Law Times

Law TiMes • May 30, 2011 nearly cost him his employment. His legal expenses created such fi nancial pressure that he had to sell his car. Prolongation of pro- ceedings adversely aff ected his stress level and his sleep. In view of length of delay, interests pro- tected by s. 11(b) and prejudice experienced by accused, his right under s. 11(b) was infringed. Only appropriate remedy was judicial stay. R. v. Rambharack (Mar. 31, 2011, Ont. C.J., Green J.) 93 W.C.B. (2d) 471 (23 pp.). Mental Illness FITNESS TO STAND TRIAL Judge erred by relying upon doctor's report that did not focus upon accused's capacity at requisite time Accused appealed decision that he was not criminally respon- sible to stand trial for assault where he punched and spat upon two complainants. Accused was diagnosed with psychotic disor- der and substance abuse prob- lem. Judge based his decision on doctor's report of his psychosis which said he had little capac- ity to recognize what is socially acceptable or wrong. Accused argued that report did not focus upon his capacity at particular time off ence was committed. Appeal allowed, NCRMD ver- dict quashed. Guilty verdict was to be entered and matter should be remitted back for sentenc- ing. Judge erred by relying upon doctor's report that did not focus upon accused's capacity at requi- site time. Accused's consent was not determinative of NCRMD fi nding and intermittent nature of accused's psychotic condition compounded error of report. R. v. Cascagnette (Mar. 25, 2011, Ont. S.C., Allen J., File No. CR- 10-10000051-00AP) 93 W.C.B. (2d) 514(6 pp.). Sentence FRAUD AND FALSE PRETENCES Lawyer found guilty of defrauding bank sentenced to nine months incarceration Sentencing of two accused for fraud and uttering forged docu- ments. Both accused found guilty of defrauding bank in connection with fraudulent mortgage schemes totalling $363,750.00. Accused one was 51-years old with no criminal record. He was lawyer and had letters of support from family. Accused two was 63-years old with no criminal record. He was married and resided with his wife and son. Aggravating circumstances included amount involved in fraud, innocent par- ties being suspected, motivation being greed and sophistication and complexity of fraud. Miti- gating circumstances included guilty plea, diffi cult personal circumstances of accused, fam- ily dependence on accused, lack of criminal record, employment status, recovery of funds by bank. Accused one sentenced to nine months incarceration and accused two sentenced to 12 months' incarceration for fraud and 12 months' incarceration for uttering forged documents. Accused two's sentence refl ect- ed his more signifi cant role in fraud. R. v. Chowbay (Feb. 9, 2011, Ont. S.C.J., Boswell J., File No. 06-124812) 93 W.C.B. (2d) 550 (34 pp.). ONTARIO CIVIL CASES Agency INSURANCE AGENTS Time for appealing was from date judgment pronounced and not from date judgment signed and entered Discipline committee made de- cision following guilty plea to off ences. Committee found cor- porate appellant guilty of mis- conduct for operating net trust defi cit position and for failing to maintain registered books and records. Individual appellant was found guilty of concurring in misconduct. Individual appel- lant's certifi cate of registration was changed to unrestricted technical and fi nes were imposed. Appeal was dismissed. Appeal was stat- ute-barred. Notice of appeal was out of time. Time for appealing was from date judgment was pro- nounced and not from date judg- ment was signed and entered. G.B. Cragg Insurance Broker Ltd. v. Registered Insurance Bro- kers of Ontario (Mar. 9, 2011, Ont. S.C.J. (Div. Ct.), Cunning- ham A.C.J.S.C., Matlow and Lederer JJ., File No. 264/10) 199 A.C.W.S. (3d) 342 (5 pp.). Compensation For Victims Of Crime AMOUNT OF AWARD Board could reasonably conclude father of child shot to death did not suffer nervous shock Appellant made claim as victim of violent crime. Appellant's son was shot to death. Appellant was not present when shooting oc- curred. Board partially denied appellant's claim for compensa- tion as victim of violent crime. Board awarded compensation for funeral expenses. Board found legal criteria for mental or ner- vous shock were not made out. Appeal was dismissed. Board could reasonably conclude ap- pellant did not suff er nervous shock given evidence appellant did not witness shooting and did not seek psychiatric treat- ment for three years. Appellant did not prove board erred in ap- plying s. 17(1) of Compensation for Victims of Crime Act (Ont.). New affi davit did not satisfy test for fresh evidence. Archibald v. Ontario (Criminal Injuries Compensation Board) (Mar. 7, 2011, Ont. S.C.J. (Div. Ct.), Ferrier, Swinton and Wil- ton-Siegel JJ., File No. 49/10) 199 A.C.W.S. (3d) 424 (4 pp.). Family Law COSTS Wife entitled to costs on substantial indemnity basis to mark court's disapproval of husband's failure to comply with divorce order and supply information CASELAW Wife succeeded in motion to en- force terms of divorce order by re- quiring husband to pay amount owed wife from tax refund and by