Law Times

Law Times • December 14, 2009 ercised its power of sale option and was unsuccessful selling property. CMHC paid bank out. CMHC sold property and experienced shortfall in amount of $22,364.31. Bankrupt was discharged. Bankrupt applied for mortgage insurance and sum of $113,239.81 was paid to bank. Application granted. Bank and insurer were entitled to satisfaction of shortfall. Re- mainder of insurance proceeds were paid into court, one-half of which was to be credited to trustee in bankruptcy and one- half to deceased man's estate. Royal Bank of Canada v. Ward (Oct. 15, 2009, Ont. S.C.J., Whitten J., File No. 08-6919) Order No. 009/299/002 (6 pp.). Family Law CHILD WELFARE Permanency for child could only be achieved through adoption Motion by society for sum- mary judgment for fi nal order making child Crown ward without access for purposes of adoption. Child was appre- hended at birth as a result of mother's inability to manage her own diffi cult behaviour, including drug use, lack of prenatal care, lack of housing, criminal involvement and fail- ure to complete anger manage- ment program. Child had been in care for 41 months. Motion granted. Th ere was no genuine issue for trial. Child was child in need of protection. Mother had made no progress in im- proving her parenting skills during child's life. Permanency for child could only be achieved through adoption. Children's Aid Society of Hamil- ton v. L. (A.D.) (Oct. 19, 2009, Ont. S.C.J. (Fam. Ct.), Pazaratz J., File No. C-146-98) Order No. 009/299/012 (31 pp.). Human Rights Legislation CIVIL ACTIONS Ontario Human Rights Commission was not entity that could be sued Motion by defendants for or- der striking out statement of claim as disclosing no reason- able cause of action. Plaintiff had been terminated by de- fendant employer for perfor- mance reasons. Plaintiff ap- plied for employment with two other defendants but was not granted interview. Defendant recruiting fi rm had screened plaintiff 's application for one of these defendants. Plaintiff un- successfully fi led complaints of discrimination with defendant Ontario Human Rights Com- mission. Defendant solicitors represented other defendants before defendant commission. Plaintiff brought action against defendants for damages for various causes of action, par- ticularly defamation. Motion granted in part. Statements of claim were struck and leave to amend was denied except in relation to wrongful dismissal claim against employer. Prior authorities had conclusively held defendant commission was not entity that could be sued. In any event, many com- plaints against defendant com- mission were matters for judi- cial review rather than causes of action. Further, plaintiff did not properly plead elements of or material facts for defama- tion or other causes of action. In addition, absolute privilege applied to proceedings before defendant commission. Coote v. Ontario (Human Rights Commission) (Oct. 15, 2009, Ont. S.C.J., Daley J., File No. CV-08-4867-00; CV- 4868-00; CV-4869-00) Order No. 009/292/033 (52 pp.). Professions BARRISTERS AND SOLICITORS Pre-conditions for charging order satisfied Motion by solicitor for charg- ing order for unpaid account under s. 34 of Solicitors Act (Ont.). Contingency fee ar- rangement on three personal injury matters. Solicitor re- moved from record on own motion. Order that solicitor have fi rst charge on any judg- ment or settlement arising out of two of three actions for all reasonable disbursements in amount to be determined on assessment and for fees in amount to be determined on assessment, said amount to be within percentage range set out in retainer agreement. No charging order granted with re- gard to third action for which court had already ordered that 25% of all funds payable to be held in trust pending fi nal determination of what was ow- ing to solicitor. Charging order may be granted under s. 34 of Act for fees and disbursements that may be owing under con- tingent fee arrangement. Pre- conditions for charging order satisfi ed. Available funds would fl ow from judgment or settle- ment of civil actions. Solicitor had preserved client's right to sue which was chose in action and therefore property. Client could not pay fee other than out of judgments or settlements. Mpampas v. Steamatic To- ronto (Nov. 9, 2009, Ont. S.C.J., Belobaba J., File No. 03-CV-251016CM3; 03-CV-254636CM3; 05-CV- 300997PD3) Order No. 009/314/192 (4 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Health-care aide acquitted of assault and uttering threats Trial of the accused for assault and for uttering death threats. Accused was a health care aide who worked in the special care unit of a senior citizens home. She was alleged by another worker to have shaken the head of a resident and to have kicked the resident in the shin. She was also alleged to have CASELAW threatened the other worker. Accused acquitted of both of- fences. Regarding the threaten- ing charge the Court accepted the accused's testimony that she drove by the other worker's home, honked her horn and gave her the fi nger. She denied that she made any verbal state- ments or other gestures to her. Witness to the incident only saw the