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law Times • July 25, 2011 and documents in judicial re- view application. College mo- tion to quash application for judicial review was allowed. Ap- plicant would have opportunity to raise allegations and issues as part of committee hearing. Ad- ministrative remedies were not inadequate in case. Th ere was full right of appeal on issues of facts and law. Applicant would not be denied any remedy if ap- plication for judicial review was quashed. It was not necessary to deal with other motions. Haigh v. College of Denturists of Ontario (Apr. 20, 2011, Ont. S.C.J. (Div. Ct.), Aston J., File No. 291/10) 201 A.C.W.S. (3d) 286 (6 pp.). Civil Procedure COSTS Had father acted more promptly, costs mother incurred could have been avoided Endorsement regarding costs. Court endorsed consent order providing for extraordinary expenses of child. Mother had made off er to settle appeal on basis that was ultimately agreed upon in order made. Father did not initially accept off er, but rather accepted it just days before responding material was due to be fi led. Father was or- dered to pay mother costs fi xed in amount of $5,000. Had father acted more promptly, costs mother incurred could have been avoided. Jahn-Cartwright v. Cartwright (Mar. 25, 2011, Ont. S.C.J. (Div. Ct.), Kruzick J., File No. DC 10-0019-00) 201 A.C.W.S. (3d) 44 (4 pp.). SUMMARY JUDGMENT Plaintiff agreed by signing consent that plaintiff my well be portrayed in "disparaging, defamatory, embarrassing" ways Motion by defendant for sum- mary dismissal of plaintiff 's claim. Plaintiff commenced action for damages for breach of contract. Plaintiff appeared on defendant's television show. Plaintiff took off ence to way program was edited, aired and his treatment by television hosts. Motion granted. Plain- tiff signed consent acknow- ledging that defendant had sole and exclusive rights to taping and to edit and use taping in any way it wished. Plaintiff fur- ther agreed by signing consent that may well be portrayed in "disparaging, defamatory, em- barrassing" ways. Th ere was no evidence that consent and release were not entered into freely, voluntarily and without full knowledge of plaintiff . Turmel v. CBC (Dragon's Den) (Apr. 19, 2011, Ont. S.C.J., Arrell J., File No. CV-699- 2010) 201 A.C.W.S. (3d) 112 (5 pp.). TRIAL Primary concern was for integrity of trial process Trial concluded. Matter was under reserve. No reasons or judgment were issued. Plain- tiff s' counsel wrote letter to court that disclosed fi le of Texas patent agent that was dis- covered and that as result key witness for plaintiff s now had diff erent recollection of events than testimony disclosed. De- fendant sought to reopen trial to admit new evidence. Motion was allowed. Materials in fi le went directly to critical mat- ters at issue. File was necessary for completeness of trial testi- mony. Primary concern was for integrity of trial process. No signifi cant prejudice to reopen- ing was identifi ed. Varco Canada Ltd. v. Pason Systems Corp. (Apr. 15, 2011, F.C., Phelan J., File No. T-436- 05) 201 A.C.W.S. (3d) 96 (14 pp.). Courts JURISDICTION Small Claims Court had jurisdiction to determine who could appear before it Respondent commenced pro- ceedings in Small Claims Court against applicant. Respondent's representative was paralegal. Applicant's motion to prevent respondent's representative from representing respondent in pro- ceedings was dismissed. Appli- cant sought judicial review. Ap- plication was dismissed. Th ere was no breach of natural justice. Small Claims Court had juris- diction to determine who could appear before it. Pardar v. McKoy (Apr. 21, 2011, Ont. S.C.J. (Div. Ct.), Wilson, Swinton and Low JJ., File No. 213/10) 201 A.C.W.S. (3d) 70 (3 pp.). Mortgages CO-OWNERSHIP Bank had no obligation to search through information of affiliates to confirm information provided by respondent spouse Respondent spouse mortgaged matrimonial home without applicant's knowledge or con- sent. Respondent spouse used mortgage fi nancing for own use. Applicant argued mort- gage was not enforceable. Ap- plicant claimed respondent bank was aware respondent spouse was spouse as result of prior dealings between bank's affi liate and spouses. Bank did not register mortgage until after bank had notice of spousal status. Application was dismissed. Applicant was not entitled to have mortgage set aside. Bank did not know of applicant's spousal status. Bank had no obligation to search through information of affi liates to confi rm infor- mation provided by respond- ent spouse. Bank was not wilfully blind about spousal status. Persons involved in loan transactions had no rea- son to doubt declaration and there was not duty to under- take due diligence to confi rm declaration. Bank acquired its interests for value and acted in good faith. Bank advanced loan and received mortgage before receiving notice of ap- plicant's status. Bank was en- titled to protection of s. 21(2) of Family Law Act (Ont.) Pessotski v. Toronto-Dominion Bank (Apr. 14, 2011, Ont. S.C.J., Corbett