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PAGE 18 defendants was not operating legitimate "free-to-air" services Plaintiffs were providers of satel- lite broadcast service to customers authorized to receive such services after payment of subscription fee and were suppliers of proprietary technology to scramble satellite signals. Plaintiffs were granted interim and interlocutory in- junction restraining defendants from directly or indirectly, by any means whatsoever, circumvent- ing plaintiffs' security systems, thereby permitting unauthorized reception and decoding of plain- tiffs' encrypted satellite television programming signals, including use of Piracy Technology, as well as restraining defendants from creating, modifying, operating, maintaining, servicing or posting content to any other web site for any purpose contrary to his in- junction or soliciting any person to purchase Piracy Technology from defendants or their web sites or any other web sites. Similar or- ders to those requested in these motions had been granted in Ontario and in other provinces in cases of Piracy Technology. Plain- tiffs had established strong prima facie case that real business of de- fendants was not in operating le- gitimate "free-to-air" services, but rather, was in operating website as piracy website and further that defendants aided and abetted sale and selling of Piracy Technology. Echostar Satellite LLC v. Pellet- tier (May 11, 2010, Ont. S.C.J. (Comm. List), Morawetz J., File No. 07-CL-6889) 188 A.C.W.S. (3d) 249 (20 pp.). Judgments And Orders SETTING ASIDE Default judgment unfair and could not stand Motion by defendants to set aside default judgments and writs of seizure and sale made in two ac- tions. Actions had been ordered to be tried together. Prior to default judgments, defendants' lawyers had been removed from record on consent. Plaintiff was contemplating motion to strike statements of defence for defen- dants' failure to attend oral exam- ination but action was set down for trial instead. Defendants swore they had been advised by former counsel that plaintiff had abandoned litigation and were never notified of trial date. Plain- tiff attended trial date and no one made any effort to contact absent defendants. Plaintiff argued de- fendants intentionally did noth- ing to inform themselves of trial and that plaintiff was not obli- gated to contact them. Motion allowed. Uncontradicted that de- fendants had been led to believe by their former lawyers that mat- ter was not going forward and that they were not advised the trial had been scheduled. Plain- tiff had been contacted by one of the new lawyers so was aware that defendants had not aban- doned matter. Fairness required someone to alert defendants to imminent trial when they did not appear. Default judgment unfair and could not stand. Defendants to pay plaintiff $1,200 in costs thrown away. $1.99 Club Inc. v. 1549452 On- tario Inc. (Apr. 15, 2010, Ont. S.C.J., Wilson J., File No. 03-CV- 248012CM1) 188 A.C.W.S. (3d) 259 (4 pp.). Labour Relations COLLECTIVE AGREEMENT Board's interpretation of "meet and review" provisions was rational and reasonable Board of Arbitration held that term "meet and review" in two collective agreements provided union with substantive right to be consulted prior to lay-off deci- sion and to have opportunity to participate in meaningful way in meeting to review proposed lay- offs. Board therefore concluded that employer CNH's failure to provide certain financial informa- tion requested by union prior to meeting was breach of collective agreement and that this breach prejudiced union. Board further held that appropriate remedy was to find lay-offs to be void ab initio. Board's interpretation of "meet and review" provisions in collective agreement as includ- ing requirement that employer provide reasonable disclosure of documents relevant to lay-off de- cision was rational and reasonable one. Board's decision was entitled to deference and ought not to be interfered with by court. Remedy chosen by board was reasonably open to it to impose and it was not role of court to interfere. Community Nursing Home v. O.N.A. (Mar. 1, 2010, Ont. S.C.J. (Div. Ct.), Reilly, Molloy and Dambrot JJ., File No. 356/08) Application for judicial review from 171 L.A.C. (4th) 143, 93 C.L.A.S. 289 was affirmed. 