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PAGE 18 and $192 as of December 2008 based on father's income of $22,620 while on employment insurance benefits. Father re- mained unemployed and had almost one year after permanent lay-off within which to secure new employment. Father also re- quired to pay monthly child sup- port for daughter from previous relationship. Order that father to pay monthly child support of $192 for 2009 and $209 on basis going forward. Appropriate to impute income of $26,520 to father during 2009 and $28,000 on basis going forward. Father had been intentionally unem- ployed from January 2009 while doing landscaping work for un- disclosed income. Father had not made bona fide effort to become employed full-time despite mar- ketability, skills and level of expe- rience. Finding of undue hard- ship in father's favour for 2009 and temporarily going forward. Support obligation for 2009 and on basis going forward reduced by 15% from table amount. Persaud v. Sankar (Jan. 8, 2010, Ont. S.C.J., Seppi J., File No. FS-08-00000367-0000) 183 A.C.W.S. (3d) 791 (15 pp.). Fiduciaries GENERAL Purchasing agent did not owe fiduciary duty to purchasing company Motion by defendant for sum- mary judgment dismissing plaintiff's claims for breach of fi- duciary duty, claim for account- ing and damages for overcharg- ing. Defendant was purchasing agent for number of companies and plaintiff was purchasing company that signed member agreement. Plaintiff acknowl- edged relationship between parties was commercial rela- tionship. Motion granted in part. No fiduciary duty owed by defendant to plaintiff. Must be underlying cause of action before court may grant remedy of accounting. No other basis other than fiduciary duty ad- vanced to allow court to order accounting. Not able to deter- mine from evidence whether there was overcharging. Issue of overcharging would have to be dealt with at trial. Farr Lumber Ltd. v. TruServ Canada Inc. (Jan. 8, 2010, Ont. S.C.J., Matheson J., File No. 8424/08) 183 A.C.W.S. (3d) 807 (8 pp.). Police LIABILITY IN TORT Negligent investigation claim not struck Motion by defendants for order striking out statement of claim and dismissing plaintiff's action as disclosing no reasonable cause of action. Action arose from po- lice stop of plaintiff and his being charged with dangerous driving and subsequent prosecution of that charge at which plaintiff was acquitted after trial. Plain- tiff admitted to having driven a transport truck onto high- way and colliding with pick-up truck however he alleged that he believed he was being hi- jacked and in life-threatening situation. Despite fact that plaintiff's story was believed by two police officers, plaintiff was charged with dangerous driving by defendant police sergeant M.. Plaintiff alleged negligent investigation. Moving parties contended that facts as pleaded by plaintiff established reason- able grounds for his arrest and prosecution and it was clear and obvious that claim of negligent investigation could not succeed. Plaintiff's claims based on neg- ligent investigation not struck. Premise of plaintiff's claim was that if investigation had been conducted properly facts which were thought to constitute rea- sonable and probable grounds would no longer have met threshold. Elements necessary to establish claim were pleaded with sufficient particularity to allow defendants to understand allegations being made against them. It could not be said that it was clear and obvious that this claim would fail and ac- cordingly claim of negligent in- vestigation was not struck. Ettinger v. Peters (Jan. 7, 2010, Ont. S.C.J., Gordon J., File No. C-33/09) 183 A.C.W.S. (3d) 722 (9 pp.). Insurance LIABILITY INSURANCE Claim against defendants gave rise to duty to defend Motion for determination of question of law as to whether P., insurance company, owed duty to defend M. and S. in ac- tion. Defendants M. and S. pur- chased homeowner's insurance from P. when they occupied property in 1999. Defendants had constructed new home on property which they sold to plaintiffs. Policy provided that P. would pay all sums to which defendants became legally liable to pay as compensatory dam- ages because of bodily injury or property damage. Policy re- mained in force until April 30, 2004 when policy was cancelled after M. and S. moved out of house following sale to plaintiffs. After plaintiffs took possession