Law Times

Law TiMes • May 16, 2011 investigation. Jury heard other admissible evidence that dupli- cated the inculpatory aspects of this statement and Crown had otherwise overwhelming case based on exclusive opportuni- ty, post-off ence conduct, other admissible statements. R. v. Czibulka (Jan. 31, 2011, Ont. C.A., Laskin, Sharpe and Epstein JJ.A., File No. C48343) 93 W.C.B. (2d) 274 (28 pp.). Evidence CREDIBILITY Verdict could not rest upon whether or not accused acquired evidence of his innocence Accused appealed his convic- tions for sexual assault and sexual interference on grounds that trial considered irrelevant evidence. Trial judge refer- enced failure of accused to ob- tain voluntary DNA test or call two witnesses that could have corroborated his story. Accused was charged with abusing his 12-year-old cousin on camp- ing trip. Accused was willing to take DNA test night he was confronted by his cousin's par- ents. Trial judge ruled that ac- cused's evidence must be reject- ed because he did not pursue getting DNA test that night. Appeal allowed, conviction set aside for new trial. Trial judge erred by considering irrelevant evidence as verdict could not rest upon whether or not ac- cused acquired evidence of his innocence or otherwise he was guilty. Trial judge did not perform proper test for assess- ing credibility as it was error to disbelieve accused because of considerable body of evidence that contradicted him. Trial judge off ended presumption of innocence and accused's right to silence. R. v. M. (J.) (Mar. 16, 2011, Ont. S.C.J., Ray J., File No. 09-1083) 93 W.C.B. (2d) 316 (7 pp.). Release From Custody JUDICIAL INTERIM RELEASE Court had little confidence that accused would comply with any conditions Accused fi led for further bail review on grounds of material change in circumstances as his mother was now prepared to serve as surety under condi- tions that would amount to virtual house arrest and that he had completed two courses at detention centre with social worker. Accused had exten- sive and serious record and was committed for trial on predicate off ences of 30 counts arising out of sexual activities with several teenage girls. Ap- plication dismissed. Court had little confi dence that accused would comply with any condi- tions as he was unreliable and his record included 15 breach off ences. Accused faced ob- struction charges alleging that he called his daughter from jail and asked her to get in touch with complainants/witnesses to have them recant stories they gave to police. Accused alleg- edly plied complainants with drugs and alcohol while he was forbidden to be in presence of such substances. R. v. Clouthier (Mar. 18, 2011, Ont. S.C.J., Ray J., File No. CR-10-55-BR) 93 W.C.B. (2d) 289 (5 pp.). Sentence ASSAULT Conditional discharge for mother who encouraged 15-year old son to engage in fist fight Accused sentenced to 15-month conditional discharge after she pleaded guilty to single count of common assault. Accused was present and encouraged her 15-year-old son to engage in fi st fi ght with complainant. When complainant gained upper hand she grabbed him, punched him and held him to allow her son to punch him. Accused was 40 years of age with no criminal record. R. v. Mattison (Feb. 15, 2011, Ont. C.J., Gage J., File No. 2009-W48434) 93 W.C.B. (2d) 297 (8 pp.). ONTARIO CIVIL CASES Civil Procedure COSTS Wife entitled to some costs where wife slightly more successful than husband Result of parties' matrimonial trial was that husband owed wife amount that was $464.64 more than his equity in matri- monial home. Wife made off er to settle. Wife sought costs. Husband was ordered to pay wife her costs fi xed in amount of $12,500 inclusive. Wife was slightly more successful than husband, and was entitled to some costs. Wife's off er did not attract costs consequences. Of- fer was for substantially more than judgment. Carter v. Carter (Feb. 2, 2011, Ont. S.C.J., Arrell J., File No. FS-06-299) 198 A.C.W.S. (3d) 919 (5 pp.). Employer was successful and entitled to costs, but amount sought excessive Application by employer for $175,000 partial indemnity costs. Cross-application by employee for $25,000 substan- tial indemnity costs. One-day hearing was held for employ- ee's application to have restric- tive convent in employment contract that barred him from competing for one year declared unenforceable. Employer ar- gued it was successful party so entitled to costs. Employee ar- gued employer behaved unrea- sonably. Application allowed in part; cross-application dis- missed. Employer was success- ful and entitled to costs, but amount sought was excessive. Employee to pay $17,000 costs in the cause. Mason v. Chem-Trend Limited Partnership (Feb. 8, 2011, Ont. S.C.J., Kruzick J., File No. 8352/09) 198 A.C.W.S. (3d) 923 (5 pp.). CASELAW Environmental Law ENFORCEMENT Minister complied with process mandated by s. 11 of Environmental Bill of Rights, 1993 (Ont.) Application for judicial