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Law Times • January 25, 2010 seeking payments for, among other things, attendant care, housekeeping and home mainte- nance benefits owing since 1998, as well as funding from case management services since Feb- ruary 2006. Appellant moved to amend statement of claim to in- clude claim for income replace- ment benefits and/or caregiver benefits and/or other disability benefits owing since January 31, 1997. Motion judge did not err in dismissing motion to amend on basis that claims being as- serted in amended claim were barred by two-year limitation period in s. 281(5) of Insurance Act (Ont.). Respondent insurer gave proper notice of its refusal to pay weekly disability benefits so as to trigger two-year limita- tion period in s. 281(5). Respon- dent's letter of January 23, 2000, specifically referred to ss. 279 to 283 of Act, which set out dis- pute resolution process and rel- evant time-limits and enclosed copies of those sections. Letter went on to refer to fact that ap- pellant had participated in two mediations under Act about his accident benefits claim. Respon- dent made reasonable assump- tion that appellant knew about dispute resolution process and invited inquiries if he did not. It was not necessary to go out- side letter in order to find that respondent had given appellant proper notice of its refusal to pay benefits. Appellant did not satis- fy his onus of establishing special circumstances to relieve against operation of limitation period. Golic v. ING Insurance Co. of Canada (Nov. 27, 2009, Ont. C.A., O'Connor A.C.J.O., Goudge and LaForme JJ.A., File No. C50187) Decision at 173 A.C.W.S. (3d) 424 was affirmed. Order No. 009/335/053 (10 pp.). Professions BARRISTERS AND SOLICITORS Solicitors did not have authority to make offer to settle on client's behalf Solicitors were solicitors for some of estate's beneficiaries. Solicitors sought charging order against elderly client living in Germany who was formerly client of so- licitors under guise of seeking to enforce facially-accepted offer to settle. Client retained solicitors to transfer sister to Germany. Client informed nephews June 2005 client would no longer contribute financially to litiga- tion commenced in Ontario. Nephews informed solicitors of client's withdrawal no later than October 2005. Solicitors did not inform client of costs deci- sion. Solicitors did not seek or obtain instructions from client to commence appeal of costs decision on client's behalf and did not seek or obtain client's instructions to make offer. Es- tate trustees brought application seeking advice or directions of court. Solicitors could not do so. Solicitors did not have author- ity to make offer on behalf of client because solicitors did not act for client at time. Solicitors did not have authority under retainer agreement or power of attorney to make offer to settle on client's behalf. When firm held itself out as client's solici- tor of record when retainer was terminated it was serious breach of duties as officers of court. Notwithstanding acceptance of offer by other parties, provision of offer requiring estate to pay client's inheritance to law firm did not bind client and was of no force or effect against client. Law firm put its interests ahead of former client's. Estate trustee was directed to distribute client's share of estate to client's sister in accordance with instructions signed by client with $8,875 in costs awarded to costs decision. Miksche Estate v. Miksche (Nov. 4, 2009, Ont. S.C.J., Brown J., File No. 01-0733/08) Order No. 009/309/041 (20 pp.). Torts NEGLIGENCE Ontario was not negligent when it deposited waste material on farm in 1960s In mid-1960's, Ontario Minis- try of Transportation deposited asphalt and concrete waste from highway reconstruction proj- ect on nearby dairy farm with owner's consent. In 1981, re- spondents purchased dairy farm. Soon thereafter, dairy cows be- gan to suffer serious health prob- lems and produced unusually low quantity of milk. Immediate cause was cows' unwillingness to drink enough water. Respon- dents claimed that root cause was Ontario's deposit of waste material on their farm, alleging that harmful chemicals in waste material migrated to wells on their property, thereby contami- nating well water and making it unpalatable for cows. Although tests showed that chemicals in well water did not exceed limits under Ontario Drinking Water Objectives for human consump- tion, respondents maintained that water was unfit for their cows. Respondents sued Ontar- io in negligence for depositing waste and then failing to remove contamination. Trial judge erred in finding in favour of respon- dents on both branches of their claim. Ontario was not negligent when it deposited waste material on farm in 1960s. Because risk of harm was not then reason- ably foreseeable, Ontario did not breach standard of care. Nor did Ontario have duty in 1980s or 1990s to eliminate waste mate- rial and remediate respondents' well. No duty existed under On- tario legislative regime protect- ing environment. Ontario was justified in not taking further ac- tion when both its investigation and investigation conducted nor respondents showed that no chemicals in respondents' well exceeded allowable