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Law Times • January 18, 2010 Slegers v. Sullivan (Nov. 27, 2009, Ont. S.C.J., Brown J., File No. CV-09-383006) Order No. 009/335/005 (5 pp.). Employment Chief Financial Officer had no termination rights on relevant date Trial judge erred in ordering Magna to pay $1,643,461 to G.O. for breach of his employ- ment contract as Chief Finan- cial Officer of MEC, which was company in corporate con- glomerate known as Magna. Trial judge erred in law in find- ing that G.O.'s contract was both terminated and assigned at same time. Although G.O.'s employment with MEC ended on July 28, 2003, G.O.'s con- tract was assigned to affiliate MII in Magna and right to two- year retirement allowance was not triggered. When G.O. was terminated by MEC, he chose not to trigger two-year severance payment by agreeing to assign- ment of his contract. As such, he had no termination rights in his contract that existed on July 28, 2003, to enforce. Trial judge's award of two-year lump sum amount upon termination equivalent to two years salary was set aside. While there was some evidence that forbearance agreement was reached, there was little on record to suggest that G.O. had indefinite right to claim two years severance as long as he was not put into comparable position by Magna. When G.O.'s contract was as- signed time continued to run under it. G.O. was terminated after first three years of contract and was entitled to only one year of severance. Appeal allowed. Cross-appeal of trial judge's dis- missal of claim by G.O. against F.S., Chair of Magna, personally for negligent misrepresentation allegedly made by him to G.O. was dismissed on basis that no substantial wrong or miscarriage of justice had been shown. Orr v. Magna Entertainment Corp. (Nov. 6, 2009, Ont. C.A., Weiler, Sharpe and Rouleau JJ.A., File No. C48360; C48366) De- cision at 163 A.C.W.S. (3d) 770, 22 D.E.L.D. 223 was reversed. Order No. 009/313/062 (18 pp.). Evidence WITNESSES Answers to proposed questions were not covered by deliberative secrecy Certain paragraphs of memo- randum prepared by P. con- tained statements of fact and did not engage deliberative secrecy. Those paragraphs may be put before trial judge through evi- dence of P., who was compellable witness for purpose of admission of this evidence. It was for defen- dant insurers to elect whether to call P. as witness. Should defen- dant insurers choose to call P. as witness for purpose of putting said paragraphs in his memo- randum into evidence, counsel for plaintiffs shall be entitled to pursue line of questioning with P. focused on whether, in rec- ommending approval of overall acquisition, he or his staff con- sidered if participating account transactions complied with ss. 458 to 464 of Insurance Com- panies Act (Can.). Answers to questions of that nature were matters of fact not covered by deliberative secrecy. Certain contents of L. memorandum engaged deliberative secrecy. Ac- cordingly, L. memorandum was directed not be admitted into evidence at trial. Jeffery v. London Life Insurance Co. (Nov. 20, 2009, Ont. C.A., O'Connor A.C.J.O., Laskin and Cronk JJ.A., File No. C51159) Decision at 181 A.C.W.S. (3d) 938 was reversed in part. Order No. 009/327/096 (4 pp.). Financial Institutions LETTERS OF CREDIT Decision finding bank liable for payment under irrevocable and transferable letter of credit upheld on appeal Payment declined. Motions judge did not err in granting summary judgment in favour of U. in holding bank liable for payment under irrevocable and transfer- able letter of credit issued by it for benefit of J.S.. Transfer to U. of Letter of Credit was valid and effective. As transferee, U. was entitled to claim directly against bank. Alleged discrepancies were not sufficiently material to justify bank's refusal of payment. Mo- tions judge did not commit re- versible error in its award of costs to U. before damages trial was held nor did motions judge err in exercising her discretion to make Sanderson order in circumstances of this case. Universal Stainless & Alloys Inc. v. JP Morgan Chase Bank (Nov. 13, 2009, Ont. C.A., Weiler, Sharpe and Rouleau JJ.A., File No. C49577) Decision at 170 A.C.W.S. (3d) 393 was affirmed. Order No. 009/320/037 (27 pp.). Injunctions INTERLOCUTORY RELIEF Interim relief refused in oppression action Respondent corporation incor- porated by three shareholders for development of multi-storey building. Land acquisition mort- gages and financing expired. Permanent financing necessary. Respondent shareholders elected to accept $9,000,000 financ- ing proposal requiring injec- tion of cash from shareholders. Applicant shareholder opposed proposal, preferring alternative he obtained November 2009. Respondents accepted first pro- posal, electing to raise capital by issuance of additional shares for subscription. Applicant refused to participate in subscription, alleging that effective dilution of his ownership interest amounted to oppression. Applicant moved for interim injunction, includ- ing restraining issuance of new shares, and proceeding with fi- nancing. Applicant also sought orders including that respon- dents sell their shares to the ap- plicant, or that parties partici- pate in shot gun sale at court's direction. Interim relief motion dismissed. Legitimate and com- pelling purpose for issuance of shares. Permanent financing CASELAW necessary and in interests of cor- poration. Dilution of applicant's shareholding self-imposed, since