accused make the fi n- ger gesture. Regarding the as- sault the Court found that the accused's version of events, that she did not slap or kick the res- ident, was suffi ciently plausible to raise a reasonable doubt that she committed the off ence. R. v. Butera (Nov. 3, 2009, Ont. C.J., McKay J., File No. 080296) Order No. 009/313/025 (7 pp.). Charter Of Rights SEARCH AND SEIZURE Seizure was result of inducement and therefore unreasonable Accused charged with two counts of careless storage of fi re- arm. Accused applied for exclu- sion of evidence based on breach of s. 8 Charter rights. Accused was police offi cer arrested in re- lation to allegation of domestic assault. Offi cers agreed to release accused from custody on prom- ise to appear if he turned over fi rearms in his possession. Police found fi rearms stored under bed with no trigger locks. Applica- tion allowed, evidence excluded. Consent of accused was induced by promising his release from custody in exchange for consent to attend his home and seize guns. End result of situation was seizure. Seizure was result of in- ducement and therefore unrea- sonable. Although offi cers acted in good faith, accused was given ultimatum which tempted him to sacrifi ce his Charter rights in order to secure his freedom. Al- leged assault was push on bed which neither complainant nor Crown wished to pursue. Weap- ons were unloaded and not in plain view. Violation was serious as it involved private dwelling home. Other investigatory tech- niques were available to police. Factors that militated exclud- ing evidence outweighed those that went to its inclusion. Court chose to dissociate itself from such conduct. R. v. McKay (Oct. 26, 2009, Ont. C.J., Grossman J.) Order No. 009/313/017 (7 pp.). TRIAL WITHIN REASONABLE TIME Societal interest in having trial on merits outweighed accused's s. 11(b) Charter rights Accused charged with assault with weapon and assault caus- ing bodily harm. Accused ap- plied for stay of proceedings based on breach of s. 11(b) Charter rights. Proceedings delayed for seven months as re- sult of trial judge's absence on medical leave. Accused claimed he suff ered prejudice as result of delay which merited referral to psychologist. Accused testi- fi ed that his bail conditions made it diffi cult for him to fi nd employment. Application dismissed. Psychologist could www.lawtimesnews.com not have drafted letter fi led with Court. Psychologist did not discuss with accused his in- volvement in court. Psycholo- gist felt accused required as- sessment due to long standing family problems, not due to trial matter. Although proceed- ings caused accused stress, his release terms did not impede his ability to work or be with his children. Minimal conse- quences to accused's fi nances and liberty as result of his terms of release. Defence was not available on many dates off ered by Court to complete matter. Accused's right to fair trial not prejudiced in any way. Delay as result of illness of par- ticipant in proceedings attrib- uted to inherent time require- ments of case. Serious issue of domestic violence. Societal in- terest in having trial considered on merits outweighed accused's s. 11(b) Charter rights. R. v. Ibrahim (Nov. 4, 2009, Ont. C.J., Nicholas J.) Order No. 009/313/022 (12 pp.). Mens Rea MISTAKE OF LAW Accused established officially induced error Accused was charged with knowingly concealing material circumstance from Citizenship Canada. Accused signed her citizenship papers without dis- closing her charge of criminal negligence causing death which occurred after her application form was entered. Accused was told by two separate immigra- tion offi cials that there was no concern regarding those charg- PAGE 15 es. Charges stayed. Offi cially in- duced error established. Crown proved accused knew wrongful- ness of act but she was excused due to a mistake at law. Accused was suffi ciently diligent by ex- plaining her situation to two separate government offi cials. R. v. Khanna (Sep. 17, 2009, Ont. C.J., Ray J., File No. 12003787) Order No. 009/266/005 (7 pp.). Release From Custody FAILURE TO APPEAR Onus was on sureties to show why full forfeiture should not be ordered Respondents committed for extra- dition and released on bail pend- ing judicial review. Respondent H.'s wife and friend each sure- ties in the amount of $60,000. Respondent M.'s parents sure- ties in the amount of $500,000. Respondents failed to surrender themselves as required. Minister of Justice applied for forfeiture of recognizances. Application granted in part. Onus on sureties to show why full forfeiture should not be ordered. Due diligence of sureties is relevant consideration. Full forfeiture ordered against H.'s wife. $20,000 forfeiture ordered against H.'s friend, who exercised some supervision and suff ered a business reverse. $180,000 forfei- ture ordered against M.'s parents unless M. taken into custody within 15 days. Canada (Minister of Justice) v. Mirza (Oct. 20, 2009, Ont. C.A., Doherty, Rosenberg, Sharpe, Simmons and Arm- strong JJ.A., File No. M36286) Order No. 009/295/037 (35 pp.). LT Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! 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