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Law Times • march 15, 2010 his interpretation of s. 5(2) of Act, was reasonable. U.F.C.W., Local 1977 v. Zehr's Markets (Jan. 5, 2010, Ont. S.C.J. (Div. Ct.), Aston J., File No. 137/09) Applica- tion for judicial review from 96 C.L.A.S. 438 was dismissed. 184 A.C.W.S. (3d) 229 (10 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Slip and fall action against municipality dismissed for failure to comply with notice requirements Motion by defendant munici- pality for summary judgment dismissing plaintiff's action for failure to comply with notice requirements of s. 44(10) of Municipal Act, 2001 (Ont.). Plaintiff alleged he slipped and fell on municipal sidewalk on March 1, 2004. Plaintiff met with paralegal on March 8, 2004 who alleged that he draft- ed letter on that date addressed to municipal clerk's office with respect to injuries sustained by plaintiff when he slipped and fell on municipal sidewalk. Municipality contended that it did not receive letter. Plain- tiff's lawyer issued statement of claim on May 27, 2004. Original claim was dismissed as abandoned. In 2006, acting on own behalf plaintiff served "amended" statement of claim and dealt directly with city. No investigation of plaintiff's claim was done by municipality until 2006 following plaintiff's service of amended statement of claim. In course of review of docu- ments filed by plaintiff, parale- gal's notice letter was discovered in those documents in 2007. Court concluded that notice re- quired under s. 44(10) had not been sent as municipality first received notice of accident on May 27, 2004, over 12 weeks after accident was alleged to have happened. Issue whether s. 44(12) entitled plaintiff to pro- ceed with action. Municipality alleged prejudice as field inves- tigator and adjuster had no op- portunity to question employees or investigate conditions in area or take photographs within 10 days of original accident. City counsel lost opportunity to in- terview witnesses while memo- ries were fresh. Motion granted; action dismissed. Where notice has not been provided within 10 days municipality is presumed to have been prejudiced. Pre- sumption could be overcome by evidence establishing absence of prejudice. Court concluded that based on evidence of claims ad- juster and field investigator had timely notice been given, oppor- tunity to fully investigate would have been taken by them. Lost opportunities together with di- minished recall of those involved amounted to prejudice. Nor did circumstances here amount to reasonable excuse for plaintiff's insufficiency of notice. Accord- ingly trial was not required to determine whether plaintiff's action must be dismissed for failure to comply with notice requirement of act. Langille v. Toronto (City) (Jan. 19, 2010, Ont. S.C.J., Frank J., File No. 06-CV-306882PD1) 184 A.C.W.S. (3d) 237 (6 pp.). ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE No basis in fresh evidence to question accused's fitness to stand trial Appeal by accused from his convictions and sentence. Ac- cused was designated danger- ous offender. He provided fresh medical evidence about his con- dition. Appeal dismissed. There was no basis in fresh evidence to question accused's fitness to stand trial. Fresh evidence indi- cated that accused was capable of appreciating nature and qual- ity of his acts. Evidence did not address question of whether accused was incapable of un- derstanding that his acts were wrong according to ordinary moral standards of reasonable members of community. It also did not provide any basis upon which accused could demon- strate that he was not criminally responsible at relevant time. New evidence further did not provide basis to interfere with dangerous offender designation and to substitute long-term of- fender order. There was nothing to suggest that accused could be managed in community. R. v. Woodward (Dec. 22, 2009, Ont. C.A., Doherty, Rouleau and Watt JJ.A., File No. C41516) Appeal from 57 W.C.B. (2d) 653 dismissed. 86 W.C.B. (2d) 202 (6 pp.). Fresh evidence could have been tendered at trial and would not have affected result Application by accused to in- troduce fresh evidence in sup- port of his appeal. Accused was Sikh who was convicted of operating motorcycle without helmet, contrary to s. 104(1) of Highway Traffic Act (Ont.). Trial judge found that even though s. 104(1) violated free- dom of religion provisions of Canadian Charter of Rights and Freedoms, infringement was saved by s. 1 of Charter. At issue were safety issues of oper- ating motorcycle without hel- met. Fresh evidence consisted of survey conducted by World Sikh Organization of Canada in British Columbia of Sikhs who rode motorcycles without helmets, since such activity was permitted in British Columbia. Also included was report that was prepared based on survey results, affidavit about prepara- tion of survey, affidavit by presi- dent of Sikh Motorcycle Club of British Columbia about mo- torcycle use without helmet and evidence in response to respon- dent's materials. Respondent's materials included affidavit that criticized preparation of survey and that pointed out deficien- cies in it. Application dismissed. Due to frailties in survey it was impossible to conclude that even if believed material ten- CASELAW dered, when taken with other evidence adduced at trial, could have affected result. Survey was so deficient that it