The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50558
Law Times • January 26, 2009 Defendants brought motion for summary judgment seeking dis- missal of claim for expiry of limi- tation, or setting aside of order granting plaintiff leave to amend claim. Plaintiff filed claim after three-vehicle accident in which taxi driven by defendant and owned by second defendant struck plaintiff's vehicle. Plaintiff provid- ed notice of potential claim to par- ties within a year of accident but did not name defendants in claim filed two months after limitation period. Defendants later added following order from master ob- tained in reliance on discoverabil- ity principle and claim of special circumstances. Motion for sum- mary judgment granted. Omis- sion by counsel or representative of plaintiff does not constitute spe- cial circumstances. Plaintiff knew identities of defendants but failed to include them in original claim. Plaintiff aware her injuries were se- rious and permanent immediately following accident and no genuine issues of material fact concerning discoverability. Discoverability not a live issue for trial. Limitation period applied and no special cir- cumstances justified extension of limitation. Fekrta v. Siavikis (Oct. 29, 2008, Ont. S.C.J., Himel J., File No. 05-CV-291565PD2) Order No. 008/308/056 (8 pp.). Police DISCIPLINE Finding of misconduct by officer was properly upheld Appeal by officer from commis- sion upholding decision of hear- ing officer finding officer guilty of unlawful or unnecessary exercise of authority. Victim was walking in residential neighbourhood with his girlfriend and yelled some- thing at officer as he drove by. Af- ter arresting victim, struggle broke out between officer and victim and officer hit victim in the head three or four times. Appeal dis- missed. Commission reasonably concluded that finding of miscon- duct should be upheld. Wilson v. Ontario Provincial Po- lice Service (Oct. 15, 2008, Ont. S.C.J. (Div. Ct.), Carnwath, Swin- ton and Karakatsanis JJ., File No. 609/06) Order No. 008/294/037 (8 pp.). Professions BARRISTERS AND SOLICITORS Panel did not reach unreasonable decision in revoking licence for practising while suspended Application for judicial review of decision of Hearing Panel of Law Society which found appli- cant guilty of misconduct and revoked his licence. Applicant had been practising law while under suspension for failing to make an annual filing and fail- ing to communicate with Law Society. Applicant did not appear before Hearing Panel because he did not recognize its jurisdiction and had not exercised right to appeal to Appeal Panel pursuant to s. 43.232(1) of Law Society Act (Ont.). Application was dis- missed. Judicial review is statu- tory remedy. As applicant had not exhausted his statutory right to appeal his application was dis- missed. In any event there was no merit to his application. Appli- cation did not satisfy court that Hearing Panel had reached un- reasonable decision in revoking his licence for practising while his licence was suspended. Hodeeheehonto v. Law Society of Upper Canada (Oct. 31, 2008, Ont. S.C.J. (Div. Ct.), Marsh- man, Aitken and Swinton JJ., File No. DC-08-052) Order No. 008/309/032 (2 pp.). Torts LIBEL AND SLANDER Notice must be given to all defendants in libel action arising out of newspaper publication Motion judge did not err in grant- ing summary judgment dismissing appellant's counterclaim against re- spondent. Appellant was required to provide respondent notice un- der s. 5(1) of Libel and Slander Act (Ont.), prior to delivering his counterclaim. Notice must be giv- en to all defendants in libel action arising out of newspaper publica- tion. Fact that appellant's claim in present case was brought by way of counterclaim was not reason to depart from this established case law. Motion judge also properly dismissed appellant's motion to amend his statement of defence to include defence of equitable set- off. Proposed amendments would have no practical consequence. Astley v. Verdun (Oct. 21, 2008, Ont. C.A., MacPherson, Cronk and Rouleau JJ.A., File No. C48843) Appeal from 169 A.C.W.S. (3d) 912 dismissed. Or- der No. 008/302/066 (2 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Intentional shove at rally constituted assault Accused charged with assault. In the context of a rally or protest at the site of a Six Nations operated smoke shop accused's left hand came into contact with complain- ant's chest, an intentional act that occurred without complain- ant's consent and captured on video. Accused guilty. Even if the maxum de minimus non cu- rat lex applied to criminal law in Canada it was not applicable in this case. Accused's actions were an intentional shove that caused complainant to step back. Crown proved beyond reasonable doubt accused assaulted complainant. R. v. Chapman (Nov. 3, 2008, Ont. C.J., Harris J., File No. 1111-998-07-869-00) Order No. 008/312/010 (9 pp.). Breathalyzer APPROVED INSTRUMENT Bill C-2 had retrospective effect Accused was charged with op- erating motor vehicle over 80. Accused sought ruling Bill C-2 as applied to his case had no retrospective application. There was nothing in legislation abol- ishing defence. New provisions only stated such evidence is not sufficient. Person's blood alco- hol could be lower if he or she downed several drinks and was arrested before alcohol was ab- sorbed. Legislation had retro- spective effect. CASELAW R. v. Vavrishkin (Nov. 7, 2008, Ont. C.J., Kenkel J.) Order No. 008/316/119 (14 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME 14-month delay in impaired driving case led to stay of proceedings Accused charged with impaired driving and "over 80". Over 14 months elapsed from charge to trial. Accused, in her third year of a University Social Work program at