Law Times

Law Times • apriL 12, 2010 in circumstances. On taking "good hard look", no genuine is- sue of material fact. Insuffi cient factual basis to infer improper motivation on defendants, or inference that defendants knew conduct was unlawful. Far from clear that entry and disable- ment was unlawful. Th ose were genuine issues for trial in related actions. More than bald allega- tions of motivations, delay and unlawfulness necessary to found conspiracy between lawyer and client. No evidence or pleadings establishing elements of claims in inducing breach of contract or intentional interference with contractual relations. New Solutions Extrusion Corp. v. Gauthier (Feb. 12, 2010, Ont. S.C.J., Karakatsanis J., File No. 09-CL-7978) 184 A.C.W.S. (3d) 1152 (11 pp.). PHYSICIANS AND SURGEONS Trial judge erred in finding physician negligent in failing to inform himself that new antiseptic could be ototoxic Two of Dr. M.'s patients on whom he had performed tym- panoplasty surgery at hospital had suff ered profound hearing loss as result. Cause was use of new antiseptic recently intro- duced by hospital. Hospital ac- cepted liability and settled with both patients. Hospital proceed- ed to trial, claiming that Dr. M. was also responsible, and sought contribution and indemnity from him. Trial judge erred in fi nding that Dr. M. was negli- gent in failing to inform him- self that new antiseptic could be ototoxic. Th ere was no basis on which to fi nd Dr. M. negligent in this case. Hospital's claim for contribution and indemnity was dismissed. Smith (Litigation Guardian of) v. MacRae (Feb. 2, 2010, Ont. C.A., Goudge, MacPherson and Blair JJ.A., File No. C49596) Decision at 170 A.C.W.S. (3d) 418 was reversed. 184 A.C.W.S. (3d) 1134 (13 pp.). Trusts And Trustees TYPES OF TRUST Defendant failed to rebut presumption of resulting trust Action by plaintiff for repay- ment of funds advanced by her to defendant during course of brief relationship. Follow- ing breakdown of her marriage plaintiff , aged 40, met defen- dant through internet dating website in spring 2008. Plain- tiff and defendant met person- ally and established intimate relationship shortly thereafter. In May and July 2008 plaintiff advanced defendant $24,000 to pay his business and credit card debts. Defendant made no repayment of money. Plain- tiff and defendant parted ways in August 2008 at which time plaintiff asked defendant for re- payment of money. Defendant contended that funds were giv- en to him gratuitously by plain- tiff as gifts with no requirement that they would ever have to be repaid. Judgment for plaintiff . Defendant failed to rebut pre- sumption of resulting trust by showing evidence of intention to make gift. Amounts involved were substantial and despite relationship of parties, it was improbable that sums of this magnitude would be advanced as pure unconditional gifts by one party to another after such brief acquaintance. Th ere was no clear agreement, written or otherwise, acknowledged by both parties that any of these advances were intended to be unconditional gifts. Conduct of defendant was manipulative and cynical. Plaintiff 's advance of money was based on her ex- pectation that she would have long-term relationship with de- fendant, otherwise she expected to be reimbursed for all funds advanced. Plaintiff was entitled to benefi t of legal presumption that all moneys advanced by her to defendant were loans, not gifts and funds provided must therefore be repaid. Hawkins v. Williams (Jan. 18, 2010, Ont. S.C.J., Stewart J., File No. CV-08-36528) 184 A.C.W.S. (3d) 1162 (8 pp.). FEDERAL COURT OF APPEAL Bankruptcy And Insolvency PROPOSALS Action allowed to continue against CRA Appellant commenced action in Federal Court against CRA, Superintendent of Bankruptcy and Trustee, seeking judgment against CRA only. Motion judge erred in striking out entire statement of claim on basis that it disclosed no reasonable cause of action. Court was not per- suaded that CRA, as creditor, could never owe duty of care to insolvent person in context of Bankruptcy and Insolvency Act (Can.). CRA had failed to dem- onstrate valid basis to exclude its duty of care or to shelter it completely from action in tort of negligence. Action allowed to continue against CRA. Edell v. Canada (Revenue Agen- cy) (Jan. 25, 2010, F.C.A., Na- don, Evans and Trudel JJ.A., File No. A-618-08) Decision at 174 A.C.W.S. (3d) 941 was reversed in part. 184 A.C.W.S. (3d) 898 (10 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Bag of marijuana was under seat of car and not in plain view Accused and another individual were charged with possession of marijuana for purpose of traffi cking and possession of proceeds of crime. Second in- dividual was acquitted at end of trial. Accused had met with other individual to sell mari- juana but they got in dispute CASELAW over price. Police passed by men when they were dealing in accused's car, ran car's plates and received weapon's caution. Offi cers pulled into driveway, blocking accused's car. As of- fi cer on driver's side exited his vehicle, individual co-accused exited from passenger side of car and after some disputed