Law Times

Law Times • December 13, 2010 towers. Respondent municipal corporation assessed current value of bank towers at $5 bil- lion. Assessment review board held that phrase "fee simple, if unencumbered" in defi ni- tion of "current value" in As- sessment Act (Ont.), required that bank towers be valued as if they were vacant at date of as- sessment. On appeal divisional court held that board's inter- pretation was wrong in law and allowed appeal. Court remitted matter to board to diff erently constituted panel. Appeal al- lowed in part. Appropriate standard of review was correct- ness. In context of income-pro- ducing property, "fee simple, if unencumbered" meant value calculated without reference to leases at other than market value. Offi ce towers were to be assessed in accordance with income approach using market rates and allowing for normal vacancy rate of 7%. However, there was no reason to return case to diff erently constituted panel and matter should be re- turned to same panel of board. BCE Place Ltd. v. Municipal Property Assessment Corp., Re- gion No. 9 (Oct. 15, 2010, Ont. C.A., Rosenberg, Arm- strong and Juriansz JJ.A., File No. C51420) Decision at 179 A.C.W.S. (3d) 510 was var- ied. 193 A.C.W.S. (3d) 1064 (13 pp.). Courts JURISDICTION Courts will only interfere in religious dispute where requirements of natural justice not satisfied by internal processes or where those internal processes exhausted Defendant Roman Catholic Episcopal Corporation of Dio- cese of Kingston sought stay of civil proceedings brought by plaintiff Father H. against Archdiocese. Action limited to claim for damages for con- structive dismissal. Father H. ordained Roman Catholic priest. He was appointed pas- tor of two churches but after concerns raised regarding im- proper use of parish funds and improper business association with young man, he was placed on administrative leave. De- spite ability to challenge deci- sion under Canon Law, Father H. did not do so. Archbishop, senior priest and ecclesiastical authority of Archdiocese, con- tinued to have concerns and ordered Father H. to undergo psychological assessment. As- sessor advised Father H. posed serious risk and recommended residential treatment before be- ing returned to active Ministry. Father H. refused to undergo treatment until being given opportunity to confront parish employees who conveyed con- cerns. Father H.'s faculties to exercise sacramental Ministry suspended. Father H. did not challenge decision although administrative act that could be challenged under Canon Law. He retained counsel to pursue remedy in civil courts. Decree of removal removing Father H. as Pastor made. Fa- ther H. had right to appeal but instead commenced proceed- ings. Father H. remains priest and Archdiocese has obliga- tion to support him. Stay of proceedings granted. Offi ce of pastor can be created only by way of Canon Law which also provides for term of offi ce and stipulates duties and responsi- bilities associated with fulfi lling that offi ce. Canon Law dictates circumstances under which of- fi ce of pastor can be brought to end. Although Father H. framed action as wrongful dis- missal, offi ce of Pastor eccle- siastic in nature. As such, Fa- ther H.'s removal as pastor not justiciable by courts. Courts will only interfere in religious dispute where requirements of natural justice not satisfi ed by internal processes or where those internal processes ex- hausted. Requirements of nat- ural justice satisfi ed. Reasons for concerns communicated to Father H. before each adminis- trative act taken. He was given opportunity to respond and access Canon Law remedies. Father H. refused to avail him- self of remedies which are quite broad and include monetary compensation. Nor did Father H. make any attempt to pursue remedy under Canon Law. Hart v. Roman Catholic Epis- copal Corp. of the Diocese of Kingston, in Canada (Aug. 31, 2010, Ont. S.C.J., Beaudoin J., File No. CV-08-0068-00) 193 A.C.W.S. (3d) 1167 (9 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY But for non-repair of road, crash would not have happened Plaintiff s suff ered injuries re- sulting from motor vehicle acci- dent. Road was unlit, unsigned and unlined. Road was bound- ary road between Oshawa and Scugog. No centre line was put on road because new boundary agreement was anticipated that would transfer duty to maintain road west to Oshawa and road east to Scugog. New agreement was not complete until after ac- cident. Defendants were jointly and severally liable for conse- quence of failure to maintain and keep road in reasonable re- pair from 1986 until new agree- ment came into eff ect in 2006. Road condition of hill on date of accident provided unreason- able risk of harm to motorists using ordinary care. Duty to keep road in reasonable repair was not met. But for non-repair of road crash would not have happened. Driver's negligence was not sole cause of crash. De- fendants failed to meet defence under s. 44(3)(a) of Municipal Act, 2001 (Ont.). Defendants knew of condition of non-re- pair; refused to use best eff orts to remedy it; and failed to do what was appropriate in signage and pavement markings. Th ere was no evidential basis for de- fence under s. 44(3)(b). Driver was driving at unreasonable rate of speed. No negligence was proven but unidentifi ed driver of other vehicle. Defendants were responsible to extent of CASELAW two-thirds. Driver was causal