could have participated in share subscription. Imposition of buy/ sell order would import shot gun provisions not agreed to, and effectively be final relief. No irreparable harm where central claim for damages could still be prosecuted at trial of oppression claim, even after new shares is- sued. Corporation's undertaking, i.e. development of building for lease at reasonable return, war- ranted protection. Tullio Developments Inc. v. 2177314 Ontario Ltd. (Dec. 4, 2009, Ont. S.C.J., Hockin J., File No. 64621) Order No. 009/342/011 (7 pp.). ONTARIO CRIMINAL CASES Breathalyzer PRESUMPTION — "EVIDENCE TO THE CONTRARY" Amendments to s. 258(1) of Criminal Code operate retrospectively Amendments to s. 258(1) of Criminal Code alter eviden- tiary requirements for defences to offence of driving "over 80". Trial of accused for a charge of "over 80" commenced in June 2008. Trial adjourned to July 2008 after Crown indicated a desire to cross-examine defence toxicology expert. Prior to sec- ond trial date Criminal Code amendments came into force that required accused to establish malfunction or error in opera- tion of breath test instrument as precondition to raising "evidence to the contrary" to rebut pre- sumption of accuracy of breath tests. Amendments to s. 258(1) do not remove defence and only increase evidentiary require- ments of adducing "evidence to the contrary". Amendments that are evidentiary in nature are pro- cedural and operate retrospec- tively. Amendments apply to accused's trial for charge of "over 80". Crown appeal from acquit- tal allowed and new trial ordered to proceed on basis of Criminal Code as amended and currently in force. R. v. Dineley (Nov. 18, 2009, Ont. C.A., MacPherson, Cronk and Epstein JJ.A., File No. C50525) Appeal from 83 W.C.B. (2d) 345 allowed. Order No. 009/323/031 (13 pp.). Charter Of Rights SEARCH AND SEIZURE Police engaged in racial profiling Application to exclude evidence. Police alleged accused ran a red light, their CPIC search brought up six "hits" so they detained him, searched him, arrested him for possession of marijuana and found cocaine under car seat. Ac- cused argued he had been racial- ly profiled. His friend, who had been following him in her car, corroborated his evidence that he did not run red light. Witness from police services confirmed www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM three of the CPIC hits officers "relied" on were not available in their vehicle. Accused, 26, had an extensive criminal record. When pulled over he was try- ing to call his lawyer but officers took his phone. Officers did not tell him why they had pulled him over and after arresting him did not advise him of his right to counsel. Application allowed. Officers lied about accused run- ning red light and about CPIC hits. Detention unlawful. Based on circumstantial evidence to a balance of probabilities, police racially profiled accused. Senior officer discussed his evidence with junior officer. Accused's ss. 8, 9, 10(a) and (b) Charter rights violated. Evidence excluded. R. v. Ahmed (Nov. 25, 2009, Ont. S.C.J., Kiteley J.) Order No. 009/335/038 (12 pp.). TRIAL WITHIN REASONABLE TIME Trial judge did not err in finding no breach of accused's s. 11(b) Charter rights Accused appealed convictions for impaired driving and "over 80". Trial ended 13 months after information was sworn. In set- ting continuation date for trial, Crown was available for five dates offered but defence coun- sel was not. Trial judge held that accused's s. 11(b) Charter rights were not breached. Accused ar- gued trial judge displayed pre- disposition to dismiss applica- tion when trial could not be completed on first trial date. Ac- cused argued trial judge erred in failing to provide adequate rea- sons for dismissing application. Appeal dismissed. No evidence against PAGE 15 to suggest that judge showed predisposition applica- tion. Reasons of trial judge were not adequate. While judge told counsel that he would provide further reasons, on return date he simply reiterated what he had said on first date. To extent there were reasons, they addressed only prejudice issue and it was not known what period of systemic delay judge found and whether there were any periods waived or neutral. It fell on this court to examine merits of s. 11(b) appli- cation. In circumstances of case, for time between start of trial and continuation date, it was not appropriate to stop clock on first date offered or first date offered on which Crown was available. Court not prepared to let clock run until continuation date given that accused's coun- sel was unavailable for seven dates offered over almost three months. In circumstances, it was appropriate to apportion two months and seven days to insti- tutional delay and one month to neutral time. Much of accused's stress came from being charged, not from delay. No restrictions on accused's liberty, as he was re- leased on promise to appear. No risk of impairment to accused's right to make full answer and de- fence. While there was some ac- tual prejudice to accused, it was minimal. Delay of nine months and 20 days was not unreason- able. Trial judge did not err in finding there was no breach of accused's s. 11(b) rights. R. v. Amyotte (Nov. 30, 2009, Ont. S.C.J., Durno J., File No. 2834/08) Order No. 009/337/057 (41 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. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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