requiring husband to transfer interest in matrimonial home to wife. Wife succeeded in requiring husband to transfer half of LL- RISP and pension to wife. Wife resisted motion for credit for mortgage payments. Wife was substantially successful in mo- tions. Favourable outcome wife achieved was not discounted by divided success in calculation of amounts transferred to wife from husbands LLRISP and pen- sion. Proceeding was moderately complex. Husband precipitated motions by husband's contempt. Wife was entitled to costs on sub- stantial indemnity basis to mark courts disapproval of husband's failure to comply with divorce order and husband's failure to supply wife with information needed from pension adminis- trator to quantify amount order required husband to transfer to wife. Wife's costs were fi xed at $3,350 payable within 30 days. Costs were enforceable as support by Family Responsibility Offi ce. Cassidy v. Cassidy (Feb. 2, 2011, Ont. S.C.J., Price J., File No. 04- 03688) 199 A.C.W.S. (3d) 468 (24 pp.). Professions BARRISTERS AND SOLICITORS Denial of coverage for lawyer's claim due to non-compliance with territory limitation of policy justified Ruling on determination of rights under terms of Lawyers Professional Liability Policy. Lawyer was member of Law So- ciety of Upper Canada and St. Kitts. Lawyer commenced two actions in St. Kitts against for- mer client. Former client com- menced action against lawyer in Ontario for damages and injunc- tive relief in relation to his real estate development in St. Kitts. Policy denied lawyer coverage on grounds that he had not been performing professional services as defi ned in policy when he commenced actions against cli- ent outside of Canada. Denial of coverage for lawyer's claim due to non-compliance with terri- tory limitation of policy was jus- tifi ed. Given nature of actions commenced in St. Kitts, lawyer did not perform professional services with respect to laws of Canada. Ross v. Lawyers Professional In- demnity Co. (Dec. 12, 2008, Ont. S.C.J., O'Marra J., File No. 05-CV-300380 PD-1) 199 A.C.W.S. (3d) 620 (14 pp.). Wills And Estates ESTATE ADMINISTRATION Legislature's intention is to give priority to child support order over other debts Ruling regarding priority of debts of estate of deceased. De- ceased died intestate. Law fi rm claimed amount for legal fees and disbursements, and moth- er of deceased's child claimed amount for unpaid child sup- port. Estate was not large enough www.lawtimesnews.com to satisfy all of competing claims on it. Mother was given priority over law fi rm. Law fi rm received notice of outstanding child sup- port order before proceeding to mediation, and did not move for charging order at that time. Child support order predated existence of settlement proceeds by more than eight years. Leg- islature's intention is to give pri- ority to child support order over other debts. Greeley Estate (Re) (Mar. 16, 2011, Ont. S.C.J., Corrick J., File No. 01-3782/08) 199 A.C.W.S. (3d) 669 (5 pp.). FEDERAL COURT OF APPEAL Customs And Excise EXCISE TAX Court could not stop Minister from carrying out his statutory duty under s. 275(1) of Excise Tax Act (Can.) Federal Court Judge erred in dismissing motion brought by CRA to strike out application brought by TELUS on ground that it was plain and obvious that application had no possi- bility of success. In its applica- tion, TELUS sought to prohibit CRA from issuing assessments against TELUS for goods and services tax ("GST") on inter- national roaming fees charged by TELUS to its customers from October 2004. TELUS asserted that if it was assessed PAGE 15 GST, unfair and onerous obli- gations and fi nancial hardship would be visited upon it. Court could not stop Minister from carrying out his statutory duty under s. 275(1) of Excise Tax Act (Can.), to assess GST pay- able by law merely because do- ing so would impose unfair and onerous obligations and fi nan- cial hardships upon taxpayer. It was plain and obvious on facts alleged that TELUS's applica- tion for prohibition could not succeed. Application for prohi- bition was ordered struck out. Tele-Mobile Co. Partnership v. Canada Revenue Agency (Mar. 8, 2011, F.C.A., Blais C.J., Sharlow and Stratas JJ.A., File No. A-311- 10) Decision at 193 A.C.W.S. (3d) 406 was reversed. 199 A.C.W.S. (3d) 441 (6 pp.). Taxation INCOME TAX Cottage was not source of income Minister refused to accept rental losses claimed by appellant. Amount represented half of total expenses incurred by appellant. Expenses resulted from appel- lant's ownership of cottage. Ap- peal was dismissed. Tax Court of Canada did not commit er- ror in concluding profi t and loss experience would indicate ap- plicant's primary intention was not to make profi t from rental of cottage. Cottage was not source of income. Daoust v. Canada (Feb. 23, 2011, F.C.A., Letourneau, Na- don and Sexton JJ.A., File No. A-184-10) 199 A.C.W.S. (3d) 655 (5 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. 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. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• Second Chance
• Expert Immunity
• Focus On Criminal Law