provincial drinking standards. Berendsen v. Ontario (Dec. 1, 2009, Ont. C.A., Laskin, Ju- riansz and Epstein JJ.A., File No. C48391) Decision at 163 CASELAW A.C.W.S. (3d) 1070 was re- versed. Order No. 009/337/051 (32 pp.). ONTARIO CRIMINAL CASES Appeal PLEA OF GUILTY Application to withdraw guilty plea dismissed Appeal from sentence and appli- cation to withdraw guilty plea. Accused wished to pursue a re- lationship that was more than professional with her children's paediatrician who was not in- terested. Accused started going to his office frequently, sending him romantic emails, following him home from work, wait- ing in his driveway. After being cautioned by police she sent four more emails to complain- ant. After her arrest and release she went to his office to talk to him in contravention of release order. She was released with a non-communication clause and emailed complainant's lawyer for indirect communication with him. Accused pleaded guilty to criminal harassment, failing to comply with an undertaking and failing to comply with a re- cognizance. Trial judge imposed a suspended sentence and 12 months' probation concurrent on all counts. Sentence had been completed but accused, formerly a doctor in Latvia, was seeking permission to practice in On- tario. Accused sought to set aside her guilty plea, or a conditional discharge. Accused claimed she was told if she pleaded guilty she would receive a discharge. Appeal dismissed. Her counsel canvassed with her plea com- prehension issues. Accused personally entered her pleas of guilt. Accused thought she was not guilty because there was no physical harm. Not an essential element of offences under s. 264 of the Criminal Code that there be a risk of physical violence. Ac- cused was aware she was not giv- en a "guarantee" of a discharge. Plea was not equivocal. Accused freely admitted what she had done. Judge provided thorough reasons for sentence. No error, sentence not demonstrably unfit and well within range. R. v. Petrenko (Nov. 26, 2009, Ont. S.C.J., Durno J., File No. 3291/09) Order No. 009/335/029 (15 pp.). Mental Illness DEFENCE Conviction set aside and verdict of not criminally responsible substituted Accused appealed convictions for criminal harassment and fail- ing to comply with recognizance. Accused argued that guilty pleas were not voluntary and that trial judge failed to engage in sufficient plea comprehension inquiry. Accused admitted fresh www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM evidence in form of expert report from psychiatrist. Accused suf- fered from AIDS dementia and exhibited cognitive deficits with elements of paranoia and eroto- matic delusions. Expert report raised issue of whether accused was fit to stand trial and whether he should have been found not criminally responsible due to mental disorder. Appeal allowed, conviction set aside, verdict of not criminally responsible sub- stituted. Evidence of expert was admissible on appeal. At time of offences, accused suffered organ- ic psychosis and delusional dis- order and had no appreciation that his conduct was morally wrong. Accused's determination to proceed with appeal was irra- tional, as his entire sentence had already been served. Accused did not belong in jail, as he was physically and mentally ill. In- tegrity of criminal justice system required that conviction be set aside, but if accused remained untreated there was serious risk he may harm others. Nothing to suggest that admissions of fact were unreliable and not reason to order new trial on merits. No further evidence required on not criminally responsible issue. R. v. Fortune (Nov. 30, 2009, Ont. S.C.J., Molloy J., File No. SCA 177/07) Order No. 009/337/027 (19 pp.). Sentence DRIVING OFFENCES Sentence imposed for dangerous driving causing bodily harm was demonstrably unfit PAGE 15 Appeal by Crown from sen- tence imposed on accused after he pleaded guilty to dangerous driving causing bodily harm. Accused was given a 60-day intermittent sentence, two years of probation and three- year driving prohibition. Ac- cused consumed a considerable amount of alcohol. Victim and her family parked along a high- way in order to fix a flat tire. Accused crashed into her as she stood beside her van. Victim suffered serious injuries, among them the severance of one of her legs. Leg was recovered but it could not be reattached. Appeal allowed. Sentence im- posed was demonstrably unfit. It did not adequately reflect the applicable principles of denun- ciation and deterrence or the profound harm that the ac- cused caused the victim to suf- fer. Accused served the inter- mittent sentence but it would not be in the public interest to re-incarcerate him. He was in his late sixties and did not have a previous criminal record. He did have 10 previous speed- ing convictions. He was the sole supporter of his wife and daughter. Accused and his wife both had serious health prob- lems. Driving prohibition was increased from three to five years. This was a more mean- ingful way to promote general deterrence and denunciation. R. v. Belanger (Dec. 8, 2009, Ont. C.A., Laskin, Sharpe and Gillese JJ.A., File No. C50295) Order No. 009/343/055 (4 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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