Law Times

PAGE 18 to 2008 but arbitrarily reduced payments in December 2007. Father was ordered to pay child support of $550 per month commencing October 2009 but father failed to comply. Fa- ther also failed to comply with orders for financial disclosure. Mother brought application for child and spousal support based on father's alleged income of $130,000. Application allowed in part. Judge drew adverse in- ference from non-compliance with court-ordered disclosure. Evidence sought from father was likely to have exposed fi- nancial dealings and higher income attributed to father. Father's failure to comply with disclosure orders justified im- puting income on father. Father was capable of producing busi- ness revenue of $230,970 which was average of two years for which father had provided tan- gible evidence. Judge imputed on father's income of $76,990 on which child support was to be based, on assumption that legitimate business expense ac- counted for two-thirds of busi- ness revenue. Child support was fixed at $618 per month. Wife was also entitled to spousal sup- port considering that marriage lasted eight years and wife made reasonable efforts to be self-suf- ficient after separation but was unsuccessful. Spousal support was fixed at $1,800 per month. Minks v. Minksova (Sep. 1, 2010, Ont. C.J., Baldock J., File No. 1580/06) 193 A.C.W.S. (3d) 944 (7 pp.). Insurance AUTOMOBILE INSURANCE Defendant's insurer had duty to defend car rental company Motion by car rental company for determination of question of whether its insurer must re- spond first in action by plain- tiff for damages for injuries sustained in motor vehicle ac- cident. Defendant rented car from car rental company while her car was being serviced. While driving car rented from car rental company, defendant allegedly struck plaintiff. Car rental company submitted that defendant's insurer was obli- gated to respond first. It was declared that defendant's in- surer respond first. Defendant's insurer had duty to defend car rental company and indemnify up to its policy limits. Clear in- tent of amendments to Standard Ontario Automobile Policy was if driver was driving temporary substitute automobile and was involved in accident, owner's insurer must respond first. Nguyet v. King (Oct. 18, 2010, Ont. S.C.J., Belobaba J., File No. CV-09-388252) 193 A.C.W.S. (3d) 969 (7 pp.). Torts NEGLIGENCE Claim against manufacturer of saddles for fuel tank dismissed on motion for summary judgment Motion by defendant manufac- turer for summary judgment dismissing claim as against manufacturer. Plaintiffs had ex- ternal tank filled with fuel. Tank recently installed and supported on two saddles each of which had two leg. Saddle leg buckled and tank fell over causing fuel oil to escape. Manufacturer in designing saddles used steel that had certain deficiencies and did not meet specifications called for in design. Designer also re- sponsible for deficiency in that specifications provided by it to manufacturer did not call for thick enough steel given loads saddles were to bear. Action and all cross-claims as against man- ufacturer dismissed. Difficulty with respect to expert reports prepared on behalf co-defen- dant self contradictory in con- clusions that failure of tank sup- port system was combination of inadequate design and defective steel and that failure of saddle supports would have occurred regardless of deficiencies within steel. No evidence to suggest steel deficiency on its own could have caused buckling of saddle leg. Material contribution test did not apply. Not impossible to determine negligence and cau- sation. Responding parties had not put best foot forward. Self- contradictory reports of their own experts did not support genuine issue requiring trial. Report of manufacturer's expert unequivocal. Reports of co-de- fendant provided no analysis for tying steel deficiencies to issue of causation. Could not be said that legs would not have failed but for negligence of manufac- turer. Failure to explain internal contradiction in expert reports allowed court to conclude that inference that deficiency in steel somehow contributed to failure could not be substantiated and was without merit. Thwaites v. MacDonnell Fu- els Ltd. (Oct. 19, 2010, Ont. S.C.J., Bielby J., File No. 07- 085) 193 A.C.W.S. (3d) 1028 (15 pp.). FEDERAL COURT OF APPEAL Appeal STAY PENDING APPEAL Respondent would suffer irrepa- rable harm if stay granted Motion for stay pending appeal of order quashing decision taken by chief and five members of council to remove respondent from office of councillor to which he had been previously elected. Applicant did not directly chal- lenge any of findings of appli- cation judge but rather argued that its council was, pursuant to s. 35 of Constitution Act, 1982 (Can.), a legislative body equiva- lent to provincial legislature. Council subject to parliamen- tary privileges and immunities and expulsion of members from its council not subject to judicial review. Motion dismissed. Ques- tions raised not addressed in ju- dicial review application. Party may not raise in appeal new argument which was not raised in trial jurisdiction and in rela- tion to which it might have been CASELAW necessary to adduce evidence at trial. Respondent would suffer irreparable harm should stay be granted and balance of conve- nience overwhelmingly in fa- vour of respondent. Respondent being denied office to which he had been duly elected. Laboucan v. Little Red River Cree Nation #447 (Oct. 1, 2010, F.C.A., Mainville J.A., File No. A-273-10) 193 A.C.W.S. (3d) 705 (7 pp.). ONTARIO CRIMINAL CASES Appeal PLEA OF GUILTY Pathologist's highly respected expertise and opinion created very powerful reason for accused to agree to plead guilty Accused appealed conviction for infanticide. Accused gave birth to baby at home and its body was found in closet, wrapped in towel and plastic bag. Accused maintained that she did not know she was pregnant and had no recollection of giving birth. Based on opinion of pediatric pathologist, Dr. S, that baby was born alive and died of as- phyxia, accused pleaded guilty to infanticide. Given that Dr. S was considered premier pedi- atric pathologist, accused's de- fence counsel did not feel that devoting her funds to retaining forensic pathologist would be of value. Accused agreed to plead guilty but refused to plead to something that would indicate that she was aware of pregnancy or that she wilfully caused death of child. Accused sought to have guilty plea set aside. Appeal al- lowed, guilty plea set aside, new trial