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Law Times • augusT 10/17, 2009 no unusual circumstances that would permit review of access provisions. Children's Aid Society for the Dis- tricts of Nipissing and Parry Sound v. P. (S.) (May 11, 2009, Ont. C.J., Duchesneau-McLachlan J., File No. C 236-98) Order No. 009/145/044 (6 pp.). Injunctions INTERLOCUTORY RELIEF Interim injunction to restrain breach of restrictive covenants was refused Motion for interim injunction to restrain breach of restrictive covenants contained in franchise agreement, purchase agreement and consulting agreement. Par- ties entered into franchise agree- ment. Franchise arrangement was not commercially successful. De- fendants purported to withdraw from agreement and went back to operating its own courier servic- es. Plaintiffs requested order re- straining defendants, during and for two-year period following ter- mination of franchise agreement, from being engaged in business operating in competition with plaintiffs. Motion dismissed. Plaintiffs failed to establish that they would experience irreparable harm if their request for interim injunction was refused. There was not strong prima facie case that defendants agreed to refrain from operating business that was same or similar to franchised business. Balance of convenience favoured defendants. Dynamex Canada Franchise Holdings Inc. v. P&D Invest- ments Ltd. (May 21, 2009, Ont. S.C.J., Marrocco J., File No. 09-CV-00371438) Order No. 009/145/039 (24 pp.). Labour Relations ARBITRATION Phrase "presently in effect" in collective agreement not ambiguous Application by union for judi- cial review of arbitration award. Union filed grievance on basis employer breached collective agreement by not providing same level of coverage as under previous plan. Arbitrator held language "presently in effect" was clear and unambiguous and meant the level of coverage in ef- fect when agreement was signed. Application dismissed. Language in provision not ambiguous so ar- bitrator correct in using ordinary meaning approach and disallow- ing extrinsic evidence. Union's position based on alleged mutual understanding between it and employer but the only question before the arbitrator was the lan- guage in the agreement. Belleville Professional Fire Fights Assn. v. Belleville (City) (May 22, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Low and Ray JJ., File No. 56/06) Order No. 009/148/043 (5 pp.). Landlord And Tenant FORMALITIES OF LEASE Offer did not constitute lease but was merely preparatory Parties signed offer to lease bar. It was turnkey transaction. Defen- dant deposited cheques for first and last months rent. Plaintiff claimed plaintiff never received key. Lease was never signed. Of- fer did not constitute lease but was merely preparatory. Plaintiff was given only storage room key. Plaintiff did not have possession. Keys would not be given until insurance was in place. Insurance was never placed. Lease did not depend on purchase of liquor inventory. Letter of credit was to be returned to bank for cancella- tion. Defendants were ordered to return deposit. Salman v. 1152030 Ontario Inc. (May 27, 2009, Ont. S.C.J., Cameron J., File No. 07-CV- 342695PD3) Order No. 009/148/003 (8 pp.). Real Property EASEMENTS Rights-of-way were not abandoned Application for order expunging rights-of-way, and cross-applica- tion for declaration that defen- dants acquired rights-of-way by prescription. Defendants' prop- erty abutted plaintiffs' lakeside property. Defendants' lot was dominant tenement and plain- tiffs' lot was servient tenement in respect of rights-of-way expressed in number of deeds for each par- cel. Rights-of-way provided de- fendants' with right to cross over plaintiffs' lot in order to access lake. Application and cross-ap- plication dismissed. Rectification of defendants' deed was ordered and written submissions were ordered. Rights-of-way had not been abandoned by defendants or predecessors in title. There was no demonstrated intent to aban- don. There had been undue ex- pansion of rights-of-way. Lywood v. Hunt (May 14, 2009, Ont. S.C.J., Lauwers J., File No. CV-08-88643) Order No. 009/145/027 (17 pp.). Torts ASSAULT AND BATTERY Action arising from hockey fight was allowed in part Action by plaintiff for tort of as- sault and battery. Plaintiff and defendant were participating in recreational hockey tournament. Plaintiff and defendant began fighting and defendant punched plaintiff in face, dropping him to his knees and breaking his jaw in three places. Defendant argued that plaintiff had consented to fight by high sticking him when he did not have the puck and jos- tling with him. Action allowed in part. Plaintiff was unaware he in- jured defendant with high stick. When he realized, he approached defendant, for what appeared to be to apologize. However, parties began arguing and jostling each other, which did create some im- plied consent. Plaintiff did not consent to facial injuries, howev- er, as he did not remove helmet. Referee reported that defendant lifted plaintiff's helmet at time of punch. Plaintiff's damages re- duced for his failure to control his stick, which led confrontation. Leighton v. Best (May 21, 2009, Ont. S.C.J., Riopelle J., File No. CV-04-003039-SR) Order No. 009/148/048 (10 pp.). LIBEL AND SLANDER Libel claim did not specify words complained of Appeal by plaintiff from order striking his statement of claim as disclosing no cause of action. Plaintiff's action alleged libel CASELAW and slander. Basis for slander claim was that defendant, who plaintiff acted as real estate agent for, accosted him at office and called him a crook. Basis for libel claim was letter sent to plain- tiff and employer