Law Times

lAw Times • April 19, 2010 Once council decided to com- mence legal proceedings in re- lation to appellant, adversarial relationship between her and municipality came into being. Once decision to prosecute was made, auditors' mandate as having been exhausted, leaving them without further authority to proceed. By-law appointing W. to prosecute appellant did not constitute wholesale and unlawful delegation of authori- ty. Finally, council did not act in bad faith in enacting by-laws. Jackson v. Vaughan (City) (Feb. 12, 2010, Ont. C.A., Feldman, Cronk and Gillese JJ.A., File No. C50275) Decision at 176 A.C.W.S. (3d) 384 was affirmed. 185 A.C.W.S. (3d) 333 (39 pp.). Torts CONSPIRACY Plaintiff and competitors engaged in conduct that was unlawful in broad sense of word Action by plaintiff for payment of outstanding debt. Coun- terclaim by defendants against plaintiff and two competi- tors for damages for breach of contract and conspiracy. De- fendants were company and its two principals who entered into dealership agreement with plaintiff. Defendants were to be exclusive dealership for plain- tiff's products in particular area. Area had previously been ser- viced by first competitor before its dealership agreement was ter- minated. Plaintiff provided fi- nancing to defendant company. Defendant principals provided guarantees to plaintiff. Plaintiff continued to provide product to first competitor to distribute in competition with defendants. After defendants complained, plaintiff arranged to have first competitor supplied by second competitor rather than directly. Plaintiff also started to require defendants to pay for prod- ucts with certified cheques. Defendants' business never achieved expected level of sales and was ultimately brought to end. Plaintiff enforced security against defendants but were still owed $72,227.43. Action dis- missed; counterclaim allowed. Defendants were awarded $954,213 for general damages and $1,142,193 for prejudg- ment interest against plaintiff and competitors on joint and several basis. Defendants were also awarded $30,000 for pu- nitive damages against plaintiff only. Plaintiff and competitors had engaged in conduct that was unlawful in broad sense of word. Plaintiff was clearly in breach of contract. Second competitor breached its deal- ership agreement by selling products to first competitor for sale outside of second competi- tor's area. First competitor was not legally entitled to purchase plaintiff's products for sale in defendants' area. Plaintiff and competitors must have been aware of adverse impact that first competitor's ongoing sales would have on defendants. Plaintiff and competitors must have agreed to engage in sort of conduct that they in fact engaged in. Concerted actions and omissions of plaintiff and competitors were without legal justification. Plaintiff and com- petitors knew or ought to have known their conduct would cause injury to defendants. Agribrands Purina Canada Inc. v. Kasamekas (Jan. 6, 2010, Ont. S.C.J., Quigley J., File No. 44605/92; 44871/92) 185 A.C.W.S. (3d) 344 (107 pp.). ONTARIO CRIMINAL CASES Breathalyzer TIME ELEMENT Question of whether there was residual alcohol in accused's mouth was speculative Trial of accused for driving with blood alcohol level that was above legal limit. Police officer stopped accused for speeding. Officer smelled alco- hol on breath of accused. Ac- cused admitted that he drank one beer and that he came from bar. Officer made de- mand for roadside screening at 2:34 a.m.. Accused failed test at 2:39 a.m.. Officer arrested accused, informed him of his right to counsel, which accused declined to exercise and read him breath demand. Accused's breathalyzer readings were 122 and 115. Accused claimed that roadside test result was invalid because officer did not wait 15 minutes to administer test. Without evidence of road- side test results officer did not have reasonable and probable grounds that accused commit- ted offence and breathalyzer test results were inadmissible. Accused convicted. If his posi- tion was accepted then in every case where roadside screening device demand was made offi- cer would have to wait 15 min- utes to ensure that there was no possibility of residual mouth alcohol in accused's mouth. In absence of evidence that officer should be concerned about re- sidual mouth alcohol, question of whether there was residual alcohol in mouth was specu- lative. Officer had to wait 15 minutes before administering roadside device only if officer had actual evidence that such alcohol was present in accused's mouth. No such evidence ex- isted in this case. Crown there- fore proved offence beyond reasonable doubt. R. v. Chiu (Dec. 8, 2009, Ont. C.J., Wolder J., File No. 08- 3317) 86 W.C.B. (2d) 766 (11 pp.). Charter Of Rights FUNDAMENTAL JUSTICE Crown not under obligation to investigate defences that could assist accused Accused being charged with fraud and forgery for cheques drawn while employed as CFO at corporation. Police relying on forensic audit prepared for cor- poration for two year period in deciding to lay charges. Defence requesting second, independent CASELAW audit to be prepared at expense of corporation in order to prop- erly defend charge on basis he was entitled to amounts drawn as compensation. Crown agree- ing to arrange for corporation to fund second audit but dis- agreeing