Law Times

LAW TIMES / APRIL 14, 2008 ficer. Solicitor retained on block fee basis. Statements of account submitted by solicitor were con- fusing in that they appeared to be drawn on time spent basis and then discounted allegedly bring them into line with block fee schedule to retainer agreement. Assessment officer found that agreement was valid contract between parties and deducted $17,000, leaving fees incurred of $29,500. Assessment officer then found that account should be ad- justed for extra days of examina- tion over what was contemplated in schedule to retainer agreement however he failed to make ad- justment. Appeal allowed. Mo- tions judge confirmed error of assessment officer in failing to quantify adjustment of extra days of examinations. Had extra days of examinations been taken into account at agreed upon rate set out in retainer there would be nothing due from solicitor to cli- ent as opposed to sum of $7,543 found by assessment officer to be due. Hassan v. Kothdiwala (Jan. 15, 2008, Ont. Div. Ct., Jen- nings, Kiteley and Swinton JJ., File No. 622/06) Order No. 008/035/127 (4 pp.). Real Property CERTIFICATE OF PENDING LITIGATION Leave granted to issue certificate in action arising from equipment leases Plaintiff brought contractual claim on leases for photocopying equipment. Plaintiff claimed de- fendant was personally liable for debts under lease agreements. Plaintiff claimed property was fraudulently conveyed by defen- dant to wife. Plaintiff 's motion for leave to issue certificate of pending litigation was allowed. Balance of convenience fa- voured plaintiff. There was lack of evidence of prejudice to de- fendants. Plaintiff showed high probability of success against de- fendant in main debt action and prima facie case of fraudulent conveyance. Xerox Canada Ltd. v. Baba Pub- lications (Jan. 25, 2008, Ont. S.C.J., Master Glustein, File No. 07-CV-327376PD2) Order No. 008/035/169 (7 pp.). Sale Of Land SPECIFIC PERFORMANCE No evidence justifying order of specific performance Applicant was tenant of land owned by respondent. Appli- cant was persistently late with payment of rent. Applicant did not comply with applicant's payment proposal. Applicant sought declaration that right to exercise land purchase option agreement was not forfeited for alleged material breach of ten- ancy agreement. Plaintiff paid $30,000 as deposit toward ex- ercise of option. Persistent and perennially late payments were material breaches going to root of lease and option to purchase agreement. Applicant presented no evidence justifying order of specific performance. It was un- justified windfall to respondent to award respondent retention of $30,000. $30,000 was to be remitted to applicant. Annett v. Breadner (Jan. 11, 2008, Ont. S.C.J., Stong J., File No. 07-0432) Order No. 008/017/022 (7 pp.). FEDERAL COURT Civil Procedure CLASS ACTIONS Prothonotary had jurisdiction to hear motion to strike claim in proposed class proceeding Motion by defendant for order to strike out amended statement of claim in proposed class pro- ceeding. Preliminary objection raised by plaintiffs questioning whether prothonotary had juris- diction to hear and decide mo- tion to strike statement of claim in proposed class proceeding. Prothonotary has jurisdiction to hear motion to strike class pro- ceeding under Rules of Federal Court (Can.). Pursuant to Rule 50, prothonotary has jurisdiction to deal with any motion under Rules other than those that are specifically excluded. Moreover, prothonotary has jurisdiction under Rule 50(1) to decide mo- tion to strike action under Rule 221 whatever amount claimed in action. Prothonotaries have not only jurisdiction of Rule 50(2) in class proceedings but also have any jurisdiction relating to class proceedings that is not specifi- cally granted to judge. Class pro- ceedings rules simply establish comprehensive procedural code for conduct of class proceeding within context of Rules as whole. They do not oust rights of defen- dants to strike statement of claim on any of enumerated grounds found in Rule 221. Motion to strike statement of claim pursu- ant to Rule 221 may be brought prior to certification. As protho- notary may now be appointed case management judge in spe- cially managed proceeding and is empowered under Rules to deal with any motion not excluded by Rule 50, prothonotary has juris- diction to hear motion to strike class proceeding under Rules. Pearson v. Canada (Minister of Jus- tice) (Jan. 17, 2008, F.C., Aalto Prothonotary, File No. T-1430- 07) Order No. 008/035/097 (18 pp.). Intellectual Property Industrial And TRADE-MARKS No deficiency in notice of application identified to justify striking pleading Motion by respondent for order to strike Notice of Application on grounds pleading not in form re- quired by Rule 301(f) of Federal Court Rules (Can.). Respondent contended that there was radical defect in pleading in that it did not contain list of documentary evidence to be used at hearing of application as required by Rule 301(f). Motion dismissed. If re- spondent's interpretation of Rule 301(f) were to be adopted appli- cant would be required to iden- tify all of its deponents and docu- ments before even instituting proceeding. Such result would be at odds with general scheme of part 5 which affords applicant 30 days to marshal its evidence and to finalize its affidavit evidence. Respondent failed to establish CASELAW any deficiency in Notice