ordered. Death of accused's child was reviewed and findings by eminent pathologists dem- onstrated serious errors by Dr. S. There was never any reliable pathological evidence to sup- port conclusion that cause of baby's death was asphyxia, or anything else. Crown conceded that new expert evidence met test for fresh evidence. Dr. S's highly respected expertise and his opinion that accused com- mitted infanticide created very powerful reason for accused to agree to plead guilty rather than face trial. R. v. F. (C.) (Oct. 20, 2010, Ont. C.A., Rosenberg, Cronk and Epstein JJ.A., File No. C49535) 90 W.C.B. (2d) 437 (6 pp.). Without pathologist's flawed opinion, accused would never have pleaded guilty Accused appealed conviction for manslaughter. Accused gave birth to baby at home and its body was found in toilet bowl. Accused maintained that she did not know she was pregnant and that baby was stillborn. Based on opinion of pediatric pathologist, Dr. S, that baby was born alive and died of asphyxia, accused was charged with sec- ond degree murder. Accused pleaded guilty to manslaughter. www.lawtimesnews.com Accused pleaded guilty because she felt she was burden on her family, was horrified of going back to jail, was afraid of con- sequences of murder conviction and believed that Dr. S's opin- ion would be accepted over her story. Accused sought to have guilty plea set aside. Appeal al- lowed, guilty plea set aside, new trial ordered. Death of accused's child was reviewed and findings by eminent pathologists dem- onstrated serious errors by Dr. S. There was never any reliable pathological evidence to sup- port conclusion that cause of baby's death was asphyxia, or anything else. Crown conceded that new expert evidence met test for fresh evidence. Fresh ev- idence established that without Dr. S's flawed opinion, accused would never have pleaded guilty to manslaughter. R. v. M. (C.) (Oct. 20, 2010, Ont. C.A., Rosenberg, Cronk and Epstein JJ.A., File No. C49536) 90 W.C.B. (2d) 438 (6 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Random stops under Highway Traffic Act (Ont.) constitution- ally permissible Application by accused RS to exclude evidence of loaded gun because his rights under Canadian Charter of Rights and Freedoms were violated. RS was one of four black men who occupied vehicle that was randomly stopped by police officer who acted pursuant to Highway Traffic Act (Ont.). Of- ficer stopped vehicle to check for proper documentation and to ensure that driver was sober. While driver looked for docu- mentation officer noticed that RS was hunched over with his hands under passenger seat. RS was removed from car and was placed in police cruiser while driver and officer looked for valid insurance slip. As officer lifted herself to leave passenger compartment she saw, in plain view, part of gun that was sub- ject of this application. All four occupants were charged with possession of loaded prohibited firearm and for being occupants of vehicle in which they knew there was firearm. RS was taken to police station and was able to speak to his requested law- yer. Application dismissed. This was not investigative detention case. Random stops under Act were constitutionally permis- sible. Officer was entitled to search vehicle because she at- tempted to assist driver in ful- filling his statutory obligations to provide proof of insurance and his driver's licence. RS' ini- tial detention was not arbitrary since it was done pursuant to Act. RS was properly removed from vehicle because of officer safety. His rights under ss. 8 and 9 of Charter were not violated. Right to counsel was complied with as soon as RS was arrested. There was also no evidentiary foundation to RS' claim that he was victim of racial profiling. Even if Charter was violated gun would be admitted into December 6, 2010 • Law Times evidence as to do so would not bring administration of justice into disrepute. R. v. Steele (Sep. 29, 2010, Ont. S.C.J., Flynn J., File No. J-10- 2378) 90 W.C.B. (2d) 447 (13 pp.). RIGHT TO COUNSEL Police were either negligent, reck- less, or wilfully blind to accused's need for privacy Accused charged with impaired driving and "over 80". Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. Accused was placed in in- terview room at police station to speak with duty counsel in con- fidence. Accused testified that he could hear noises coming from outside interview room which caused him to be concerned that his conversation might be heard. Accused testified that he did not feel he could speak freely and that noises from outside room impacted on his conversation with counsel. Application al- lowed, evidence excluded. Ac- cused's evidence was credible and believable with respect to pri- vacy issue. Absence of evidence from officer regarding alcohol influence report, time accused's call with counsel ended, whether video was turned off and how he was aware accused's conversa- tion with counsel had ended all caused concern. Accused met onus on balance of probabilities, as there was no obligation on him to request privacy and his comment that he was satisfied with phone call did not consti- tute waiver of right. Given lack of evidence that video was actu- ally turned off and entry back into room without any kind of indication from accused that call had ended, police were either negligent, reckless, or wilfully blind to need for privacy. Impact on accused was not minimal given that he was handcuffed, transported to station, held in custody and required to provide samples of breath. Charge was serious and there was interest in seeing determination on merits. Admitting evidence would bring administration of justice into disrepute. R. v. Ogbaldet (Oct. 12, 2010, Ont. C.J., Hearn J., File No. 3768/09) 90 W.C.B. (2d) 454 (18 pp.). SEARCH AND SEIZURE Police did not have reasonable or probable grounds to search vehicle Application by accused to ex- clude evidence against him because his right to be secure from unreasonable search and seizure, pursuant to s. 8 of Ca- nadian Charter of Rights and Freedoms, had been violated. Accused was stopped by police. They searched his vehicle and found baggie that contained three golf-sized balls of crack cocaine in trunk and $5,000 in cash. Accused was charged with possession, possession for purpose of trafficking and pos- session of crime proceeds. Ap- plication allowed. Evidence was excluded and charges were dis- missed. Police claim, that they stopped car because they smelled very strong smell of freshly cut

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