Law Times

Law Times • January 12, 2009 compelling sale of home. Re- spondent acquired home in 1968 for $39,000. When par- ties began cohabiting, balance on mortgage was $38,000 and home worth $60,000. Applicant invested $10,000 in home when she moved in. Property only in respondent's name but applicant had records demonstrating she contributed $97,400 to prop- erty, representing 50% of costs, over the past seven years. Appli- cant claimed she had also made equal payments on home for previous 23 years. Application allowed in part. Respondent had $22,000 equity in home at time of cohabitation but appli- cant contributed $10,000. Thus, respondent had $12,000 greater equity in home than applicant. Definite constructive trust in fa- vour of applicant given her on- going contribution to property. Applicant awarded 46% interest to account for initial unequal contribution. Immediate sale of home ordered. O'Neil v. Hyde (Oct. 7, 2008, Ont. S.C.J., Kershman J., File No. FC-08-789) Order No. 008/282/031 (7 pp.). Injunctions INTERLOCUTORY RELIEF Plaintiff had strong prima facie case that non-solicitation clause was enforceable Plaintiff provided insurance. Defendant signed agent's agree- ment. Under agreement defen- dant was to not to induce exist- ing policyholder to lapse, cancel or replace insurance for two years after termination. Defendant re- signed. Defendant joined man- aging general agency. Plaintiff sought injunction to restrain defendant from selling competi- tive and non-competitive prod- ucts to plaintiff policyholders and using plaintiff's confidential information to do so. Interim injunction was granted. Interim injunction was to continue in limited context. Defendant was restrained for two years from date of termination from induc- ing or trying to induce exist- ing policyholders of plaintiff to lapse, cancel or replace policies. Defendant could use indepen- dent knowledge of identities of former policyholders of plaintiff to sell non-competing products. Agreement was binding and en- forceable. Plaintiff had strong prima facie case non-solicitation clause was enforceable and there was breach of non-inducement clause. Plaintiff did not show strong prima facie case defen- dant breached confidential in- formation clause. Penncorp Life Insurance Co. v. Edison (Sep. 26, 2008, Ont. S.C.J., Tulloch J., Torts NEGLIGENCE No basis to interfere with allocation of fault among defendants Appellants were listing agents for vendor and agent for pur- chaser in connection with sale of property to be used as den- tal office. Following closing, purchaser learned that prop- erty did not have eight parking spaces required by applicable zoning by-law to permit its use as dental office. Purchaser sued File No. CV-07-03923-00) Order No. 008/275/036 (42 pp.). his lawyer for negligence and that action settled. Purchaser then commenced action against appellants and vendor of prop- erty, claiming damages for neg- ligence and misrepresentation. Trial judge found appellants and vendor liable in negligence and apportioned liability 50% to purchaser's lawyer, 20% to list- ing agent and his employer, 20% to purchaser's agent and his em- ployer and 10% to vendor. No basis to interfere with way trial judge allocated fault or negli- gence among defendants. It was not open to appellants to raise claim that vendor was unjustly enriched. Finally, trial judge did not err in finding that limitation period with respect to purchas- er's claim against appellants did not begin to run until purchaser first learned about parking prob- lem after closing date. Davenport v. Stakiw (Oct. 16, 2008, Ont. C.A., O'Connor A.C.J.O., Simmons and Lang JJ.A., File No. C46935) Appeal from 156 A.C.W.S. (3d) 112; 55 R.P.R. (4th) 310 dismissed. Order No. 008/294/049 (4 pp.). Wills And Estates WILLS No evidence of undue influence Motion by respondents for sum- mary judgment on applicant's challenge to validity of de- ceased's wills. Evidence clear that deceased had testamentary ca- pacity. Applicant argued respon- dent beneficiaries, the deceased's lawyer, doctor and accountant, had undue influence on de- ceased. Lawyer drafted will de- spite being beneficiary himself. Lawyer advised deceased to seek independent legal advice but she declined. Motion allowed. Simple fact of who beneficiaries were insufficient to meet appli- cant's burden of proof to show undue influence. Circumstances not suspicious. While it would have been preferable for lawyer to refuse to take directions from deceased given her bequest to him, this was not fatal to valid- ity of will. No evidence parties influenced deceased in any way other than assisting her with fi- nances while she was alive. Re- spondents fully disclosed nature of involvement with deceased's finances. Will valid. Challenge in part the fault of deceased for failing to seek independent le- gal advice on will so estate to pay costs of action. Travica v. Mailloux (Sep. 18, 2008, Ont. S.C.J., Tausend- freund J., File No. 06-CV-6950) Order No. 008/282/036 (7 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW No exceptional circumstances justifying judicial intervention Respondent applied for approval to construct facility. Project was turned down by panel. Respon- dent refilled application. Matter was to proceed before Joint Re- view Panel. Applicant's counsel could not attend hearing date set. Panel denied request to ad- CASELAW journ formal hearing concluding inconvenience to interveners did not justify adjournment. Panel concluded it expected applicant to find alternate counsel. Ap- plication for judicial review was dismissed. There were no excep- tional circumstances justifying judicial intervention. Applicant did not establish prejudice. Ap- plicants were premature in com- plaining of prejudice and de- nial of natural justice because it presupposed decision on merits that was adverse to applicant's interests. Conclusion that case should proceed as scheduled was not unreasonable. Alberta Wilderness Assn. v. Canada (Attorney General) (Sep. 19, 2008, F.C., Phelan J., File No. T-1380-08) Order No. 008/281/025 (9 pp.). Intellectual Property Industrial And PATENTS Application to set aside notice of compliance was dismissed Respondent applied to Minister for notice of compliance to sell drug in Canada by cross-refer- encing application filed by an- other generic. Cross-referenced application was prohibited from receiving notice of compliance. Respondent argued applica- tion was moot. Application to set aside notice of compliance granted respondent was dis- missed. Determination of issues was made given undertakings of Minister and of applicant. There was no evidence respondent was privy of other generic. It was not sufficient to rely on fact of cross- referencing to invoke preclusion. Sanofi-Aventis Canada Inc. v. Canada (Minister of Health) (Sep. 22, 2008, F.C., Hughes J., File No. T-1351-07) Order No. 008/281/024 (30 pp.). Professions BARRISTERS AND SOLICITORS Lawyer subject to Law Society complaints not entitled to interlocutory orders sought Applicant was lawyer. Appli- cant was subject to complaints filed with Law Society of Up- per Canada. Applicant brought motion for interlocutory order requiring R.C.M.P. to file cer- tified copy of complete investi- gation file for project and order directing Department of Jus- tice to provide written invento- ry of contents of investigation file. Motion was dismissed. There was no strong prima fa- cie case for Anton Piller order or bona fide claim for Norwich order. Judge already ruled s. 37 of Canada Evidence Act was not triggered and that court had no jurisdiction to require R.C.M.P. to provide evidence in relation to proceedings be- fore Ontario Court of Appeal or Law Society Hearing Panel. Request for directing depart- ment to provide written inven- tory of file was improper on interlocutory motion because applicant was entitled to relief only if applicant was successful on merits of application under ss. 37 or 38 of Act. Coady v. Canada (Director of Public Prosecutions) (Sep. 22, 2008, F.C., Martineau J., File No. T-268-08) Order No. 008/281/023 (9 pp.). www.lawtimesnews.com ONTARIO CRIMINAL CASES Breathalyzer PRESUMPTION -- "EVIDENCE TO THE CONTRARY" Amendments to s. 258 of Criminal Code applied retrospectively Accused charged with impaired driving and driving "over 80". Issue was whether recent amendments to s. 258 of the Criminal Code, in particular, amendments of s. 258(1)(c) and (d.1) and the newly enact- ed (d.01) were of retrospective or only prospective in effect. Relative amendments came into play after alleged offences were committed but before trail date. Accused intended to call "evidence to the contrary" by way of what is commonly referenced a "Carter defence". New amendments added sev- eral additional evidentiary re- quirements that had to be met to give rise to a doubt as to the accuracy and reliability of the breathalyzer readings and pro- scribed exclusive reliance on conventional Carter defence ev- idence as capable of giving rise to such doubt. Amendments to apply retroactively to accused's offences. Amendments were procedural and evidentiary and therefore had retrospective effect. R. v. Pfaller (Oct. 22, 2008, Ont. C.J., Green J.) Order No. 008/302/211 (10 pp.). PAGE 15 Charter Of Rights RIGHT TO COUNSEL Accused not diligent in exercising right to counsel Case Image filler 3/31/05 1:46 PM Page 1 Accused charged with impaired driving and driving "over 80". Tow truck driver, believing ac- cused was driving erratically, called police and followed his vehicle until it was stopped by officer. Officer arrested accused for impaired driving, advised him of his right to counsel, and demanded he provide a breath sample. Before accused provided breath samples he asked to speak to a particular lawyer which did not happen. Officer phoned named lawyers office and left a message and accused declined to speak to another lawyer or duty counsel when offered. Accused was then transferred to another detachment and officer tried to locate a home number for named lawyer by searching the "Canada 411" website on the internet, was unsuccessful and informed accused who again declined to speak with other counsel. Ac- cused's breath samples indicated blood alcohol level almost twice the legal limit Accused guilty of driving "over 80". Accused failed to establish his right to counsel had been infringed. Ac- cused was arrested well outside of normal business hours and it was clear the lawyer of choice was not available and, in the circumstances accused was not diligent in exercising his right to counsel. R. v. Kim (Nov. 5, 2008, Ont. C.J., De Filippis J., File No. 998 07 01458) Order No. 008/316/109 (8 pp.). 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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