to participate in counsel- ling. Consent to undergo treat- ment during period of probation must be clear on record before court proceeds to order it. R. v. T. (R.) (Apr. 12, 2011, Ont. S.C.J., Goodman J., File No. 160/07) 94 W.C.B. (2d) 318 (18 pp.). Accused's subjective fear was not mitigating factor Accused appealed his sentence of six years imposed after he was convicted of attempted murder, aggravated assault and uttering death threat. Crown conceded appeal for aggravated assault based on Kienapple principle. Accused alleged that trial judge failed to consider fact that he acted out of fear as mitigating factor. Leave to appeal granted, concurrent sentence of three months for aggravated assault and conviction set aside, appeal otherwise dismissed. Accused's subjective fear was not mitigat- ing factor. Sentence of six years was not manifestly unfit. R. v. Cham (Apr. 21, 2011, Ont. C.A., Weiler, Blair and Epstein JJ.A., File No. C50406) 94 W.C.B. (2d) 278 (3 pp.). Charter of Rights SEARCH AND SEIZURE Intrusions on accused's privacy and bodily integrity and dignity were not severe July 11, 2011 • law Times Application by accused, who was charged with impaired care and control of motor vehicle and for having care and control while his blood alcohol level was above legal limit, to exclude evi- dence against him because ar- resting officer did not have rea- sonable and probable grounds to believe that he was impaired by alcohol. If his rights under Canadian Charter of Rights and Freedoms were not violated he admitted Crown's case against him. Police were contacted by motorist who saw accused driv- ing inerratic manner. Accused was arrested for impaired care and control after police saw him exhibit signs of impair- ment. His breathalyzer readings were 191 and 210. Application dismissed. Accused convicted of both offences. Indicia of impairment observed prior to accused's arrest and demand for breath samples, even if as- sessed cumulatively and within all of circumstances, did not amount to objectively reason- able grounds that accused was impaired. Officer was therefore not entitled to arrest accused or to make demand. Her search of his car, her subsequent observa- tions of alcohol consumption and obtaining breath samples violated accused's s. 8 Charter rights. Evidence was not ex- cluded. Breaches were minor. Intrusions on accused's privacy and bodily integrity and dignity were not severe. Admission of evidence would not bring ad- ministration of justice into dis- repute. R. v. Bajwa (Feb. 25, 2011, Ont. C.J., Bloomenfeld J.) 94 W.C.B. (2d) 246 (14 pp.). Courts ABUSE OF PROCESS Abuse of process motion was collateral attack on court order Accused, charged with dis- obeying court order after she allegedly violated interim in- junction by attending within 500 meters of named clinic where abortion was performed, brought application to stay pro- ceedings on basis that further prosecution of her was abuse of process. Accused argued that prosecution should be barred from enforcing Order because Crown had not only breached its obligation to move matter forward expeditiously, but had also excluded, intentionally or negligently, accused from civil proceedings. Injunction had been in place for 17 years. Ap- plication dismissed. Given ac- cused's former solicitor's lack of clarity about his retainer re- lationship with accused court was unable to conclude that Crown was negligent in ex- cluding accused from meetings and settlement discussion, nor could it conclude that Crown intentionally excluded accused. Court was unable to conclude that Crown was intentionally delaying civil matter as delay seemed to be by agreement of all parties. It was difficult to conclude that accused's abuse of process motion was anything but collateral attack on court order.