would not be of any use in assessing correct- ness of judge's decision about s. 1 of Charter. Fresh evidence could have been tendered at trial and it would not have af- fected result. R. v. Badesha (Jan. 14, 2010, Ont. C.J., Takach J., File No. 83382604) 86 W.C.B. (2d) 203 (33 pp.). Motor Vehicles DANGEROUS DRIVING Leave to appeal from decision upholding conviction refused Accused sought leave to appeal from decision, which dismissed his appeal from conviction for dangerous driving. Accused argued trial judge and appeal judge failed to consider issue of moral blameworthiness and whether accused was aware of risk and dangers manifested by his conduct. Application dis- missed. Trial judge held that fact that accused failed to confine vehicle to its own lane of travel was dangerous to other persons using highway. Trial judge re- jected accused's testimony that he could not recall drifting or swerving out of his lane of traf- fic. Accused admitted he should have read cautionary document indicating that drug he was taking may make him dizzy or drowsy. Witnesses' descriptions of accused's driving were consis- tent with dizzy or drowsy state of mind. Trial judge implicitly found that accused was aware of risk created by his conduct and its danger. Trial judge concluded that reasonably prudent driver in accused's circumstances at very least would have pulled over off road. Trial judge's reasons did not disclose error in his applica- tion of legal standard to facts. No significance to administration of justice respecting proposed ap- peal from conviction. R. v. Purvis (Jan. 14, 2010, Ont. C.A., Weiler J.A. in Chambers, File No. M38096; M38265; C51060) 86 W.C.B. (2d) 251 (9 pp.). Evidence CROSS-EXAMINATION Cross-examination here sought to elicit responses that were inadmissible hearsay Appellant convicted of shoot- ing death of former wife. De- ceased shot in parking lot of school where she was employed as teacher. Defence advancing theory that unknown twenty- year-old East Indian male shot deceased. Defence basing the- ory on eyewitness descriptions of twenty-year-old East Indian male observed at scene of shoot- ing. Deceased teacher at high school with some documented history of disruptive incidents between teachers and students. Defence developing theory through cross-examination of prosecution witnesses on topic of student on teacher violence at school that employed de- ceased. Defence asking prosecu- tion witness to recount contents of school incident reports when www.lawtimesnews.com witness not present at incidents. Trial judge not permitting cross-examination of witness. Trial judge's ruling upheld on appeal. Accused persons are per- mitted to adduce evidence that third party committed crime charged provided that evidence is relevant and otherwise admis- sible. Cross-examination here sought to elicit responses that were inadmissible hearsay as witness not present at incidents and purpose of evidence was to establish truth of fact that in- cidents had taken place. Also open to trial judge to exclude witness' answer as evidence not relevant or material as defence disavowed third party suspect theory. Appeal from convic- tion for first-degree murder dis- missed. R. v. Candir (Dec. 22, 2009, Ont. C.A., Lang, Juriansz and Watt JJ.A., File No. C47434) 86 W.C.B. (2d) 236 (59 pp.). HEARSAY Admission of deceased's ante mortem statements upheld on appeal Appellant convicted of shooting death of former wife. Deceased shot in parking lot of school where she was employed as teacher. Appellant and deceased in faltering marriage. Deceased describing appellant as abusive to others. Deceased telling oth- ers of plan to leave marriage and of fear of reprisal by appellant when she did. Deceased leav- ing appellant shortly before her death, leaving note indicating her unhappiness. Prosecution proffering several ante mortem statements made by deceased to PAGE 15 others stating her unhappiness in marriage, desire to leave mar- riage and fear of reprisal from deceased. Defence conceding at trial that deceased unhappy in marriage, wished to leave and in fact left marriage. Defence contesting admissibility of sev- eral statements and trial judge admitting portion of contested statements as circumstantial ev- idence of identity of killer and nature of criminal conduct. Tri- al judge's ruling admitting con- tested ante mortem statements upheld on appeal. Identity of killer and degree of criminal conduct live issues at trial and statements were circumstantial evidence that appellant was kill- er and killing planned and de- liberate. Evidence of deceased's wish to terminate relationship makes it more probable that ap- pellant had motive to kill her. Statements not immaterial or ir- relevant in light of defence con- cessions as concessions not for- mal admissions and statements probative of issues of identity and intent. Moral prejudice associated with statements de- scribing deceased's fear of repri- sal not high as no statement of actual assaultive behaviour. Trial judge's jury instructions ad- equate as made clear statements only proof of deceased's state of mind and can not be used as proof of truth of fact that appel- lant committed murder. Appeal from conviction dismissed. R. v. Candir (Dec. 22, 2009, Ont. C.A., Lang, Juriansz and Watt JJ.A., File No. C47434) 86 W.C.B. (2d) 236 (59 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. 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