Law Times

PAGE 18 Extraordinary Remedies PROHIBITION In light of existing dismissal order, there was bar to proceeding commenced by new information Two individual accused and corporate accused were charged with making uncon- scionable representation un- der Consumer Protection Act, 2002 (Ont.) while selling mo- tor vehicle to customer. Justice of the Peace dismissed charges against all of accused due to failure of prosecution to at- tend but did not grant certified copy of order to accused. New information was then sworn before different Justice of the Peace alleging very same of- fence that had been dismissed earlier. Accused brought ap- plication seeking order quash- ing summons issued pursu- ant to new Information and order of prohibition pre- venting further proceedings pursuant new Information. Summons issued pursuant new Information quashed and any further proceeding under that Information prohibited. Nothing turned on failure of the Justice of the Peace to grant certified copy of Order of Dismissal. In light of exist- ing Dismissal Order, there was bar to proceeding commenced by new Information. Ontario (Registrar, Motor Vehicles Act, 2002) v. Shaikh (Jan. 20, 2011, Ont. S.C.J., Ricchetti J., File No. Crim Mot677/10; 678/10) 92 W.C.B. (2d) 389 (16 pp.). Sentence CHILD PORNOGRAPHY Accused sentenced to six months' imprisonment Sentencing of accused after he pleaded guilty to possession of child pornography. Accused was 25-years old. He did not have criminal record. He also was very intelligent but he did not have any social skills. He had never been in sexual rela- tionship. His sexual gratifica- tion came from viewing child pornography. Accused suf- fered from pedophilia, from generalized anxiety disorder and possibly from Asperger's Syndrome. He had mid-range collection of child pornogra- phy that consisted of 4,066 images and seven videos. His chances of rehabilitation were good. Accused was sentenced to six months' imprisonment. That term would satisfy prin- ciples of sentencing and would adequately denounce his be- haviour taking into consider- ation accused's special circum- stances. Imprisonment would be followed by 24 months of probation. Accused was also subject to DNA order, he was to be on sex offender registry for 10 years, his computer that contained pornography was forfeited and he was subject to prohibition order under s. 161 of Criminal Code. R. v. Brunton (Jan. 26, 2011, Ont. S.C.J., Lafrance-Cardinal J., File No. 09-40) 92 W.C.B. (2d) 421 (11 pp.). PREVENTIVE DETENTION Risk posed by accused to society could not be controlled now or in future Appeal by accused from decision that found him to be dangerous offender and that sentenced him to indeterminate sentence. Accused received this sentence after he was convicted of aggra- vated assault of woman he had been dating. He claimed that sentencing judge erred in ex- cluding the possibility that risk to public that he posed could be managed in community. Appeal dismissed. Judge prop- erly concluded, based on record before him, that risk presented by accused was not manageable in community. Accused could only be managed in communi- ty if he was subject to constant supervision. Such option was neither possible or reasonable. Court agreed with assessment that risk posed by accused to society could not be controlled now or in future. R. v. Ward (Jan. 31, 2011, Ont. C.A., Doherty, Laskin and Gillese JJ.A., File No. C47163) O92 W.C.B. (2d) 346 (3 pp.). Sexual Offences SEXUAL INTERFERENCE Counsel clearly did not properly prepare for trial Accused appealed his convic- tions for three counts of sexual interference on basis of ineffec- tive legal counsel based primar- ily on counsel's failure to watch video recordings of interviews of the complainants and other witnesses prior to trial and his failure to interview two wit- nesses suggested to him by the accused. Appeal allowed and convictions set aside, charges stayed because Crown did not seek new trial. Counsel clearly did not properly prepare for trial, fact that he practically admitted when cross-examined for appeal because it was very busy time in his practice. Trial was simply not fair trial for ac- cused. R. v. McKoy (Jan. 18, 2011, Ont. C.A., MacPherson, Sharpe and Juriansz JJ.A., File No. C48358) 92 W.C.B. (2d) 443 (3 pp.). TAX COURT OF CANADA INCOME TAX Appellant entitled to claim restricted farm losses related to breeding Arabian horses M. was in business of breed- ing Arabian horses. It required funds to attain level of herd that would make such venture viable. It devised plan whereby it sought investors as limited partners in partnerships which acquired Straight Egyptian Arabian horses and held them for very brief period of time before transferring them into company that would issue pre- ferred shares in return. Limited partners, appellant being one of them, could then transfer such shares into their R.R.S.P., using available R.R.S.P. funds. Based CASELAW on cost of horses and prepaid expenses, limited partners claimed restricted farm losses were then carried forward. Respondent denied losses on basis that there was no partner- ship as there was no business nor intention to make profit, or if there was partnership, on basis that expenses incurred to create loss were not reasonable, primarily due to horses being overvalued. Respondent also included in appellant's income amount he withdrew from his R.R.S.P. on basis that pre- ferred shares were not qualified investments for R.R.S.P. pur- poses or that, in any event, they had no value. M. had created legitimate financing arrange- ment that shifted business into many limited partnerships and companies, such business in- curring fair market value costs and reasonable expenses in manner that attracted tax con- sequences sought by appellant. Fact that no profit was made while in partnership form was not sufficient to deny this form of arrangement of its legiti- macy. This was cleverly crafted investment vehicle, premised on existence of real business. Values attributed to horses by M., and charged to partner- ships, had been set more for M.'s own purposes than to truly reflect their fair market value. Appellant was entitled to claim restricted farm losses based on partnerships' prepaid expenses as filed and based on fair market value of horses be- ing limited to $350,000 for XIII Partnership and $300,000 for R. Partnership at relevant