of Ap- plication that would justify strik- ing pleading. In light of general description of documents listed in Notice of Application, appli- cant had substantially complied with Rule 301(f). Simpson Strong-Tie Co. v. Peak Innovations Inc. (Jan. 15, 2008, F.C., Lafreniere Prothonotary, File No. T-2245-07) Order No. 008/035/096 (5 pp.). ONTARIO CRIMINAL CASES Breathalyzer REASONABLE EXCUSE FOR REFUSAL Finding that "forthwith" requirement met not unreasonable Accused appealed conviction for refusing to provide breath sample, contrary to s. 245(5) of Crimi- nal Code. Officer pulled over ac- cused's vehicle and made approved screening device demand. Officer requested device be brought to scene. Accused alleged he had cell phones in his possession at time and police station was less than a minute away. Accused's applica- tion for stay based on breach of s. 10(b) of Charter was dismissed. Trial judge concluded that pres- ence of cell phones not established and that attempt to obtain sample was "forthwith", notwithstanding seven or eight minute delay in ar- rival of device. Appeal dismissed. Finding about cell phones was reasonable and supported by evi- dence. Officer had reason for not transporting accused to police station to use telephone, namely inebriated passenger in accused's vehicle. Officer's decision to have device delivered to scene was rea- sonable. Finding that "forthwith" requirement met not unreason- able. Demand was valid. No realistic opportunity to consult counsel. R. v. Cloutier (Feb. 26, 2008, Ont. S.C.J., Belch J., File No. 05945) Order No. 008/058/211 (11 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Delay of 15 years, seven months constituted abuse of process Accused was charged with sexual assault and sexual interference. Information was sworn July 1992 and accused was not arrest- ed until November 2005. Delay was 15 years and seven months. Delay was so long as to consti- tute abuse of process. There was prejudice to accused of such a na- ture sense of decency and fairness on reasonable member of public would be affected. Proceedings were stayed. R. v. Lopes (Feb. 5, 2008, Ont. S.C.J., MacKenzie J., File No. CR-06-00001375-0000) Order No. 008/056/110 (14 pp.). Defences INTOXICATION No evidence that intoxication negated voluntariness of actions Accused charged with threaten- ing to kill police officers (x3), causing disturbance and resisting arrest. Police attended residence www.lawtimesnews.com in response to complaint about fight. Accused was intoxicated in residence and was arrested af- ter running into street. Accused struggled, resisted arrest and told officers he would kill them. Ac- cused found guilty. Elements of all offences established. No evi- dence that accused's intoxication negated voluntariness of actions in resisting officers. Further, ac- tions constituted assault, engag- ing s. 33.1 of Criminal Code. Notwithstanding alcohol con- sumption, accused had capacity to, and did, form intent to in- timidate officers. R. v. Giancone (Jan. 11, 2008, Ont. C.J., Kenkel J.) Order No. 008/059/024 (3 pp.). Evidence DOCUMENTARY EVIDENCE Payroll records admitted under s. 30(1) of Canada Evidence Act Crown sought to admit payroll records for deceased's business pursuant to s. 30(1) of Canada Evidence Act. Record showed ac- cused employee was not paid for one week and showed code for termination of employee. Evi- dence admissible. Records clearly relevant. Business's accountant could lay foundation for admis- sion. Alternate explanations for entries went to weight. R. v. Mendez-Romero (Feb. 13, 2008, Ont. S.C.J., Pardu J., File No. P771/06) Order No. 008/056/111 (3 pp.). VIDEO AND AUDIO EVIDENCE Reliability of videotaped statements not established PAGE 15 brother admitted. Accused was charged with having sexual con- tact with his daughter. Circum- stances surrounding statement did not provide guarantees of reliability because oath was not given. Witness gave statement not on his own initiative and witness was not impressed with need to tell the truth. Witness had motivation to give statement against accused. Crown's motion was dismissed. R. v. S. (L.) (Jan. 31, 2008, Ont. S.C.J., McDermid J., File No. 10138) Order No. 008/056/152 (12 pp.). Motor Vehicles DANGEROUS DRIVING Accused truck driver who failed to properly check brakes not guilty of dangerous driving but guilty of regulatory offence Crown moved to have video- taped statement of complainant's Case Image filler 3/31/05 1:46 PM Page 1 Defendant was charged with dangerous driving. He had been transport truck driver who on day of incident picked up load of scrap metal to be delivered to Hamilton from Kitchener On- tario. Defendant descended long road and could not stop while approaching traffic. Truck was stopped without hitting other ve- hicles on shoulder of road. It was determined 10 of 14 brakes on axles of tractor and trailer were out of adjustment. Defendant was required by regulations to check on brakes but failed to do so and he only performed "roll over" test which did not mea- sure brakes properly. Defendant was found not guilty of danger- ous driving but guilty of offence of driving commercial vehicle without prescribed inspection contrary to s. 107(5) of Highway Traffic Act (Ont.). LT Obtain Copies of Judgments Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $9.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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