The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50358
law Times • July 26, 2010 allowed. Clear that defendants chose to breach orders in fa- vour of contempt proceedings. Bifurcated hearing unnecessary here as defendants unable to purge contempt at this point. Defendants each sentenced to four months in jail. Consecu- tive sentences would allow their daughter to remain in school and enable them to continue operating their business. Con- tempt was blatant, wilful and deliberate. Defendants were given several opportunities to permit search and maintained refusals. Fundamental purpose of orders, to preserve evidence, was frustrated by defendants' defi ance. Element of surprise lost when search delayed. De- fendants displayed contemp- tuous attitudes and disrespect toward court. Few mitigating factors. Incarceration required for denunciation and deter- rence. Others in satellite piracy community had to know that Anton Piller orders could not be disregarded without conse- quence. Echostar Communications Corp. v. Rodgers (May 18, 2010, Ont. S.C.J. (Comm. List), Cam- eron J., File No. 06-CL-6575) 188 A.C.W.S. (3d) 676 (22 pp.). Partnership ACTIONS BETWEEN PARTNERS Action for distribution of partnership moneys was dismissed Plaintiff misappropriated revenues. Plaintiff claimed defendant brought action for declaration of partnership and for distribution of partner- ship moneys on allegations of breaches of partnership. Action was dismissed. Amount pay- able out of court to plaintiff was $1,292. Plaintiff did not have partnership interest in ownership of B. property and plaintiff 's claims to that prop- erty were dismissed. Plaintiff failed to establish plaintiff did not receive reasonable com- pensation for labour and tools in renovation of property. Ac- tion was brought and prosecut- ed under false premise. Neither party kept books or paid taxes. Court was being asked to re- construct business undertaking that probably never existed. Langelier v. Perron (May 4, 2010, Ont. S.C.J., Crane J., File No. 07-29104) 188 A.C.W.S. (3d) 871 (13 pp.). Planning ZONING City's failure to provide written notice to applicant did not rise to level of bad faith or illegality required to quash bylaw Applicant had existing quarry operation on V.'s property. T. intended to use its property as quarry. V. was adjacent prop- erty owner. Applicant objected to quarry licence application. Quarry licence was issued. Zoning by-law amendment changed zoned category on lands and refi ned boundary of environmental protection ("EP Zone"). Applicant sought dec- laration city acted illegally and in bad faith by enacting zoning by-law amendment. Applicant sought order quashing by-law for illegality. Application was dismissed. Applicant was en- titled to notice of passing of by-law because of applicant's express interest to city about is- sue. V. received mailed notice of passing of by-law. Mailed notice to V. did not constitute written notice to applicant pur- suant to Planning Act (Ont.), notwithstanding apparent re- lationship between two com- panies. Applicant had all in- formation necessary and actual notice to commence appeal of amending by-law with 20-day period. Applicant decided not to use remedy expressly pro- vided by Act. City's conduct in not providing written notice to applicant did not rise to level of bad faith or illegality required to quash by-law. Miller Paving Ltd. v. Kawartha Lakes (City) (Apr. 30, 2010, Ont. S.C.J., Mulligan J., File No. 085-09) 188 A.C.W.S. (3d) 877 (10 pp.). Professions ACCOUNTANTS Instruction by Professional Conduct Committee to make further inquiries did not constitute expansion of investigation Complaint was made that ap- plicant helped client who was engaged in matrimonial dispute to conceal income. Discipline Committee ("DC") found ap- plicant guilty of misconduct for failing to co-operate in investi- gation of Professional Conduct Committee ("PCC"). Applicant did not appear at DC hearing. Appeal Committee dismissed appeal. Application for judicial review was dismissed. Instruc- tion by PCC to make further inquiries did not constitute ex- pansion of investigation. Assum- ing duty of fairness was owed to applicant, there was no basis to conclude it was breached. Respondent was not obliged to make disclosure before charge was laid and while complaint was under investigation. Ap- plicant did not need report and documents to advance argument documents sought by investiga- tor were not relevant to inves- tigation. Question of relevance could be determined on basis of content of complaint and nature of documents demanded. DC was able to correctly determine issue of relevance without need for disclosure of documents sought by applicant. Presta v. Institute of Chartered Accountants of Ontario (Apr. 15, 2010, Ont. S.C.J. (Div. Ct.), Jennings, Ferrier and Dambrot JJ., File No. 533/09) 188 A.C.W.S. (3d) 880 (8 pp.). Wills And Estates ESTATE ADMINISTRATION Conduct of applicant and counsel had unnecessarily lengthened proceedings Action had long, protracted and expensive history. Counsel fi led costs submissions in regards to fi ve attendances before court. CASELAW As costs associated with atten- dances on these various mo- tions were clearly