Law Times

Law Times • November 1, 2010 between parties. Applicant re- quired respondent to resign. Arbitrator concluded respon- dent was constructively dis- missed and respondent was awarded termination amounts under change of control agree- ment. Applicant brought mo- tion for leave to appeal award of arbitrator. Motion was dis- missed. Parties intended to have disputes resolved private- ly without resorting to courts. Th ere was no extrinsic evi- dence of intention of parties to retain appeal from decision of arbitrator. Arbitration was to be fi nal and binding. Par- ties implicitly excluded right to appeal arbitrator's decision on question of law. Weisz v. Four Seasons Hold- ings Inc. (Aug. 30, 2010, Ont. S.C.J., Morawetz J., File No. CV-10-397188) 192 A.C.W.S. (3d) 353 (11 pp.). Civil Procedure COSTS Judge erred by awarding self-represented respondent partial indemnity costs Th is was appeal from motions judge's decision awarding costs to respondent, self-represented litigant. Appellant was pri- vate investigation service for which respondent worked as private investigator. Following termination of respondent's employment appellant sued him alleging that respondent had unlawfully taken confi - dential information. Appellant brought motion to discontinue proceedings. Motions judge exercised discretion to grant leave to discontinue proceed- ings. Motions judge awarded respondent costs of $20,000 plus disbursements of $1,051 for total of $21,051. Appeal al- lowed. In order to receive costs self-represented litigant must demonstrate that he or she devoted time and eff ort to do work ordinarily done by law- yer and that as result he or she incurred opportunity cost by foregoing remunerative activity. Motions judge erred by award- ing self-represented respondent partial indemnity costs that ap- pellant could reasonably be ex- pected to have paid lawyer had one been retained. Award of $20,000 was calculated based on error in principle and was plainly wrong. Mustang Investigations Inc. v. Ironside (July 20, 2010, Ont. S.C.J. (Div. Ct.), Jennings, Lederman and Wilton-Siegel JJ., File No. 458/09) Decision at 180 A.C.W.S. (3d) 398 was reversed. 192 A.C.W.S. (3d) 697 (8 pp.). SETTLEMENT Law firm's fees under contingency agreement were allowed in amount of $1 million Plaintiff was minor. Plaintiff sustained catastrophic inju- ries as result of motor vehicle accident. Counsel for plain- tiff brought motion for ap- proval of settlement of tort claim. Settlement totalled $14,350,000. Law fi rm would receive $2,600,000 for legal fees and disbursements inclu- sive of GST. Report of Offi ce of Children's Lawyer did not object to amount of settlement but raised concerns. Amount of settlement was in plaintiff 's best interests. Case did not raise complex issues and did not represent fi nancial risk to law fi rm. Law fi rm did not have to bear expenses of trial prepara- tion. No dockets were kept. It was not fair and reasonable and in plaintiff 's best interests that law fi rm receive proposed fee under contingency agreement. Amount to be held in trust pending approval of manage- ment plan was to be increased to $2,246,319. Law fi rm's fees under contingency agreement were allowed in amount of $1 million which was in addition to $1 million for costs and dis- bursements. Law fi rm would receive total of $2 million in- clusive of GST. Allocation of settlement funds was otherwise approved as proposed. Choi v. Choi (Sep. 1, 2010, Ont. S.C.J., Fuerst J., File No. 76845/05) 192 A.C.W.S. (3d) 420 (11 pp.). Insurance AUTOMOBILE INSURANCE Legislature did not intend to exclude coverage for injuries resulting from contact with stationary automobile Th is was appeal from motion judge's dismissal of appel- lant's claim. Appellant walked out of variety store and struck head on steel pole protruding from truck parked wrong way on street in front of store. Ap- pellant suff ered serious head injury. Appellant could not identify truck so she sued re- spondent insurance company for damages for personal inju- ries. As appellant was not oc- cupant of motor vehicle when she was injured she was only entitled to coverage if she was struck or hit by unidentifi ed automobile. Respondent ap- plied for summary judgment to dismiss appellant's action. Motion judge concluded that appellant could not invoke in- surer's unidentifi ed automobile coverage because truck was not moving when she hit protrud- ing pole. Appeal allowed. Mo- tion judge stated principle that coverage provisions should be interpreted broadly but she did not apply principle. Mo- tion judge took narrow view of words "struck by or hit by" but those words should be inter- preted broadly and broad in- terpretation entitled appellant to coverage. Legislature did not intend to exclude cover- age for injuries resulting from contact with stationary auto- mobile. Th ere was no rational distinction between accident where person was struck by protruding pole on very, very slow moving truck and acci- dent where person was struck by protruding pole on station- ary truck. Interpretation here would not open fl oodgates to injury claims by persons who walked into unidentifi ed