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LAW TIMES / FEBRUARY 1, 2010 gration fraud on entitle- ment to annulment of mar- riage. Husband married wife in India and sponsored her to Canada. Husband learned wife only married husband to gain admission to Canada. Husband brought application for annul- ment. Parties brought motion for determination of question of law. Immigration fraud in itself was not basis for annulling mar- riage in Ontario but husband was still entitled to prove immi- gration fraud rendered mar- riage nullity under Indian law. Two Ontario Court of Appeal authorities were not in con- flict. First authority dealt with marriage in Ontario and found immigration fraud was not basis for annulment. Second author- ity dealt with marriage in Iran that was shown to be nullity under Iranian law. Any recon- sideration of earlier authorities would have to be done by Court of Appeal. Grewal v. Kaur (Nov. 19, 2009, Ont. S.C.J., Sproat J., File No. FS-08-0783-00) Order No. 009/337/036 (14 pp.). Injunctions INTERLOCUTORY RELIEF Motion for interlocutory injunction to enforce franchise contract dismissed Plaintiff owned dealerships. Defendant gave notice to plain- tiff that defendant would not renew contracts of dealerships on expiry. Plaintiff damages and claimed interlocutory injunction to enforce franchise contract. Motion was dismissed. Damages could compensate plaintiff for loss of goodwill. Lost jobs were not plaintiff's loss. Status quo was expiry of contracts at end of respective terms. Relief sought would amount to creation of new right that did not exist in con- tract. Balance of convenience favoured allowing contracts to run course on own terms. Hamburg Honda v. Honda Canada Inc. (Dec. 1, 2009, Ont. S.C.J., Ramsay J., File No. 12733/09) Order No. 009/337/035 (6 pp.). Municipal Law MUNICIPAL BOARD Board fully and carefully analyzed each of reasons stated by council M. applied to city to amend growth management plan. Following extensive public process municipal council gave written explanation for deci- sion refusing to amend plan. M. appealed refusal decision to Ontario Municipal Board as of right. Section 2.1 of Planning Act (Ont.), provides that when municipal board makes planning decision it "shall have regard to" municipal council decision and any supporting informa- tion and material the municipal council considered. Following hearing de novo board allowed M.'s appeal. City's appeal to Superior Court of Justice dis- missed. Words "have regard to" do not by themselves suggest more than minimal deference to decision of municipal coun- cil. Board has its own expertise in land use planning decisions and affords parties full hearing including opportunity to pres- ent expert evidence not before municipal council. Board has obligation to scrutinize coun- cil decision as well as mate- rial before council. Board must also explicitly consider specific reasons expressed by council. Board does not, however, have to find that council decision demonstrably unreasonable to arrive at opposite conclusion. In this case, Board fully and care- fully analyzed each of reasons stated by council in refusing application and made findings that supported Board's explicit reasons for arriving at different conclusion. It made no error and appeal dismissed. Ottawa (City) v. Minto Communities Inc. (Nov. 13, 2009, Ont. S.C.J. (Div. Ct.), Matlow, Kent and Aston JJ., File No. DC-09-001527-0000) Order No. 009/330/021 (15 pp.). Professions BARRISTERS AND SOLICITORS Term in order providing that Legal Aid Ontario would vet and approve bills did not preclude operation of s. 9 of Solicitors Act (Ont.) Accused was charged with murder. He did not qualify for funding for his defence by Legal Aid Ontario. Accused obtained Rowbotham order directing Attorney General to fund defence at Legal Aid Ontario tariff rates. Order was amended to allow accused to retain counsel of choice not on basis of tariff. Defence coun- sel was required to present budget of legal cost and fees. Counsel submitted statements of account. Attorney General made payment on understand- ing that counsel had prepared budget and accounts were being reviewed by Legal Aid Ontario. Attorney General learned that no one was assessing reason- ableness of work done by coun- sel. Attorney General's applica- tion for order for assessment of accounts of counsel pursuant to provisions of Solicitors Act (Ont.), was allowed. Payment by Attorney General did not preclude court from referring matter for assessment in view of special circumstances of case. Attorney General raised concern as to compliance of counsel with requirements of amended order and conditions imposed therein. On at least two occasions accounts appar- ently exceeded budget. It was further asserted that accounts did not provide breakdown of number of hours or division of fees between lead and junior counsel. Circumstances con- firmed that no assessment of appropriateness of accounts of counsel was carried out. Appeal dismissed. Term in order pro- viding that Legal Aid Ontario would vet and approve bills did not preclude operation of s. 9 of Act, which contemplated assessments at request of "third party" payors. Motion judge CASELAW