comments were made, he fl ed with offi cer in pursuit while ac- cused remained in driver's seat. Accused was told at gunpoint to exit his car and was handcuff ed and put in back of police cruiser. Evidence excluded, charges dis- missed. Court found that con- trary to offi cer's testimony, bag of marijuana was under seat of car and not in plain view. Court found that accused was detained from point passenger of scout car exited car and ordered his passenger to get back in car and that offi cer exceeded his power to detain for investigative pur- poses. Reasonable offi cer safety concerns did not justify hand- cuffi ng accused and putting him in scout car. Breaches were very serious and could not be justifi ed in any fashion as being in good faith. R. v. Smith (Jan. 29, 2010, Ont. C.J., Caldwell J., File No. 07- 10007296) 86 W.C.B. (2d) 536 (13 pp.). Evidence CROSS-EXAMINATION Trial judge did not err by terminating cross-examination of complainant Accused appealed his convic- tion for sexual misconduct against his child. Appeal dis- missed. Th ere was no request for voir dire at trial and no ob- jection by counsel to admission of certain out of court state- ments so those alleged short- comings could not undermine conviction. Trial judge gave very detailed reasons explaining why he accepted complainant's evidence and why he rejected those of accused. Court was sat- isfi ed that to extent there were diff erences in way trial judge as- sessed complainant's evidence, those diff erences arose from factors properly considered by trial judge when faced with dif- fi cult task of assessing evidence of child witness who alleges sex- ual misconduct by parent. Trial judge did not err by terminat- ing cross-examination of com- plainant prior to its completion but stopped cross-examination because of complainant's dis- tress at point where defence counsel acknowledged that he had almost reached end of his questions and indicated that he would assume that complainant could not explain any remain- ing inconsistencies. R. v. M. (C.) (Jan. 20, 2010, Ont. C.A., Sharpe, MacFar- land and Watt JJ.A., File No. C47851) 86 W.C.B. (2d) 524 (3 pp.). Extradition And Fugitive Offenders EVIDENCE Order that electronic images of hard drives of two computers be sent to France was upheld on appeal www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208 Th ird party appealed order that electronic images of hard drives of two computers seized from her be sent to France. Th ird party argued that warrants to seize computer were not sup- ported by reasonable and prob- able grounds. Appeal dismissed. Evidence that third party's common-law spouse, accused, was part of terrorist plot. Evi- dence showed that after accused became aware of newspaper ar- ticles discussing his alleged role in plot, there was "spike in his communications" with his ex- wife who was associated with terrorist group responsible for attack and that, at same time he was taking steps to have com- munications go undetected. Judge came to conclusion that there was practical and reason- able probability that accused was in communication by email with other members of terror- ist plot. Evidence that accused had access to computers and that he appeared to be trying to disguise his communications by using devices other than his own. Suffi cient basis for judge to have concluded that there was reasonable probability that accused was using two comput- ers to email others. France (Republic) v. Tfaily (Feb. 17, 2010, Ont. C.A., Goudge, Juriansz and Watt JJ.A., File No. C51118) 86 W.C.B. (2d) 564 (3 pp.). Prostitution GENERAL Accused's acquittal for communication for purpose of PAGE 15 obtaining sexual services of prostitute was reversed on appeal Crown appealed accused's ac- quittal on charge of communi- cation for purpose of obtaining sexual services of prostitute. Trial judge rejected accused's testimony that he was not so- liciting sexual services from prostitute. Trial judge acquit- ted accused based on defects in transcript and disagreement over accused's criminal record. Crown argued trial judge erred in his consideration of R. v. W. (D.). Appeal allowed, convic- tion entered. Judge accepted that Crown had proven be- yond reasonable doubt that ac- cused had committed essential elements of off ence charged. No evidence before trial judge to establish that transcript was inaccurate. Judge did not state that extenuating circumstances caused him to revise previous fi nding that solicitation oc- curred. Inaccurate transcript and incomplete certifi cate of criminal conviction did not go to essential element of of- fence. Judge erred in relying on inaccurate transcript and incomplete record of criminal conviction as "extenuating cir- cumstances" under W. (D.) to justify verdict of acquittal af- ter determination that Crown had proven essential elements beyond reasonable doubt. Ac- quittal was unreasonable, con- trary to law and misapplication of evidence. R. v. Hervieux (Feb. 3, 2010, Ont. S.C.J., Kane J., File No. 34/09) 86 W.C.B. (2d) 578 (12 pp.). LT Starting from $62.50 per month More value for your money! 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