review challenging promulgation of ss. 35, 53, 54, and 55 of Re- newable Energy Approvals Under Part V.0.1 Of Th e Act (Ont.). Impugned sections prescribed minimum setback requirements for wind energy facilities. Regulation came into eff ect following period of pub- lic consultation. Application dismissed. Minister complied with process mandated by s. 11 of Environmental Bill of Rights, 1993 (Ont.). Th ere was full public consultation and consideration of views of inter- ested parties. Given absence of clear evidence that 550-metre setback requirement was nec- essarily insuffi cient, Minister complied with requirement in s. 11 notwithstanding "precau- tionary principle" in statement of environmental values. Hanna v. Ontario (Attorney General) (Mar. 3, 2011, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Jennings and As- ton JJ., File No. 491/09) 198 A.C.W.S. (3d) 1003 (9 pp.). Family Law DOMESTIC CONTRACTS Solicitor not independent and any advice given not competent Wife sought to set aside sepa- ration agreement on ground that it was void as against pub- lic policy because parties were not separated. Wife also argued wife did not understand agree- ment and was not provided independent legal advice or fi - nancial disclosure. Wife argued wife was under duress caused by husband's threats. Solici- tor who provided independent legal advice was selected, paid and instructed by husband's lawyer. Solicitor appeared not to notice lack of fi nancial dis- closure and was unaware wife did not speak English and re- quired interpreter. Husband owed equalization payment to wife in amount of $102,059. Separation agreement was set aside. Wife was not provided independent legal advice. So- licitor was not independent and any advice given was not competent. Settlement was improvident. Parties were not separated at time of agreement. Husband took advantage of wife. Wife received approxi- mately $100,000 less than wife was entitled to under Fam- ily Law Act (Ont.). Wife was under duress as result of hus- band's abuse. Plea that wife did not understand agreement was made out. Th ere was com- plete failure to make fi nancial disclosure. Husband did not disclose to wife signifi cant as- sets and signifi cant debts exist- ing when separation agreement was made. Dayal v. Dayal (Mar. 4, 2011, Ont. S.C.J., Backhouse J., File No. 03-FA-12368 FIS) 198 A.C.W.S. (3d) 1053 (20 pp.). www.lawtimesnews.com Insurance LIABILITY INSURANCE Lawsuit did not relate to professional services with respect to laws in Canada Appeal by lawyer and member of Law Society from judgment dismissing lawyer's application for declaration that Lawyer's Professional Indemnity Com- pany had duty to defend and indemnify him with respect to action brought against him by former client. Application judge concluded that lawsuit did not relate to professional services with respect to laws in Canada. Appeal dismissed. Lawyer's representation that gave rise to action related to territory and laws of St. Kitts and Nevis. Ross v. Lawyers' Professional In- demnity Co. (Feb. 28, 2011, Ont. C.A., MacPherson, Mac- Farland and Epstein JJ.A., File No. C49866) 198 A.C.W.S. (3d) 1121 (3 pp.). Limitations TORT Plaintiff did not suffer damage for purpose of limitation period until it was determined that con- viction was wrongful Defendant represented plain- tiff on charge of sexual assault. Plaintiff was convicted. Appeal was allowed. New trial was ordered on ground plaintiff received ineff ective assistance of counsel. Crown withdrew charge at new trial. Plaintiff brought action for profes- PAGE 15 sional negligence. Defendants brought motion for summary judgment on ground limita- tion period expired. Motion was dismissed. Cause of action was not complete until plain- tiff could establish conviction was wrongful. Plaintiff did not suff er damage for purpose of limitation period until it was determined that conviction was wrongful. Statement of claim was issued within two years of discovery of claim. Beuthling v. Hayes (Feb. 28, 2011, Ont. S.C.J., Gray J., File No. 3166/10) 198 A.C.W.S. (3d) 1168 (13 pp.). VETERINARIANS Conclusions of Committee did not consistently flow from findings that it made Appeals by college from de- cision by committee acquit- ting veterinarian of allegations of professional misconduct. Committee found that vet- erinarian prescribed dog fl ea medication for cat. Appeals al- lowed. Decisions failed to meet justifi cation, transparency and intelligibility standard. Cred- ibility fi ndings by committee were made in conclusory man- ner and without reference to most material parts of evidence led. Conclusions of committee did not consistently fl ow from fi ndings that it made. College of Veterinarians of On- tario v. Hanif (Feb. 28, 2011, Ont. S.C.J. (Div. Ct.), Swin- ton, Herman and Harvison Young JJ., File No. 525/09) 198 A.C.W.S. (3d) 1171 (15 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. 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