times and expenses, including prepaid expenses, as filed by appellant. In computing ap- pellant's income arising from withdrawals from his R.R.S.P. amount to be included in in- come shall be reduced from $27,237 to $13,810. Teelucksingh v. Canada (Jan. 13, 2011, T.C.C., Miller J., File No. 2005-1930(IT)G) 197 A.C.W.S. (3d) 286 (50 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Supplementary affidavit impermissible attempt to introduce expert evidence through unqualified lay witness Motion by defendants to strike out supplementary affidavit filed in support of plaintiffs' motion to certify action as class proceeding. Statement of claim alleged that defendants' contact lens care solution negligently designed or manufactured and that it resulted in increased risk to users of developing rare eye infection called Acanthamoeba Keratitis ("AK") and other eye infections or conditions. Evidence exchanged between parties dealt only with pos- sible association between con- tact lens care solution and AK. Supplementary affidavit attached as exhibit a database published by Health Canada www.lawtimesnews.com entitled "Canada Vigilance Summary of Reported Adverse Reactions". Affiant purported to summarize information in database by stating that there were reports of adverse reac- tions associated with contact lens care solution including incidents of parasitic eye in- fections. Order that supple- mentary affidavit be struck out without prejudice to entitle- ment of plaintiffs to move, after certification to amend common issues on proper evidentiary ba- sis if there was admissible evi- dence to establish connection between use of contact lens care solution and infections other than AK. Plaintiffs engaging in impermissible case-splitting. Evidence in chief said noth- ing about relationship between contact lens care solution and other eye infections. Database hearsay. Database tendered as evidence of basis in fact for common issue asking whether defendants breached duty of care to class to ensure that con- tact lens care solution would prevent not only AK but other forms of eye infection. Affiant had no personal knowledge that complaints were made to Health Canada and not per- sonal knowledge of individual complaints. No basis for ad- mitting evidence under princi- pled exception to hearsay rule. No necessity. Appropriate evidence could have been in- troduced through individual members of proposed class or through expert evidence. Reliability of evidence had not been established and caveat to database indicated that reports were not evidence of any causal connection. Understanding of database would require expert evidence. Supplementary af- fidavit impermissible attempt to introduce expert evidence through unqualified lay wit- ness. Pollack v. Advanced Medical Optics, Inc. (Feb. 4, 2011, Ont. S.C.J., Strathy J., File No. 07-CV-333992CP) 197 A.C.W.S. (3d) 27 (11 pp.). SETTLEMENT Settlement a complete answer to appellant's claim Appeal from motion judge's dismissal of appellant's ac- tion on basis of settlement. Cross-appeal by respondent from motion judge's refusal to enforce release term of settle- ment. Appellant disputed mo- tion judge's finding that appel- lant understood the settlement and her lawyer was authorized to act on her behalf. Appeal dismissed. Cross-appeal al- lowed. Appellant was repre- sented throughout entire me- diation and personally signed settlement at end. Appellant accepted benefit payments pur- suant to settlement and did not return them. Settlement contained clear release and dis- missal order that made no ex- emptions. No evidence of any limitation on counsel's author- ity. Settlement was a complete answer to appellant's claim. Given motion judge's conclu- sion on enforceability, there was no basis to deny relief concern- March 28, 2011 • Law TiMes ing the release, which the ap- pellant refused to sign. Order was varied to allow relief sought by respondent. Respondent awarded $2,000 costs. Boulanger v. Great West Life Assurance Co. (Jan. 10, 2011, Ont. C.A., Doherty, MacPherson and Cronk JJ.A., File No. C51665) 197 A.C.W.S. (3d) 61 (6 pp.). Corporations DIRECTORS Individual defendant could not be fixed with personal liability in relation to putative trust under s. 15(1) of Load Brokers Regulations Plaintiff was carrier. Corporate defendant was load broker. Individual defendant was direc- tor and officer of corporate de- fendant. Plaintiff entered load brokerage arrangement with corporate defendant. Plaintiff performed services. Corporate defendant did not pay plaintiff. Plaintiff obtained default judg- ment against corporate defen- dant. Claims against individ- ual defendant were dismissed. Plaintiff failed to discharge burden in establishing exis- tence of trust under s. 15(1) of Load Brokers Regulations un- der Truck Transportation Act (Ont.), on corporate defendant. Individual defendant could not be fixed with personal liability in relation to putative s. 15(1) trust. Travelers Transportation Services Inc. v. 1415557 Ontario Inc. (Jan. 5, 2011, Ont. S.C.J., MacKenzie J., File No. CV- 05-002514-00) 197 A.C.W.S. (3d) 276 (9 pp.). Courts JURISDICTION Court's jurisdiction ousted by contract signed by athlete Applicant was one of Canada's top Paralympics athletes. Applicant signed contract with Athletics Canada and agreed to be bound by Canadian Anti- Doping Program ("CADP") administered by respondent centre. Contract provided for arbitration to resolve disputes between parties. Applicant was informed of violation of CADP after urine sample taken after Ottawa marathon tested positive for cocaine metabolites. Applicant ques- tioned finding before Doping Tribunal. Applicant argued that respondent centre had violated rights under Charter and human rights legislation for failing to ensure that sterile catheter was used for urine col- lection. Arbitrator found that anti-doping violation had oc- curred and imposed on appli- cant sport competition ineligi- bility for two years. Applicant exercised right to appeal to Court of Arbitration for Sport ("CAS"). CAS found that pro- hibited substance was not in applicant's system at time of competition and set aside peri- od of ineligibility. CAS upheld Doping Tribunal's determina- tion that Canadian Charter of Rights and Freedoms did not apply and Human Rights Code

• Cover
• Evidence Tossed
• Duty To Consult
• Focus On Energy Law/Environmental Law