correctly found that "special cir- cumstances" within meaning of s. 11 of Act existed here. Ontario (Attorney General) v. Hamalengwa (Dec. 4, 2009, Ont. C.A., Doherty, Moldaver and Epstein JJ.A., File No. C50590) Decision at 177 A.C.W.S. (3d) 515 was affirmed. Summary derived from lower court. Order No. 009/341/039 (2 pp.). ONTARIO CRIMINAL CASES Charter Of Rights FUNDAMENTAL JUSTICE Interveners' applications dismissed Accused was convicted of mur- der but Court of Appeal set aside his conviction and ordered new trial. Crown had planned to withdraw charge but accused insisted he be arraigned so that Crown would be obliged to disclose previously undisclosed and highly exculpatory materi- als that could have raised rea- sonable doubt as to his guilt. Three applications to intervene had been received and accused consented to interveners par- ticipating in his application. Interveners' applications dis- missed. Although there would be wider implications and impacts due to decision than those that would affect accused, Court had confidence that counsel for accused would be well able to deal with wider implications and impacts in their submis- sions, without formal participa- tion of interveners. R. v. Phillion (Nov. 24, 2009, Ont. S.C.J., Ratushny J., File No. 72-2737) Order No. 009/330/012 (6 pp.). RIGHT TO COUNSEL More should have been done to facilitate accused's access to counsel of choice Accused charged with "over 80". Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. When accused was asked if he wanted to contact lawyer, he responded "Yes", but indicated he could not call because he could not think of lawyer's name. Officer asked accused if he wanted to speak with duty counsel, but accused did not reply because he was not interested. Accused was not provided with phone book or lawyer directory to refresh his memory as to name of lawyer. Application dismissed. Officer knew accused wanted to speak with counsel and should have at very least made some effort to facilitate accused's search of counsel of choice. Because accused did not elaborate why he did not want to speak with duty counsel, officer acted prop- erly in not following up on issue. More should have been done to facilitate accused's access to counsel of choice. Officer acted in good faith when attempt- ing to get duty counsel for accused. Breath results had seri- ous negative impact on accused. Taking of breath samples was www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM non-intrusive. Charter breach was one of omission. Balancing breach and society's interest in having case tried on its merits, this was not appropriate case for Charter relief. R. v. Rego (Nov. 25, 2009, Ont. C.J., Vaillancourt J., File No. 002074) Order No. 010/004/029 (6 pp.). Disclosure GENERAL Disclosure ordered in driving "over 80" case Application by accused for disclo- sure. Accused stopped for speed- ing and failed roadside screening test. Provided two samples of his breath into Intoxilyzer 5000C, producing readings of 108 and 96. Accused charged with driv- ing "over 80". Defence sought disclosure of Intoxilyzer logs and records. Crown refused to pro- vide additional disclosure, stat- ing that it was clearly irrelevant. Defence expert testified self- checks performed by Intoxilyzer 5000C not necessarily sufficient to establish machine in proper working order in any particu- lar case. Application allowed. Accused required by amended s. 258 of Criminal Code to estab- lish operator error or equipment malfunction resulting in false reading. Could only be achieved through examination of opera- tor's abilities, whether strict pro- tocols recommended by alcohol test committee were followed and examination of whether recommended procedures were being followed. Crown directed to provide sample of standard alcohol solution for independent analysis, standard alcohol solu- PAGE 15 tion usage logs, simulator ser- vicing and certification records, Intoxilyzer 5000C service, usage and calibration records, down- loaded data from Intoxilyzer 5000C for time period bracket- ing accused's test. R. v. Muzuva (Nov. 2, 2009, Ont. C.J., Fraser J., File No. 08-14027) Order No. 009/335/020 (36 pp.). Evidence HEARSAY No error in allowing witness's preliminary inquiry evidence to be read in at trial Accused charged with murder and attempted murder. Crown witness agreed to testify against accused at preliminary inquiry in exchange for later release on bail. Defence unaware of bail agreement when cross-exam- ining witness at preliminary inquiry. Witness unavailable for trial. Witness's preliminary inquiry evidence read in at trial pursuant to s. 715 of Criminal Code. Accused con- victed. Accused's appeal against conviction dismissed. Defence had full opportunity to cross- examine witness at preliminary inquiry. Admission of evidence would not render trial unfair where defence made full use of "bail for testimony" deal at trial despite lack of cross- examination. Evidence in any case admissible pursuant to principled exception to hear- say rule. R. v. Lewis (Dec. 9, 2009, Ont. C.A., Moldaver, Armstrong and Rouleau JJ.A., File No. C47763) Order No. 009/344/015 (36 pp.). 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