188 A.C.W.S. (3d) 260 (5 pp.). Municipal Law RESOLUTIONS Resolution was ordered quashed Applicants wished to construct garage and swimming pool at rear of property. Applicants obtained building permit. City refused by way of resolution to give ap- plicants permission to cross city property to access rear of appli- cants' property city placed con- crete barriers along side of cul de sac preventing access across grass boulevard to applicants' prop- erty. Applicants sought order that resolution was illegal and invalid. Applicants sought order that chief building officer had no authority to restrict passage by applicants over public lands for purpose of gaining access to applicants' lands. Applicants sought mandatory in- junction. Resolution was ordered quashed. Application process for temporary access was to be com- menced again with full notice to all residents in area. Process was not fair. City notified only neigh- bours who had previously filed complaints on issue rather than all residents in area. City created ap- pearance of bias in process. City failed to provide full disclosure to interested parties who intended to make submissions. Applicants were not made aware request for adjournment of committee's con- sideration was available. Hearings were conducted without degree of openness and fairness that was required of municipal govern- ment. Degree of impartiality was CASELAW questionable. Applicants estab- lished bad faith. Drake v. Stratford (City) (Apr. 29, 2010, Ont. S.C.J., Temple- ton J., File No. 2204/09) 188 A.C.W.S. (3d) 273 (19 pp.). Torts NEGLIGENCE Defendant negligently made unsafe lane change Action for damages for loss of vehicle. Plaintiff t-boned defen- dant's vehicle and plaintiff's ve- hicle was destroyed. Plaintiff testi- fied that he was unhurried on his way to work and turned into the passing lane, moved into the curb lane and travelled freely for sever- al blocks. Plaintiff then observed traffic had backed up in passing lane. Plaintiff testified accident oc- curred when defendant suddenly cut out from line of vehicles, in front of plaintiff's vehicle. Plain- tiff applied brakes but still force- fully struck defendant. Defen- dant testified that he was stuck in line of cars and moved into curb lane when another driver allowed him in. Defendant testified that plaintiff abruptly entered curb lane at same time and hit him. Defendant's mother testified on defendant's behalf. There were no independent witnesses. Action allowed. Defendant's mother's testimony was clearly concocted to help defendant. Defendant was seen giving mother verbal and non-verbal cues and she was unable to clearly respond to ques- tions on cross-examination or point out location of collision in photograph. Defendant was in oncoming lane at time of accident so owed explanation for why he was there. Plaintiff's evidence was preferred and he easily rebutted suggestion he was late for work and hurried. Defendant's claim that no cars were approached when he changed lanes was un- believable given heavy traffic. If plaintiff had just changed lanes as defendant claimed, accident would not have been so force- ful. Defendant negligently made unsafe lane change. No evidence plaintiff was travelling too fast or otherwise negligent. Defendant ordered to pay $13,949 for plain- tiff's vehicle, plus $2,533 interest. Younes v. Nikzad (May 3, 2010, Ont. S.C.J., Grace J., File No. CV-08-354280) 188 A.C.W.S. (3d) 303 (6 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Affiant's conduct was sloppy but did not justify setting aside warrant Application by accused to quash search warrant and to exclude evi- dence that was found. Police ob- tained telewarrant and used it to search apartment where accused lived. They found loaded hand- gun and seven rounds of am- munition in closet of bedroom shared by accused, his girlfriend and their young child. At time of search accused was in custody, www.lawtimesnews.com having been arrested earlier in day on charge of possession of stolen property. He faced number of weapons charges as result of this search. Accused claimed that his rights under Canadian Charter of Rights and Freedoms were violated. Application allowed in part. Police had accused under surveillance for drug dealing. There were reasonable and proba- ble grounds to think that accused was dealing in drugs and that he had supply in his apartment. Warrant was therefore valid on its face. Information to Obtain war- rant contained errors that ranged from typos to misstatements and omissions of information. Affi- ant officer who obtained war- rant did not attempt to mislead court. He did not display such cavalier attitude that court could not find that he acted in good faith. Sufficient basis existed for issuing warrant after erroneous or inappropriate statements or in- formation were excised. Affiant's conduct was sloppy but was not so subversive to system of prior judicial authorizations that war- rant had to