that advised a complaint against plaintiff was forthcoming. Appeal dismissed. No basis for slander claim as no one but plaintiff heard remark. Libel claim deficient as it did not specify words complained of. Letter also not sent to third party as it was sent to plaintiff at his work address and both he and employer were named in action commenced shortly after. Presutti v. Varone (May 27, 2009, Ont. C.A., Goudge, Sharpe and Armstrong JJ.A., File No. C49637) Order No. 009/148/038 (5 pp.). Workers' Compensation APPEAL Conclusion that applicant did not suffer permanent impairment was reasonable Applicant's appeal was allowed in part. Applicant was found not have initial entitlement for ac- cident while employed by com- mission in 1996. Applicant was found to have initial entitlement on aggravation basis for accident that occurred in 1997 and was entitled to health care benefits. Applicant was found not to be entitled to temporary disability benefits in respect of 1997 acci- dent because applicant did not lose time off work. Applicant was found not to have sustained permanent impairment as result of 1997 accident. Application for judicial review was dismissed. Tribunal considered medical re- cords. Conclusion was reasonable in light of evidence as whole. Sec- tion 4(4) of Workers' Compen- sation Act (Ont.), was not ap- plicable because tribunal did not find equality in evidence for and against issue. It was reasonable for decision to be based on record without referring questions to medical advisor or health profes- sional. Court would not re-weigh evidence. Kamara v. Workplace Safety & Insurance Appeals Tribunal (May 18, 2009, Ont. S.C.J. (Div. Ct.), Wilson, Lederman and Low JJ., File No. 439/08) Order No. 009/148/023 (5 pp.). ONTARIO CRIMINAL CASES Charter Of Rights RIGHT TO COUNSEL Mere presence of video camera not enough to found Charter breach Accused appealed his conviction for impaired driving. Accused testified that he believed his con- versation was being recorded, and that he could not speak freely when speaking to his counsel of choice. Trial judge found that when accused was speaking with his counsel, he did not have a reasonable belief that the video camera allowed the officers to overhear what he was saying. Ap- peal dismissed. Mere presence of a video camera is not enough to found a Charter breach in fact or a reasonable belief in a breach www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM by accused. Video tape of accused supported the finding that accused failed to show any signs of inhibi- tion when talking with counsel. Conclusions of trial judge regarding impairment were reasonably made and based on the evidence before him. Off topic, jocular remarks by trial judge were unfortunate but did not meet the test for bias. R. v. Thompson (May 14, 2009, Ont. S.C.J., MacLeod-Beliveau J., File No. 052224) Order No. 009/139/005 (14 pp.). Defences GENERAL Accused could not tender investigative hearsay evidence Application by the accused to raise the defence of inadequate inves- tigation of an alternate suspect named C and as part that defence to tender some investigative hear- say. Accused was charged with second degree murder. Crown's case on the issue of identity was circumstantial. There were no wit- nesses to the murder. Location of the murder, as opposed to the lo- cation of the deceased's body, was not found. Case for the Crown on the issue of identity consisted of evidence of motive, opportunity and other suspicious circumstances that implicated the accused. Ap- plication allowed in part. Accused successfully applied to exclude the testimony of C as a witness. Such excluded evidence was not relevant to the defence of inadequate in- vestigation. There was sufficient nexus between C and the murder to permit the accused to raise the inadequacy of the investigation of him as an alternative suspect. Ac- cused could tender evidence but not investigative hearsay of certain IMPAIRED DRIVING AND "OVER 80" Bill C-2 amendments operated only prospectively Application by the accused, who was charged with driving with a blood alcohol level over the legal limit, while operating a motor ve- hicle on October 14, 2006 for a declaration that the amendments to s. 258(1)(c), (d.1) and (d.01) of the Criminal Code that were made by Bill C-2, operated only prospectively. Application allowed. Amendments created a substan- tive change related the defences to the charge that the accused faced. There was a change in the onus of proof in that it imposed the requirement on the accused to establish a defence. Carter de- fence was also transformed by the amendments so that it was no longer the same defence. Amend- ments therefore operated only prospectively. R. v. Kelly (Mar. 18, 2009, Ont. C.J., Lapkin J.) Order No. 009/155/210 (9 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. BestCase includes: • Canadian Criminal Cases • Dominion Law Reports • Labour Arbitration Cases • Land Compensation Reports • Ontario Municipal Board Reports • All-Canada Weekly Summaries • Canadian Labour Arbitration Summaries • Weekly Criminal Bulletin • Canada Law Book's Western Digest Services No more photocopying required to get copies of decisions exactly as they appear in a law report! 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In attacking the adequacy of the investigation the Court outlined the circum- stances that the accused could prove because their probative value was not significantly exceeded by their prejudicial effect. It also out- lined the permissible reply by the Crown to the accused's attack on the adequacy of the investigation. R. v. Spackman (Mar. 2, 2009, Ont. S.C.J., Trafford J.) Order No. 009/161/171 (105 pp.). Motor Vehicles