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Law Times • February 22, 2010 action requesting assistance of court in compelling production of documents by respondents. Applicant sought enforcement of letters rogatory. Application was dismissed. Enforcement of letters rogatory was declined. Request was not moot because of date of completion of all discoveries. Much of delay was because of respondents' steps to oppose enforcement of letters rogatory. No eff ect was given to argument request was prema- ture. Court deferred to United States Magistrate Judge that pro- duction sought could be relevant to proceeding at stage. Applicant did not show documents were not otherwise obtainable. Oticon, Inc. v. Gennum Corp. (Dec. 22, 2009, Ont. S.C.J., Brown J., File No. CV-09- 380918) 183 A.C.W.S. (3d) 721 (11 pp.). Constitutional Law CHARTER OF RIGHTS Collection of evidence during child welfare investigation violated mother's rights under s. 8 of Charter Intake worker removed child from home. Intake worker re-en- tered home to take photographs. Society sought to introduce photographs and observations of mother's home made by intake worker and police offi cer short- ly after apprehension of child. Mother argued evidence was ob- tained as result of unreasonable search and seizure in breach of rights under Canadian Charter of Rights and Freedoms. Mother sought to exclude evidence un- der s. 24(2) of Charter. Mother did not consent. Lack of explicit objection did not equal consent. Worker's re-entry into home was illegal. Collection of evidence by worker and police offi cer during this stage of investigation was in violation of mother's rights un- der s. 8 of Charter. Evidence was excluded. Misconduct by society was not egregious but was seri- ously amiss. Intrusive nature of search violated mother's privacy and human dignity. Exclusion of evidence would not place child at future signifi cant risk of harm or prejudice. Chatham-Kent Children's Ser- vices v. K. (J.) (Nov. 30, 2009, Ont. C.J., Glenn J., File No. 40/08) 183 A.C.W.S. (3d) 749 (19 pp.). Family Law SUPPORT Father intentionally failed to utilize skills and training fully Parties had one child. After separation and divorce of par- ties child resided with mother. Court order required father to pay child support of $423 per month based on annual income of $49,200 plus extraordinary expenses of $456 per month. Fa- ther sought variation of order to reduce payments for child sup- port based on reported income of $23,750 and extraordinary expenses. Father argued he had never made income on which child support was based. He also claimed extraordinary expenses were unreasonable and he was not in fi nancial position to con- tribute towards athletic activi- ties of child. Mother opposed proposed variation. Variation allowed in part. Judge found fa- ther intentionally failed to uti- lize skills and training fully to maximize income. Father was ordered to pay guideline sup- port of $325 per month based on imputed income of $35,000. Father was further ordered to pay half of cost of child's ath- letic activities provided contri- bution did not exceed $231 per month which father had earlier acquiesced to pay. Wolfe v. Mitchell (Dec. 8, 2009, Ont. S.C.J., McDermid J., File No. F1276/07) 183 A.C.W.S. (3d) 796 (8 pp.). Injunctions INTERLOCUTORY RELIEF There was real risk defendant might destroy documents before discovery proceedings Plaintiff brought motion for Anton Piller relief against de- fendant. Plaintiff argued fi rst Anton Piller order was frustrated by action of defendant. Plaintiff sought order compelling defen- dant to permit plaintiff to foren- sically copy certain computers. Motion was allowed. Plaintiff es- tablished strong prima facie case against defendant and likelihood of serious damage. Plaintiff had convincing evidence defendant had in defendant's possession in- criminating documents or elec- tronic data and there was real risk defendant might destroy docu- ments before discovery proceed- ings. Plaintiff provided requisite undertaking as to damages. Bell Expressvu Limited Partner- ship v. Ramkissoon (Dec. 15, 2009, Ont. S.C.J. (Comm. List), Cumming J., File No. 09- 8094-00CL) 183 A.C.W.S. (3d) 820 (3 pp.) Professions BARRISTERS AND SOLICITORS Solicitor liable in tort and contract for breach of duty Plaintiff s retained defendant to act as solicitor for plaintiff s in sale of residential property. Transaction had problem con- cerning right-of-way. Plaintiff s claimed defendant was negligent in failing to protect plaintiff s' interests in relation to right-of- way. Plaintiff s established defen- dant failed to meet relevant stan- dard of practice and liability was made out. Defendant did not carry out retainer with reason- able competence and diligence. Defendant breached duty to ad- vise plaintiff s that right-of-way was badly drafted, that there was substantial risk of disputes with purchasers and that simple rem- edies were available. Plaintiff s lost something of value when plaintiff s lost right to park on Part 7 as result of defendant's negligence. Defendant was liable in tort and contract for breach of duty. Breach caused loss of market value of parking right-of- way over Part 7 fi xed at $10,000. Breach caused cost of litigat- ing against purchasers up until settlements were reached fi xed CASELAW at $18,617 plus yet as unde- termined amount for litigation costs in relation to purchasers during action stage of proceed- ings. Plaintiff s were entitled to prejudgment interest. Kalish v. Rosenbaum (Dec. 16, 2009, Ont. S.C.J., Code J., File No. 06-CV-318374 PD2) 183 A.C.W.S. (3d) 846 (19 pp.). ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE Reasonable possibility that cross-examination would yield material admissible as fresh evidence Accused was convicted of sexual- ly assaulting his wife. Trial judge rejected claim that allegations were fabricated by complainant to support custody claim and to remove children from province. After conviction complainant brought motion to terminate accused's access to children and to remove children from juris- diction. Accused sought to have fresh evidence admitted of com- plainant's post-conviction con- duct. Accused applied for order requiring that complainant be made available for cross-exam- ination. Application granted. Reasonable possibility that cross- examination would yield mate- rial admissible as fresh evidence or assist in developing fresh evidence. Cross-examination restricted to facts arising from post-conviction conduct, cus- tody and access dispute. Accused not to be present in room where cross-examination conducted. R. v. S. (T.) (Nov. 5, 2009, Ont. C.A., Laskin, Sharpe and Watt JJ.A., File No. M37668; C49472) 86 W.C.B. (2d) 2 (9 pp.). Defences DE MINIMIS NON CURAT LEX Continuation of assault and threatening charges would be unac- ceptable waste of time and resources Accused and complainant both medical doctors, former associ- ates. Dispute resulted in com- plainant being locked out of clinic. Complainant's retaliation included disparaging clinic as un- suitable for training of residents, resulting in clinic being dropped from university's residency pro- gram. Complainant alleged ac- cused angrily approached him at hospital, grabbed him by wrist and pulled him. Complainant also alleged implied threat. Ac- cused had written complainant letter apologizing. Complainant reported incident to hospital authorities, College of Physi- cians and Surgeons and police. Accused arrested for assault and threatening. Charges dismissed. No case for defence to meet. De minimus non curat lex. Contin- uation would be unacceptable waste of time and resources. R. v. Juneja (Nov. 25, 2009, Ont. C.J., File No. Duncan J.) 86 W.C.B. (2d) 29 (8 pp.). www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM JUSTIFICATION Bite justified under s. 34(1) or s. 37 of Criminal Code While removing protesters from Native lands-claim protest over subdivision development, of- fi cer H directed offi cers Y and L to arrest accused. Accused resisted and bit offi cer Y's fi n- ger. Accused charged with mis- chief, resisting arrest and assault causing bodily harm but trial proceeded on assault causing bodily harm and assault police offi cer. Not guilty. No objec- tive grounds to support charge of mischief. Accused's trespass was far away from any build- ings under construction. No objective basis for H to direct Y to arrest accused. Y conceded she did not have reasonable and probable grounds to arrest ac- cused. Arrest amounted to as- sault accused was entitled to resist. However, for that fi nding accused would have been found guilty of both counts. Police did not use excessive force. Bite jus- tifi ed under s. 34(1) or s. 37 of Criminal Code. Bite not griev- ous bodily harm and was not disproportionate to force being applied to her. R. v. Jamieson (Nov. 25, 2009, Ont. C.J., Nadel J., File No. 09-627) 86 W.C.B. (2d) 30 (17 pp.). Evidence DOCUMENTARY EVIDENCE Forms from gun dealers admissible as evidence tending to prove serial numbers of guns purchased PAGE 15 Th ree accused were charged with conspiracy to traffi c in co- caine. One of accused was also charged with 18 counts of trans- ferring fi rearms. In midst of tri- al, Crown sought to adduce cer- tain documents into evidence to be put to one of their wit- nesses. As part of investigation into accused's alleged associate in United States, police seized forms from two gun dealers that recorded which guns associate had purchased. It was copies of those forms that Crown wished to put to their witness, accused's alleged associate in United States. Documentary evidence admitted. Evidence in ques- tion was admissible as evidence tending to prove serial numbers of guns purchased either under principled exception to hearsay rule or as circumstantial evi- dence. Forms in question were of some probative value. Gun dealers who fi lled out forms were not compellable witnesses and would not have been able to remember serial numbers six years after fact anyway. Forms in question provided possible link between evidence of accused's alleged associate and evidence of 18 guns that were found in very area where accused was said to have told his alleged associate they were destined for. Fact that there was countervailing consid- erations did not mean that forms were so lacking in probative val- ue that they should be precluded from admission into evidence. R. v. Lucas (Nov. 2, 2009, Ont. S.C.J., Nordheimer J.) 86 W.C.B. 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