J., File No. CV- 10-2916-00) 201 A.C.W.S. (3d) 263 (6 pp.). CASELAW Statutes INTERPRETATION Limitations Act defers running of limitation period until person reaches age of majority Limitations Act, 2002 (Ont.), contains provisions to protect minors. It defers running of limitation period until person reaches age of majority, except in cases where litigation guardian has been appointed. Had legisla- ture intended to insert additional exceptions to this rule, it would have clearly done so. Duchesne v. St-Denis (Apr. 26, 2011, Ont. S.C.J. (Div. Ct.), Polowin J., File No. 09- DV-1540) Decision at 179 A.C.W.S. (3d) 446 was af- fi rmed. 201 A.C.W.S. (3d) 258 (27 pp.). ONTARIO CRIMINAL CASES Appeal NO SUBSTANTIAL WRONG Even if journals were wrongly admitted, curative proviso applicable Accused charged with fi rst de- gree murder and forcible con- fi nement. Accused confi ned their fi ve-year-old grandson and six-year-old granddaughter in locked barren room for 12 hours a day. Grandson slowly died of starvation. Police seized accused's journals while exe- cuting search warrant. Seizure of journals not authorized by terms of warrant. Trial judge mentioned journals only once in lengthy reasons convicting both accused of second degree murder as showing animus of accused towards victim. Appeal from convictions dismissed. Even if journals were wrongly admitted, curative proviso ap- plicable. Evidence of accused's animus and guilt was over- whelming. R. v. Bottineau (Mar. 11, 2011, Ont. C.A., O'Connor A.C.J.O., Doherty and Blair JJ.A., File No. C47358; C47043) Decision at 72 W.C.B. (2d) 773 affi rmed. 94 W.C.B. (2d) 386 (46 pp.). Charter Of Rights RIGHT TO FAIR TRIAL Prosecutor breach accused's right to a fair trial by showing witness evidence extrinsic to his own Two accused, jointly charged with fi rst degree murder and kidnapping, applied for a stay or proceedings or mistrial, ex- clusion of evidence, removal of one of two prosecutors and continuation by judge alone. Accused allegedly abducted a man who had shorted them in drug deal and shot him fi ve times resulting in his death. Ac- cused alleged trial judge failed to give jury Vetrovec warning related to testimony of a co- accused turned Crown witness. Video evidence did not corrob- orate version of events testifi ed to by Crown witness as regards www.lawtimesnews.com PAGE 15 coming and going of accused at preliminary inquiry, but his evidence had changed at trial to match video evidence. Char- ter breach found, continuation of trial without a jury ordered subject to hearing from Crown. Prosecutor breached accused's right to a fair trial by showing witness evidence extrinsic to his own and by telling him at one point that he was wrong. Other remedies applied for were too drastic. R. v. Spence (Apr. 15, 2011, Ont. S.C.J., Howden J., File No. 09-225) 94 W.C.B. (2d) 356 (12 pp.). Evidence ADMISSIBILITY Substantive probative value, relevant to central issue of intent, in listening to audio recording Accused charged with fi rst de- gree murder. Accused applied to exclude audio recording of 9-1- 1 call made by deceased which recorded sexual assault and events leading up to her death. Accused intended to present evidence that he was impaired by alcohol or drugs and lacked requisite intent to commit mur- der. Accused argued that preju- dice outweighed any probative value. Application dismissed. Given that certain words spoken were open to interpretation, it would deprive jury of its ability to fi nd facts if jury did not have audio. Substantial probative value, relevant to central issue of intent, in listening to audio recording. Jury could be specif- ically warned that it should not speculate regarding inaudible portions of recording. Nothing could change fact that crime it- self was disturbing and of stark horror and audio recording in- creased any prejudicial eff ect only marginally as compared to transcript. Transcript would tend to engender feeling in jur- or that evidence was being hid- den or that jury was not being trusted. R. v. Hurd (Mar. 25, 2011, Ont. S.C.J., Sproat J., File No. CRIMJ(P) 3908/09) 94 W.C.B. (2d) 367 (13 pp.). CONFESSIONS AND ADMISSIONS Accused was told he could refuse to give statement Two accused charged with fi rst degree murder and forcible confi nement and convicted of second degree murder. On day of victim's death, one accused gave statement to police. Ac- cused a suspect but not given standard caution. Trial judge found statement voluntary and admitted it. Appeal from con- viction dismissed. Although not given standard caution, accused was told he could refuse to give statement and that there could be adverse consequences to speaking with police. Accused was not detained and was not subject of any threats or prom- ises. Statement was voluntary. R. v. Bottineau (Mar. 11, 2011, Ont. C.A., O'Connor A.C.J.O., Doherty and Blair JJ.A., File No. C47358; C47043) Deci- sion at 72 W.C.B. (2d) 773 af- fi rmed. 94 A.C.W.S. (2d) 386 (46 pp.). 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. 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