cars. Respondent's motion for sum- mary judgment was dismissed. CASELAW Lewis v. Economical Insurance Group (July 26, 2010, Ont. C.A., Laskin, Feldman and Gillese JJ.A., File No. C50806) Decision at 178 A.C.W.S. (3d) 945 was affi rmed. 192 A.C.W.S. (3d) 603 (12 pp.). Torts NEGLIGENCE Bank did not owe duty to non-customer Motion judge struck out por- tions of statement of claim which was based on claim that respondent bank owed duty to appellants, not its customers, to make inquiries to ensure its customer, with whom ap- pellants had dealings, not us- ing bank to further fraudulent activity. Judge held that bank has duty to non-customer only where it has actual knowledge of customer's fraudulent con- duct. Appeal dismissed. In some cases trial courts have, on motion to strike, allowed claims alleging duty to ensure that bank's customers did not use accounts for fraudulent purposes to proceed to trial. No authorities to support sub- mission that bank owes those duties to non-customer. Nor is this a case where court should recognize new duty of care. No evidence bank raised concerns about suspicious conduct on part of customer or that non- customer had alerted bank to fraud allegation. No circum- stances disclosed in claim that warranted issue going to trial. Dynasty Furniture Manufactur- ing Ltd. v. Toronto-Dominion Bank (July 20, 2010, Ont. C.A., O'Connor A.C.J.O., Rouleau and Epstein JJ.A., File No. C51698) 192 A.C.W.S. (3d) 579 (4 pp.). ONTARIO CRIMINAL CASES Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Words "just wait in the vehicle, I'm going to call for a roadside test" do not constitute proper demand Accused appealed her con- viction for impaired driving. Accused was initially stopped due to offi cer's suspicion about her licence plate and due to fact that she drove more slowly when he had pulled his marked cruiser behind her ve- hicle. Offi cer detected odour of alcoholic beverage and de- cided to conduct approved screening device ("ASD") test. Offi cer did not have ASD with him and radioed for one to be delivered. Offi cer did not en- quire as to estimated time of arrival and did not know what distances or times would be involved in delivery. Offi cer told accused to wait in vehicle and that he was going to call for roadside test. ASD arrived 17 minutes later, accused failed test, was placed under arrest, cautioned and given her rights. Accused testifi ed that www.lawtimesnews.com 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 Starting from $62.50 per month she had in her possession cel- lular phone and had she been aware of her right to counsel, she would have exercised this right at that time. Appeal al- lowed, conviction quashed, acquittal entered. Words "just wait in the vehicle, I'm going to call for a roadside test" do not constitute proper demand for ASD sample. Th ere was suffi cient time for accused to not only be advised of her rights to counsel but also be allowed to speak with counsel, despite time of day. R. v. Whitlaw (Aug. 27, 2010, Ont. S.C.J., Scott J., File No. CR-09-0038-00AP) 90 W.C.B. (2d) 6 (4 pp.). Charter Of Rights SEARCH AND SEIZURE Police use of DNA evidence did not violate accused's s. 8 Charter rights Accused appealed conviction for fi rst degree murder. DNA evidence was overwhelming at trial. Accused's DNA was on fi le as result of accused's conviction for sexual assault with weapon in 1995. Trial judge made ruling that police use of 1995 DNA evidence, obtained from accused's un- derwear, did not violate his s. 8 Charter rights. Appeal dismissed. Court agreed with trial judge's ruling. Once ac- cused was convicted of sexual assault with weapon, his priva- cy with respect to identifying information was signifi cantly diminished. Previous informa- tion was obtained incident to lawful arrest and police had PAGE 15 right to use it for comparison purposes in subsequent inves- tigation. R. v. DeJesus (Sep. 7, 2010, Ont. C.A., MacPherson, Rou- leau and Karakatsanis JJ.A., File No. C46292) 90 W.C.B. (2d) 15 (6 pp.). Courts ABUSE OF PROCESS Nothing preventing Crown from reassessing case after trial where plea negotiations fail Accused charged with second degree murder. Crown off ered plea to manslaughter where Crown would seek life sentence and accused would seek no less than six to eight years. Defence refused and off ered plea to manslaughter with open sen- tencing hearing. Further ne- gotiations failed. Accused con- victed of manslaughter. Crown launched dangerous off ender proceeding. Accused unsuc- cessfully sought stay of pro- ceedings on basis that proceed- ing was abuse of process in light of Crown's position during plea negotiations. Accused found to be dangerous off ender and given indeterminate sentence. Appeal dismissed. Nothing preventing Crown from re-assessing case after trial where plea negotia- tions fail. Accused may not on appeal eff ectively retract plea of not guilty and then claim ben- efi t of plea bargain he refused to accept before trial. R. v. Edgar (July 23, 2010, Ont. C.A., Feldman, Sharpe and Gillese JJ.A., File No. C41270) 90 W.C.B. (2d) 41 (43 pp.). LT When More is Too Much

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