about scope of audit and only arranging for inde- pendent audit of two year pe- riod that is core to prosecution's theory. Second auditor reaching same conclusions as contained in first audit. Trial judge allow- ing defence application for stay of proceedings on basis that Crown's failure obtaining audit for time period broader than two years breached right to make full answer and defence. Trial judge holding that right to make full answer and defence includes right to have prosecu- tion investigate any non-fan- ciful or speculative defences at request of defence. Trial judge holding Crown had breached undertaking to provide full and independent second audit requested by defence. Crown appeal of stay of proceedings al- lowed. Accused persons do not have constitutional right to di- rect conduct of criminal investi- gations of which they are target. Responsibility for proper use of public resources and state pow- ers rests with prosecution and not defence. Crown not under obligation to investigate de- fences that could assist accused. Accused persons have constitu- tional right to fruits of criminal investigation and may use this material to raise defences or test strength of Crown's case. Sec- ond audit report here could be tested and challenged by foren- sic mechanisms such as cross- examination and calling defence evidence short of requirement on Crown to conduct investi- gation requested by defence to gather material to test Crown's case. Trial judge erred by find- ing there was ever Crown un- dertaking to obtain "full" audit in absence of evidence. No evi- dence in record to suggest audit was not "independent" and any challenge to independence can be conducted at trial. Crown appeal allowed. R. v. Darwish (Feb. 16, 2010, Ont. C.A., Doherty, MacPher- son and Armstrong JJ.A., File No. C47553) Appeal from 74 W.C.B. (2d) 611 allowed. 86 W.C.B. (2d) 730 (25 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Accused ordered to stand trial for second-degree murder Accused charged with second degree murder and aggravated assault. Accused and deceased entered argument. Accused fol- lowed deceased into bedroom and witness heard sounds of him beating deceased. When witness exclaimed that accused had killed deceased, accused attacked witness while stating words to effect that he should kill witness because of what he had seen. Witness received seri- ous facial injuries from beating he received. Accused ordered to stand trial for second degree murder. Apparent lack of mo- tive was not relevant as Crown www.lawtimesnews.com did not have to prove motive. While there was no evidence to prove motive for killing, there was evidence to provide reason why accused attacked deceased. Jury would be entitled to in- fer that accused had necessary intent to murder from consid- eration of nature and circum- stances of assault which could only be characterized as vicious and prolonged attack to head, neck and upper torso area of de- ceased. Jury could also reason- ably infer that accused attacked deceased with piece of marble tabletop. There was little if any evidence indicating accused and deceased were engaged in fight. R. v. Walters (Feb. 9, 2010, Ont. C.J., Lipson J.) 86 W.C.B. (2d) 776 (7 pp.). Sexual Offences SEXUAL ASSAULT Complainants' evidence was not credible, even when allowances were made for their age at time of alleged offences Trial of accused for several counts of sexual assault that in- volved twin sisters. Complain- ants lived in Toronto between July 1998 and March 2002 with their mother and their stepfather who was accused's brother. Fam- ily moved to Hamilton in March 2002. Their mother gave birth to another set of twins in Octo- ber 2002 and subsequently died from heart failure. To assist their stepfather to cope with death of his wife and two newborns complainants, who were then 10-years old, moved in with PAGE 15 their maternal grandmother and their aunt. Complainants visited their stepfather and newborn twins on weekends. In July 2003 stepfather was given custody of complainants when they were 11-years old. Complainants in October 2004 decided, when they were 12, that they wanted to live with their natural father and their stepfather allowed them to do so. Once they moved they did not have much contact with stepfather and his fam- ily. Complaint of sexual assault was made in March 2007 when complainants were 15-years old. Assaults were alleged to have occurred when they lived in Toronto with their mother and stepfather and when accused was alone with them. Accused de- nied that he was left alone with complainants and he denied as- saults. He was acquitted of all of charges. Complainants' evidence was not credible, even when al- lowances were made for their age at time of alleged offences. Ac- cused was credible and his evi- dence was not successfully chal- lenged on cross-examination. Stepfather testified that accused never babysat complainants. His testimony was credible and was not coloured by fact that accused was his brother. Having consid- ered evidence of complainants and evidence of accused and of his brother, court was left with reasonable doubt that accused committed offences. R. v. A. (G.) (Feb. 12, 2010, Ont. S.C.J., Backhouse J., File No. 056/09) 86 W.C.B. (2d) 800 (8 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. 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