factor to extent of one-third. Deering v. Scugog (Township) (Oct. 5, 2010, Ont. S.C.J., Howden J., File No. 55125; 55403; 55404) 193 A.C.W.S. (3d) 1266 (93 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Exclusion of evidence would have had detrimental effect on administration of justice Accused charged with impaired driving, "over 80" and leaving scene of accident. Accused ap- plied to exclude evidence based on breach of s. 10(b) Charter rights. Offi cer stopped vehicle that matched description of vehicle which left scene of ac- cident. Accused, who was in back seat, was questioned while still in vehicle and was then ar- rested. Offi cer testifi ed accused admitted in police cruiser that he was driving at time of ac- cident. Application allowed, evidence excluded. Statements made in back seat of vehicle were elicited from accused while he was under detention and be- fore he was provided with right to counsel and right to remain silent. Offi cer had shifted focus of investigation to accused, who did not off er any information spontaneously but responded to direct questions. With regard to statement made in back seat of vehicle, accused's Charter rights were clearly infringed as he was not even given informational component and there was no explicit waiver. Statement in cruiser occurred after cautions, breath demand and rights to counsel were given. Accused did not in any way waive his rights and offi cer was under constraint not to question him until he had either exercised or waived rights. Statements treated in same man- ner for s. 24(2) Charter analysis given that they occurred within minutes of each other, offi cer did not cease questioning until accused was in position to exer- cise his rights, accused did not waive his right to counsel and second statement was closely connected both temporally and contextually to earlier breaches of accused's right to counsel. Charter breach was serious as accused was prime suspect in hit and run accident and was asked to implicate himself. Im- pact on accused's Charter rights was considerable. Exclusion of evidence would have had det- rimental eff ect on administra- tion of justice given that police were unable subpoena other people in car and "in dock" identifi cation of accused by witness was of little value. Ad- mission of statements would bring administration of justice into disrepute. R. v. Judge (Oct. 19, 2010, Ont. C.J., Bourque J., File No. 09-7990; 09-07991) 90 W.C.B. (2d) 534 (17 pp.). www.lawtimesnews.com Sentence PRINCIPLES Global sentence failed to respect totality principle Accused appealed global sentence of seven and half years' imprison- ment, less pre-sentence custody, for sexual assault, assault, assault with weapon, forcible confi ne- ment and breach of recognizance. Crown asked judge to impose global sentence of six years in ad- dition to pre-sentence custody. Trial judge refused two-for-one credit for pre-sentence custody and gave credit on 1.4-to-one basis. Appeal allowed, sentence of fi ve years' imprisonment, less pre-sentence custody, substituted. Sentencing judge did not explain why he exceeded Crown submis- sion. Trial judge did not explain application of totality principle to off ences and off ender. Global sentence imposed manifestly failed to respect totality principle. While these were serious off ences warranting penitentiary term, circumstances of off ences and record of off ender did not take them to level of seven and half year sentence. R. v. Richards (Nov. 1, 2010, Ont. C.A., Sharpe, MacFarland and Rouleau JJ.A., File No. C51629) 90 W.C.B. (2d) 580 (3 pp.). Threatening And Intimidation CRIMINAL HARASSMENT Fact that harassing conduct occurred at irregular times and on separate occasions not evidence in support of acquittal Accused appealed from two con- PAGE 15 victions for assaulting his former girlfriend while Crown appealed his acquittal on charge of ha- rassment. Subsequent to second alleged incident of assault com- plainant told accused she wanted nothing to do with him but he allegedly repeatedly called her, looked for her in public places and tried to get her to talk to him at her apartment resulting in verbal altercation with neigh- bour when he would not leave. Complainant spoke to police and they spoke to accused, who was co-operative and polite and indicated he would not contact complainant. After this accused allegedly slipped letter inviting complainant to his graduation under her apartment door. Af- ter this accused continued to send her things, phone her and otherwise attempt to contact her. Complainant then made second police report indicating that she was scared that accused was going to come after her and her new boyfriend. Appeal al- lowed, new trial ordered. Based on uncontradicted evidence, court found it was reasonable to infer that accused either knew or was wilfully blind to fact that complainant was harassed. Fact that harassing conduct occurred at irregular times and on sepa- rate occasions did not constitute evidence in support of acquittal. Trial judge engaged in specula- tion when he wondered if com- plainant unconsciously and in- advertently encouraged accused's behaviour. R. v. Menkarios (Oct. 4, 2010, Ont. S.C.J., Smith J., File No. 07-15502) 90 W.C.B. (2d) 524 (18 pp.). LT When More is Too Much Starting from $62.50 per month 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

• Cover
• Western Union
• To Plead Or Not
• Focus On Criminal Law