of property they discovered nu- merous defects and deficiencies with house and property. Plain- tiffs brought action against M. and S. for breach of defendants' contractual duty of care, legisla- tive, regulatory, fiduciary and other duties to plaintiffs and claimed compensatory damages for misrepresentations, non-dis- closure and negligence. P. con- tended that statement of claim was claim for breach of contract and breach of warranty and that nature of homeowner's liability insurance was to cover acciden- tal or unforeseen losses only and therefore breach of contract was not covered. P. also contended that policy specifically excluded loss claimed because policy was homeowner's, not builder's risk policy and did not cover damage caused by construction, relying on exclusion "damage to prop- erty you own, use or occupy". P. also contended that even if there were negligent representation not subsumed by breach of contract claim, "occurrence" would be representations made by insured CASELAW at time of agreement of purchase and sale at which point in time insureds owned property and were specifically excluded from claims arising from damage to property you own, use, occupy as a result of work done on them by you or anyone on your behalf". P. was obliged to defend M. and S. in main action. Insurance contract covered third party li- ability. It was obvious that claims upon policy would invariably be brought after occurrence. Only bar to lawsuit would be any ap- plicable limitation period with respect to cause of action being asserted. If occurrence took place within applicable policy period of contract of insurance duty to defend arose even though policy is no longer in force. Duty to de- fend is subject to express exclu- sions. Here there is no express exclusion for property that was owned, used, occupied or sold. Had past tense been employed in exclusionary words, defen- dants would be denied cover- age. With respect to whether breach of contract was covered by policy, if P. had wished to ex- clude liability to third parties for breach of contract it would have been simple to include exclusion in contract of insurance and they did not. Moreover pith and sub- stance of claim sounded in negli- gence as plaintiffs sought redress for negligent misrepresentation, construction and design. De- fendants were insured for these causes of action. Accordingly, third party coverage was broad and portable and claim against defendants gave rise to duty to defend M. and S. in main ac- tion. Poplawski v. McGrimmon (Jan. 7, 2010, Ont. S.C.J., McKin- non J., File No. 06-CV-34611; 06-CV-34611A) 183 A.C.W.S. (3d) 828 (14 pp.). Limitations DISCOVERABILITY Action clearly statute-barred Principal contracted with H.P. Inc. to refurbish air pre-heater systems. H.P. Inc. subcon- tracted to A.K. Ltd. portion of refurbishment work of Unit 7 system. A.K. Ltd. supplied trunnion bolts. Bolts were fab- ricated by A.S. Ltd.. Bolts were installed on Unit 7. Unit 7 suf- fered preheater failure as bolts sheared during operation. Sub- grade material used for bolts was found to be cause of failure. H.P. Inc. made good damage caused to principal. More than four years after failure of bolts H.P. Inc. commenced action against A.K. Ltd. and A.S. Ltd. seeking damages for breach of contract and negligence. A.K. Ltd. and A.S. Ltd. brought mo- tion for summary judgment dismissing action for contending that same was brought beyond applicable two-year limitation period. Motion allowed. No genuine issue trial statute-barred exists as to discovery by H.P. Inc. of cause of action against A.K. Ltd. and A.S. Ltd.. Action was clearly having been commenced more than two years following dates when H.P. Inc. could be considered to have discovered claim based www.lawtimesnews.com on admissions in own pleading. While H.P. Inc. made allegation of tort on part of A.K. Ltd. and A.S. Ltd. based on information discovered later, same was not pleaded as "stand alone" cause of action. Motions judge con- sidered information to be mere- ly additional evidence in sup- port of breach of contract and negligence claim. Subsequent discovery of additional evidence in support of claim did not toll running of limitation period. Summary judgment granted. Howden Power North America Inc. v. A. Swent & Sons Ltd. (Dec. 30, 2009, Ont. S.C.J., Brown J., File No. 08-CV- 352833PD3) 183 A.C.W.S. (3d) 707 (17 pp.). Real Property CONDOMINIUMS