Law Times

LAW TIMES / APRIL 7, 2008 child, but were unable to work with and accept persons who had authority over them. Parents had never been financially self- sufficient, their relationship was tenuous and mother was func- tionally illiterate. Child had iron deficiency and his speech was delayed. Parents were not com- petent at minimum standard to care for child. Child was very eli- gible for adoption and order for access would impair his future opportunity for adoption. Catholic Children's Aid Society of Hamilton v. M. (M.) (Dec. 24, 2007, Ont.S.C.J., Hambly J., File No. C-250-03) Order No. 008/008/043 (70 pp.). CUSTODY Order prohibiting access to children other than by further order was upheld on appeal Trial judge denied appellant's written request for adjourn- ment and proceeded with hear- ing in appellant's absence. Based on information provided, trial judge varied access so that appel- lant had no access other than by further order of court. Appellant did not seek any further order from trial court, but instead launched appeal. Appellate pro- cess wound on for three and half years, during which appellant had not seen his children, now aged 14 and 12. No error in trial judge's order. There was basis upon which trial judge could decline to adjourn and proceed to make order he did. Davis v. Davis (Jan. 11, 2008, Ont. C.A., Doherty, Borins and MacFarland JJ.A., File No. C48000) Appeal from 132 A.C.W.S. (3d) 311 dismissed. Order No. 008/028/046 (3 pp.). SUPPORT No error in determination of child support Trial judge did not deny appel- lant procedural fairness in pro- ceeding to award Guideline support when respondent had not made formal application for that relief. Trial judge correctly decided that appellant would suffer no prejudice from con- sideration of increased support at same time as he considered appellant's request to terminate child support in its entirety. No error in trial judge's determina- tion of support. Mickle v. Mickle (Jan. 21, 2008, Ont. C.A., Winkler C.J.O., Rosenberg and Lang JJ.A., File No. C45271) Appeal from 146 A.C.W.S. (3d) 1027 dismissed. Order No. 008/024/043 (4 pp.). Injunctions INTERLOCUTORY RELIEF Defendant restrained from marketing to or contracting with third party advertisers Agreement provided that defen- dant retained plaintiff as its exclu- sive sales agent for marketing and sale of advertising on signs on exterior of defendant's building. Defendant acknowledged that it had made sales proposals in respect of signs to both potential advertis- ers and their advertising agencies and in fact, some of proposals had been successful. Plaintiff estab- lished strong prima facie case of breach by defendant of negative covenant in agreement. Tests of irreparable harm and balance of convenience favoured plaintiff. Plaintiff was entitled to injunc- tion restraining defendant from directly or indirectly marketing to or contracting with third party advertisers or advertising agencies for purposes of posting advertising on signs at building. Van Wagner Communications Co., Canada v. Penex Metropolis Ltd. (Jan. 18, 2008, Ont.S.C.J., Pattillo J., File No. 07-CV-34063PD2) Order No. 008/024/036 (24 pp.). Pensions TERMINATION AND WIND-UP Fact that victims on wrong-doing had access to remedy via request to Superintendent did not affect rights in trust law Court dismissed applicant's appeal from decision refusing to strike out its claim for order, in event that respondent plan administrator found to be in breach of trust in administer- ing subject pension plan, that respondent be directed to make application for partial winding up of plan and distribution of assets. Application dismissed on basis that issue whether court had jurisdiction to make order was novel and not plain and obvious court could not direct- ly initiate wind up. Supreme Court of Canada acknowl- edged applicability of trust principles to trusts embodied in pension plans. No policy reason to prevent achievement of classic equitable remedy of restitution by mandatory order requiring wrong-doer to act as permitted by statute. Fact that victims of wrong-doing had access to remedy via request to Superintendent did not affect their rights in trust law. Not plain and obvious applicant could not succeed. Lomas v. Rio Algom Ltd. (Jan. 23, 2008, Ont. Div. Ct., Lane, Kiteley JJ. and dissenting - Murray J., File No. 4-2007) Appeal from 157 A.C.W.S. (3d) 1046; 60 C.C.P.B. 147 dismissed. Order No. 008/035/124 (23 pp.). Torts NEGLIGENCE Municipality and driver both liable for plaintiff 's damages arising from accident on slushy road Plaintiff injured when vehicle struck by individual defendant's vehicle during snow storm. Roads snow covered and slushy. Defendant's vehicle spinning out of control and striking plaintiff 's vehicle. Evidence revealed significant omission in form of lack of standard for non-routine patrolling in minimum maintenance stan- dards. Portions of Municipal Act, 2001 (Ont.), providing for minimum standards relating to clearing snow and treating icy roadways to be read as provid- ing for continuous deployment of resources during storm with clearance or treatment to occur as soon as practicable. Evidence established existence of state of non-repair and unreason- able risk of harm. Municipality