time of hearing, was unable to secure required community place- ment without the benefit of a po- lice clearance for her employment. None of the time between the first adjourned trial through and in- cluding the second adjournment or efforts to reschedule could be attributable to a delay occasioned on the part of the defence. Appli- cation granted, proceeding stayed. Institutional/Crown delay equated to approximately 10.2 months. Uncertainty court may have had in regard to additional legal bills or stated anxiety and sleep disor- ders was of limited consequence in so far as accused's evidence in regard to how the delay impacted her education and career path was clearly pronounced. Accused now had to complete her block place- ment during the summer months between her second and third year whereas if she could have com- pleted her placement during the school year she would have had her summer available for a paying job. R. v. Adair (Nov. 3, 2008, Ont. C.J., Campbell J.) Order No. 008/312/008 (8 pp.). Criminal Organization Legislation GENERAL Hell's Angels Motorcycle Club was "criminal organization" Accused pleaded not guilty to a charge of being a member of a criminal organization who in- structed others to commit indict- able offences for the benefit of, at the direction of, or in associa- tion with a criminal organization, contrary to s. 467.13(1) of the Criminal Code. The only issue was whether the Hell's Angels Motorcycle Club of Canada was a criminal organization. Guilty. Ex- tensive, detailed, and corroborated evidence from an expert on the Hell's Angels and from a former executive member of the Hell's Angels proved beyond a reason- able doubt that the Oshawa and Niagara Chapters would meet the definition of a criminal organiza- tion within the meaning of the Criminal Code. R. v. Wagner (Sep. 30, 2008, Ont. S.C.J., McMahon J., File No. F-669/08) Order No. 008/308/001 (58 pp.). Disclosure DUTY ON CROWN Occurrence report not subject to Criminal Code procedures for production of third party records Accused charged with sexual as- sault and sexual interference with witness's daughters. Accused sought an order for production and disclosure of a Police Service occurrence report pertaining to witness. Occurrence report was ten years old. Copy of occurrence report ordered to be provided to www.lawtimesnews.com counsel for accused. Fact provin- cial privacy of information laws pertain to police records in an im- portant factor but is not determi- native of the issue as to whether a particular record should be subject to the s. 278.1 Criminal Code re- gime. Police had already disclosed the occurrence report in issue to the Crown. Neither Crown nor witnesses counsel asserted the dated occurrence report con- tained any information where there would be a reasonable ex- pectation of privacy. Occurrence report not subject to the Crimi- nal Code procedures for produc- tion of third party records in ss. 278.1-278.9. In order for accused to make full answer and defence, it would be of some use to de- fence counsel to know witness's knowledge of and prior contact with criminal justice system. R. v. L. (C.) (Oct. 27, 2008, Ont. C.J., Lipson J.) Order No. 008/312/001 (4 pp.). Environmental Law AIR POLLUTION Accused acquitted of permitting discharge of contaminant Trial of the accused for permitting the discharge of a contaminant, namely odour, into the natural en- vironment that caused an adverse effect. Odour, which the com- plainants smelled in their homes, was alleged to come from the ac- cused's landfill site. Crown main- tained that the accused did not use due diligence in removing the source of the odour because it did not find or correct the true source. Accused maintained that it took all reasonable and careful steps to methodically locate and then eradicate the source of the odour and thereby remove it from the environment. Accused acquitted. PAGE 19 There was an off-site odour that emanated from the landfill to vari- ous locations. Based on the com- plaints about the smell and impact of the odour it caused an adverse effect. Accused had an honest and reasonable belief that it and the Ministry of the Environment were working together in a co-operative effort to solve a serious, mutual problem. Accused exercised every reasonable precaution to avoid committing the actus reus of the offence. R. v. Sault Ste. Marie (City) (Nov. 6, 2008, Ont. Prov. Offences. Ct., Tennant J.P., File No. 0171) Order No. 008/324/137 (22 pp.). Fraud PROOF OF OFFENCE Accused found guilty in relation to e-mail fraud scheme Case Image filler 3/31/05 1:46 PM Page 1 Accused charged with fraud. Com- plainant, a Kentucky resident, was mixed up in an e-mail fraud scheme wherein she was supposed to deposit various moneys into ac- counts for various fees in return for which $8.6 million would be sent to her by a dying widow in Ku- wait who wanted the funds to be used for charity. Certain amounts from the fraud went into two of accused's bank accounts. Accused guilty. Accused was evasive and inconsistent in her testimony. Sig- nature on banking documents was similar to accused and linked to ac- cused's identification information. Accused's version of events, that her accounts were used against her knowledge by unknown fraudsters made no sense as it would have been easier and more appropriate for the alleged identity thieves to open new accounts accused would not have been aware of. While Crown had not proven, nor was 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. Via E-mail Cost per case $12.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book Inc. account number. Cheques are to be made payable to Canada Law Book Inc. Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code:______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 *Add 15% PST & GST on all orders