intertwined and as degree of success, if any, could not be readily identi- fi ed, parties' claims for costs and quantum of those costs were considered on global ba- sis rather than on basis of each individual court attendance in isolation. Degree of success achieved globally by applicant and respondents was somewhat similar. Overall, within context of issues at stake in outstand- ing action, results were of very modest importance and conse- quence. Overall, respondents achieved slightly greater degree of success and as such were en- titled to receive some indemnity with respect to costs that had been incurred. Conduct of ap- plicant and her counsel had un- necessarily lengthened proceed- ings. Applicant was ordered to pay costs to respondents in all- inclusive sum of $5,000. Bergmann v. Amis Estate (May 12, 2010, Ont. S.C.J., Daley J., File No. CV-06-02479-ES) 188 A.C.W.S. (3d) 922 (14 pp.). Evidence CHARACTER EVIDENCE Crown failed to establish that accused had put character or propensity of third party suspect, deceased or himself in issue Crown applied to tender evi- dence of discreditable conduct of accused. Crown contended accused had put character into issue as result of cross-exami- nation of witness defence had identifi ed as alternate suspect to murder. Central issue on trial was identifi cation of per- son who shot victim. Crown sought to tender evidence of accused's criminal record and facts underlying convictions. Further questioning of Crown witness defence insisted was shooter. Evidence with respect to fi rearm related off ences ac- cused and Crown witness were alleged to have been involved in, but were withdrawn. Pho- tographs of accused obtained from his cellphone and mem- ory card located in car shoot- ing had taken place in showing him wearing clothing and/or with his face covered, which had been previously ruled in- admissible and requested court re-visit earlier rulings denying admission of witness' evidence. Regarding utterances made by accused approximately one week before shooting that he was afraid of victim because he had been beaten up by people from victim's neighbourhood. Application denied. Crown failed to establish that accused had put character or propensity of third party suspect, deceased or himself in issue. R. v. Osae (May 5, 2010, Ont. S.C.J., O'Marra J.) 88 W.C.B. (2d) 168 (10 pp.). WITNESSES Trial judge did not err in permitting re-examination on prior statement Accused charged with fi rst de- gree murder. Accused stabbed deceased fatally in neck and www.lawtimesnews.com chest. Crown alleged that ac- cused approached deceased's car and stabbed him through car window before deceased left car and fought accused. Ac- cused testifi ed that he punched deceased through window and stabbed him in self-defence after deceased left car and at- tacked him. Deceased's friend testifi ed that he only saw blood on deceased at conclusion of fi ght. Crown re-examined friend about police statement in which he said he saw blood on deceased before he left car. Ac- cused's appeal from conviction allowed and conviction for sec- ond degree murder substituted. Trial judge did not err in per- mitting re-examination on pri- or statement. Defence counsel's cross-examination had left er- roneous impression that witness had never told police he saw blood on deceased before end of fi ght and Crown was entitled to correct this impression. R. v. Stiers (May 26, 2010, Ont. C.A., Sharpe, LaForme and Rouleau JJ.A., File No. C43142) 88 W.C.B. (2d) 173 (33 pp.). Release From Custody JUDICIAL INTERIM RELEASE Accused charged with perjury ordered released on bail Accused, charged with two counts of perjury arising out of allegedly false testimony in original trial, then re-trial, while giving evidence in pre- trial application sought release PAGE 15 from custody pending his trial. Accused initially consented to detention on perjury charges as he was serving sentence. Fol- lowing bail review accused was ordered released on bail but that release was vacated in bail hearing involving charges upon which accused was detained but later acquitted. At conclu- sion of preliminary inquiry on perjury charges accused was denied bail on tertiary ground although not without some reservation expressing view that term "lengthy period of imprisonment" might well be interpreted to mean peniten- tiary sentences. Accused had prior adult record but was not subject to any bail or proba- tion orders and faced no other charges at time of hearing. Accused's trial date was about four months away and it was agreed that delay to trial was not result of any manipulation by accused. Accused had been in detention referable to per- jury charges for about nine and half months. Accused ordered released on bail. Court satis- fi ed that, in all circumstances, public confi dence in adminis- tration of justice and in partic- ular in judicial interim release regime, would be substantially eroded by pretrial incarcera- tion of presumptively innocent individuals to equivalency or beyond term of what would be fi t sentence if convicted. R. v. White (May 28, 2010, Ont. S.C.J., Hill J., File No. CRIMJ(P) 3687/09) 88 W.C.B. (2d) 196 (5 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business