failed to show it cleared snow/ slush accumulation on road as soon as practicable and failing to show that either minimum CASELAW maintenance standards met or that it took any steps to prevent accumulation of slush/snow. Speed of defendant's vehicle excessive in circumstances and contributing cause and of colli- sion. Could not be said that negligence of one defendant more substantial than other. Municipality individual defendant responsible to extent of 50% of plaintiff's damages. Thornhill (Litigation Guardian of) v. Shadid (Jan. 31, 2008, Ont.S.C.J., Howden J., File No. 66500/03) Order No. 008/038/286 (53 pp.). ONTARIO CRIMINAL CASES TIME ELEMENT Breathalzyer demand was made as soon as practicable Accused charged with care or control "over 80". Police officers found accused asleep behind wheel of car at intersec- tion. Accused failed approved screening device test. Officers discussed grounds for arrest, arrested accused, arranged for car to be towed and searched car. Breathalyzer demand given approximately 15 minutes after fail result. 18 minutes elapsed between breath tech- nician's readiness and when accused taken to give samples. Breathalyzer readings were 166 and 172 mg alcohol per 100 ml blood. Accused found guilty. Breathalzyer demand was made as soon as practicable in accordance with s. 254(3) of Criminal Code. Police acted diligently and took reason- able and appropriate actions at scene which posed risks to public. Breath samples taken as soon as practicable pursu- ant to s. 258(1)(c) of Criminal Code. Taking expansive view of requirement under provi- sion, police acted reasonably and were attentive to duties. Only one hour elapsed between officers' arrival at scene and taking of first test. R. v. Sihanath (Dec. 21, 2007, Ont. C.J., Pringle J.) Order No. 008/056/115 (11 pp.). In totality of circumstances, tests given as soon as practicable Accused appealed conviction for driving "over 80". Officer pulled over accused's vehicle and noticed indicia of impair- ment. Accused arrested at 3:27 a.m. and taken to police sta- tion. Intoxilizer technician ready to administer breath tests at 3:44 a.m. but arresting offi- cer mistakenly assumed techni- cian not ready until 4:07 a.m.. Breath samples given at 4:11 a.m. and 4:31 a.m.. Appeal dismissed. Sufficient evidence to conclude police acted rea- sonably. In totality of circum- stances, tests given as soon as practicable. R. v. Khan (Feb. 5, 2008, Ont. S.C.J., Tulloch J., File No. SCA (P) 1490/07) Order No. 008/038/299 (6 pp.). Procuring Commission Of Offence Counselling Or www.lawtimesnews.com GENERAL Accused did not procure, solicit or incite anyone to commit arson Accused charged with coun- seling D.A. to commit arson. Accused was D.H. separated from and involved in fam- ily law proceedings. D.H. had begun living with K.B.. D.H. testified that accused falsely accused him of assaulting her, often drove past home, swore at him, complained about K.B.'s presence in home and threatened to kill K.B.'s dogs. Accused's friend D.A. testified that accused asked her if she knew anyone who would burn down D.H.'s garage. Accused found not guilty. Accused did not procure, solicit or incite anyone to commit arson. No evidence of words or action in furtherance of offence. R. v. Harper (Mar. 26, 2007, Ont. C.J., De Filippis J., File No. 998 05 09841; 998 05 09903) Order No. 007/087/086 (21 pp.). Defences INSANITY Accused with paranoid delusional disorder found not guilty under s. 16(1) of Criminal Code Accused charged with attempted murder, aggravated assault and unlawful confinement. Actus reus admitted. Accused assaulted vic- tim under irrational delusion that she was part of conspiracy by for- mer co-workers to kill him. Two forensic psychiatrists concluded that accused suffered from para- noid delusional disorder. Accused found not guilty by reason of mental disorder. Accused met test under s. 16(1) of Criminal Code. PAGE 15 Accused's paranoid ideation pre- vented him from appreciating wrongfulness of acts. R. v. Dennis (Dec. 20, 2007, Ont. S.C.J., Hackland J., File No. 06-G14658) Order No. 008/038/274 (7 pp.). Evidence CREDIBILITY Credibility findings supported by record Accused appealed conviction for attempted fraud and forg- ery (x5). Crown alleged accused attended Canada Post with intention of cashing five fraud- ulent money orders. Canada Post employee, arresting officer and accused testified. Appeal dismissed. Trial judge applied proper legal principles. No error in law. Credibility and factual findings reasonably sup- ported by record. R. v. Nathan (Jan. 15, 2008, Ont. S.C.J., Tulloch J., File No. SCA(P) 1847/07) Order No. 008/017/008 (7 pp.). Clear reasons given for finding complainant credible Accused appealed conviction for sexual assault. Complainant testified that accused "kind of cupped both her breasts" while she was trying on necklace. Appeal dismissed. Trial judge alive to alleged inconsistencies between complainant's statement to police and testimony. Judge gave clear reasons for finding complainant credible. No palpa- ble or overriding error in finding touching intentional. \R. v. Singh (Jan. 31, 2008, Ont. S.C.J., Thomas J., File No. 1395/06) Order No. 008/037/007 (7 pp.). LT

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