be set aside. Condi- tions for issuance of telewarrant were met. It was impracticable for affiant to appear personally before justice of peace. He also told truth when he stated that he called couple of judges before he resorted to telewarrant process. Requests for night entry and for forced entry into apartment were justified. Accused was advised of his right to counsel but, for eight hours, he was not allowed to speak to counsel or to make any telephone calls until warrant was executed. Volatile and high- risk situations when suspension of right to counsel was permitted did not exist in this case. Accused's right to counsel under s. 10(b) of Charter was therefore violated. Certain inculpatory statements that accused made during that in- terval were excluded. Cumulative effect of errors that affiant made and violation of s. 10(b) were not sufficient to set aside warrant and to exclude evidence that was sub- sequently discovered. R. v. Soto (Apr. 22, 2010, Ont. S.C.J., Harvison Young J., File No. 801/09) 87 W.C.B. (2d) 933 (18 pp.). Stay of proceedings not appropriate remedy Accused charged with historical sexual offences. Police investigat- ed allegations in 1994 but laid no charges. Accused charged in 2005 after complainant taped conversa- tion with him about allegations. Some notes and audiotapes from 1994 investigation were destroyed before charges laid. Trial judge found accused guilty but then stayed proceedings on basis that lost evidence prevented accused from making full answer and defence. Crown appeal allowed and new trial ordered. Other documents from 1994 investiga- tion were available to defence and sufficiently permitted accused to challenge credibility of complain- ants. Stay of proceedings not ap- propriate remedy but other lesser remedy may have been available. Trial judge erred in entering find- ing of guilt before considering whether stay of proceedings ap- propriate. New trial appropriate June 28, 2010 • Law Times remedy on appeal. R. v. Sheng (Apr. 26, 2010, Ont. C.A., Laskin, Gillese and Juriansz JJ.A., File No. C46640) Decision at 75 W.C.B. (2d) 758 reversed. 87 W.C.B. (2d) 901 (23 pp.). RIGHT TO FAIR TRIAL Police not unacceptably negligent in erasing audiotapes Accused charged with historical sexual offences. Police investigat- ed allegations in 1994 but laid no charges. Accused charged in 2005 after complainant taped conversa- tion with him about allegations. Some notes and audiotapes from 1994 investigation were destroyed before charges laid. Notes and au- diotapes stored in locked drawer but tapes erased pursuant to po- lice policy at time. Trial judge found accused guilty but then stayed proceedings on basis that lost evidence prevented accused from making full answer and de- fence. Crown appeal allowed and new trial ordered. Police were not unacceptably negligent in erasing audiotapes one year after decision not to charge accused was made. Other documents from 1994 in- vestigation were available to de- fence and sufficiently permitted accused to challenge credibility of complainants. R. v. Sheng (Apr. 26, 2010, Ont. C.A., Laskin, Gillese and Juriansz JJ.A., File No. C46640) Decision at 75 W.C.B. (2d) 758 reversed. 87 W.C.B. (2d) 901 (23 pp.). TRIAL WITHIN REASONABLE TIME Accused waived total of 682 days of delay Accused, charged with three counts of assault causing bodily harm, four counts of assault and one count of uttering threat to cause death over period of five years after domestic dispute with his wife, applied for order stay- ing proceedings. Accused was police officer and complainant was court service officer. Accused was suspended from his employ- ment and remained suspended at date of application. Delay from laying of charges until accused's trial was fixed to proceed was in excess of 50 months. Application dismissed. On reviewing records of adjournment, court found ac- cused waived total of 682 days of delay. Delay arising from Crown's failure to make timely disclosure which resulted in earlier mistrial amounted to approximately 200 days. Accused did not satisfy court of impact of delay on lost evi- dence. Accused, while suspended, was not suspended without pay. Accused was not incarcerated and terms of bail were eased five weeks after his arrest. Record cre- ated impression of complacency on part of accused. No prejudice was established. R. v. Durica (May 11, 2010, Ont. S.C.J., Granger J., File No. 1310/07) 87 W.C.B. (2d) 903 (20 pp.). Courts JUDGES Judge did not err in issuing addendum to voir dire decision Application by accused, who faced number of charges for pos- session of loaded handgun, for trial judge to recuse himself and