Motion to extend term of administrator allowed on terms Corporation sought order ex- tending term of court-appoint- ed administrator. Corporation sought order approving report for activities for specified period. Owners elected new board of directors. New board opposed motion and sought to have pow- ers re-invested in new board. Motion to approve report of administrator was approved. Ad- ministrator's accounts were fair and reasonable. Administrator made and continued to make good faith efforts to comply with court-ordered mandate. Admin- istrator's decisions were reason- able. Evidence did not support finding there was reasonable prospect for orderly self-gover- nance of corporation. Board did not retain professional assistance. Board did not formulate oper- ating and project expenditure plan that presented reasonable prospect of achieving orderly management of affairs of corpo- ration. Motion to extend term of administrator was allowed on terms. Term was extended to specified date and not indefinite- ly. Fund was to be made avail- able for board to retain prop- erty manager to develop budget. Board and property manager were to be provided unrestricted access to corporation's books and records. Cross-motion to termi- nate court-appointed adminis- tration was dismissed. York Condominium Corp. No. 25 v. Persaud (Dec. 31, 2009, Ont. S.C.J., Harvison Young J., File No. 06-CV-311985PD1) 183 A.C.W.S. (3d) 853 (12 pp.). ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE Application for production of records was fishing expedition Accused was convicted of mur- der. Accused moved for produc- tion of records concerning inter- preters used at his trial. Records were sought in order to support fresh evidence application aim- ing to establish that interpreta- March 1, 2010 • Law TiMes tion at trial was deficient. One interpreter at trial was not ac- credited and another had been criticized in other trials. Ap- plication dismissed. Accused's materials failed to show any air of reality to claim of inadequate interpretation at his trial. No affidavit evidence was filed to indicate whether any difficul- ties were perceived at trial. No evidence was identified that was contentious at trial and may have been affected by interpre- tation problem. Application was nothing more than fishing expedition that would prolong appeal and create unnecessary expense. R. v. Singh (Jan. 11, 2010, Ont. C.A., Moldaver, Simmons and Blair JJ.A., File No. M38142; C45215) 86 W.C.B. (2d) 5 (16 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Appeal from stay of proceedings allowed Crown appealed stay of pro- ceedings which was granted on basis that accused's ss. 9, 10(a) and (b) Charter rights had been breached. Accused was charged with impaired driving and "over 80". Trial judge found that there was 35 minute delay before ac- cused was informed of right to counsel and that officer did not have reasonable and prob- able grounds to arrest accused. Trial judge found that breaches were serious. Appeal allowed, new trial ordered. Although trial judge undertook thorough analysis of whether there was Charter breach, court could not see path of reasoning from breach through to remedy. No explanation provided as to why impaired driving charge ought not to have proceeded on civil- ian evidence, as it was obtained prior to police involvement and before any Charter breaches. It was not apparent from reasons why trial judge stayed both charges. Without reasoning to show that trial judge considered variety of factors to support remedy ordered, court was not in position to exercise proper appellate review. R. v. Luciani (Jan. 11, 2010, Ont. S.C.J., Lemon J., File No. SCA (P) 3452/09) 86 W.C.B. (2d) 18 (8 pp.). TRIAL WITHIN REASONABLE TIME Proceedings stayed for breach of s. 11(b) of Charter Accused charged with assault on elderly victim while occupying position of trust as caregiver. Ac- cused applied for stay of proceed- ings based on breach of s. 11(b) Charter rights. Case would be 21 months old on date set for trial. Net delay for consideration was 14 months. Application allowed, stay of proceedings granted. This was not complex prosecution, as allegations were straight forward and investigation was essentially complete at time charges were laid. Accused actively pursued scheduling pretrial conference with Crown, but was frustrated in those attempts by lack of avail- ability of Crown counsel. Two