Law Times

LAW TIMES / JULY 14/21, 2008 tion in custody proceedings un- der Divorce Act (Can.). It was appropriate for court to hear child's voice whether or not child was party. Child would not be prejudiced by not being party. No medical examination of child was ordered. Perino v. Perino (Mar. 17, 2008, Ont.S.C.J., Murray J., File No. FS-06-57465-00) Order No. 008/079/035 (15 pp.). Injunctions INTERLOCUTORY RELIEF Interlocutory injunction granted respecting use of churches Application for interlocutory injunction. There had been sub- stantial difference in approach amongst Anglican Church over treatment of same-sex unions and rift developed between par- ties. Plaintiffs were Synod and individually named administra- tors of three Anglican churches and defendants were wardens of three parishes. This was to de- termine interim use of churches. Plaintiffs submitted that proper- ties should be shared between parties until ultimate resolution of larger issues while defen- dants argued that this approach was entirely unworkable given mistrust and level of division between parties. Application granted. Plaintiffs had presented case that was not frivolous or vexatious but presented serious issue to be tried. Court was not persuaded that dissident parish- ioners would suffer irreparable harm if they were forced to leave church buildings or share prem- ises. However, Synod would suf- fer irreparable harm. Plaintiffs were willing to share property while defendants were not. De- fendants might be adequately compensated by damages if they were successful at trial. Plaintiffs satisfied test for injunction. Synod of the Diocese of Niagara v. Bales (May 5, 2008, Ont.S.C.J., Milanetti J., File No. 08-01105) Order No. 008/128/006 (19 pp.). Insurance LIABILITY INSURANCE Motion judge made no reversible error in finding that damage to condominium building caused by insured general contractor B.'s negligence in installing de- fective dewatering system was compensable damage to third party property caused by occur- rence to which L.'s commercial general liability policy must re- spond. York Region Condominium Corp. No. 772 v. Lombard Canada Ltd. (Apr. 14, 2008, Ont. C.A., Feld- man, Armstrong and MacFarland JJ.A., File No. C46822) Appeal from 155 A.C.W.S. (3d) 676; 85 O.R. (3d) 294; 51 C.C.L.I. (4th) 288 dismissed. Order No. 008/107/020 (7 pp.). Limitations MOTOR VEHICLES Limitation period in s. 206(1) of Highway Traffic Act (Ont.) did not apply Plaintiff stood on rear bumper of vehicle to unpack vehicle. Rear tailgate collapsed caus- ing plaintiff to fall and injure wrist. Plaintiff claimed tailgate latch mechanism on vehicle was defective. Defendant ar- gued action was for damages occasioned by motor vehicle and limitation period was two years. Defendants' motion for summary judgment was dis- missed. There was genuine is- sue as to when material facts ought to have been discovered. Plaintiff could not possibly suc- ceed at trial on discoverability issue. Given inordinate delay it was incumbent on plaintiff to explain inactivity. Lack of funds was not valid reason to extend statutory limitation pe- riod. There was genuine issue for trial as to whether claim was for damages occasioned by mo- tor vehicle but could be decided on evidence presented. Dam- ages claimed did not constitute damages occasioned by motor vehicle. Limitation period in s. 206(1) of Highway Traffic Act (Ont.), did not apply. Claim was subject to six-year limita- tion period in Limitations Act (Ont.). Claim was not statute barred. Longley v. General Motors of Canada Ltd. (Mar. 17, 2008, Ont.S.C.J., Henderson J., File No. SR 4136/06) Order No. 008/079/036 (16 pp.). Wills And Estates ESTATE ADMINISTRATION Application judge was entitled to refuse to award costs out of estate Appellant and brother were co- beneficiaries of mother's estate. Application judge dismissed ap- pellant's application for order that he was 100% beneficial owner of two joint bank accounts with mother. Trial judge refused to award costs to appellant out of estate. In assessing costs trial judge noted that order for trial of issue was as result of information advanced by appellant for first time in oral argument. Proceed- ings were unduly complex and previous offers would have been beneficial to appellant. Applica- tion judge accounted for Rules of Civil Procedure (Ont.), Rule 57 factors and Rule 49 offers to settle and conduct of parties including conduct of appellant who was attempting to re-litigate matters already decided. It was within application judge's dis- cretion to refuse to award costs to appellant out of estate and his order was not plainly wrong. Painter v. Painter Estate (Mar. 25, 2008, Ont. C.A., Weiler, Moldaver and Juriansz JJ.A., File No. C46451) Order No. 008/086/125 (4 pp.). FEDERAL COURT OF APPEAL Customs And Excise SEIZURE Body/chassis seized was not "vehicle" Application judge did not err in concluding that material seized in shipping container was not vehicle within meaning of s. 2 of Motor Vehicle Safety Act (Can.). While body/chassis seized in this case at time of im- portation had potential for con- version into vehicle, that con- version would not be possible within relatively short period of CASELAW time with relative ease. Macro Auto Leasing Inc. v. Can- ada (Minister of Transport) (Apr. 16, 2008, F.C.A., Letourneau, Sharlow and Trudel JJ.A., File No. A-284-07) Appeal from 158 A.C.W.S. (3d) 67; 48 M.V.R. (5th) 192 dismissed. Order No. 008/126/122 (5 pp.). Intellectual Property Industrial And TRADE-MARKS Respondent did not establish adoption and use of marks related to Olympics Application judge granted appli- cation for judicial review brought by SYI Fund to set aside decision by Registrar to publish as official marks of respondent words "See You In Torino", "See You In Bei- jing", and "See You In Vancou- ver". Application judge based his decision on his finding that re- spondent had not established its adoption and use of marks. No palpable and overriding error. See You In - Canadian Athletes Fund Corp. v. Canadian Olympic Committee (Apr. 8, 2008, F.C.A., Letourneau, Evans and Pelletier JJ.A., File No. A-246-07) Appeal from 157 A.C.W.S. (3d) 162; 57 C.P.R. (4th) 287 dismissed. Order No. 008/120/003 (5 pp.). FEDERAL COURT Environmental Law ENFORCEMENT Failure to give justification for recommendation on greenhouse gas emissions short circuited two-step decision-making process Panel's report concerned envi- ronmental impact assessment of project. Panel recommended to Department of Fisheries and Oceans that project receive au- thorization. Applicants claimed environmental assessment did not comply with mandatory steps in Canadian Environmen- tal Assessment Act and in Panel's Terms of Reference. Application for judicial review was allowed in part. Panel was to provide rationale for conclusion that proposed mitigation measures would reduce potentially adverse effects of project's greenhouse gas emissions to level of insignif- icance. Panel's failure to provide justification for its recommen- dation on greenhouse gas emis- sions short circuited two-step decision-making process. It was inappropriate and ineffective to require entire panel review to be conducted second time. Pembina Institute for Appropri- ate Development v. Canada (At- torney General) (Mar. 5, 2008, F.C., Tremblay-Lamer J., File No. T-535-07) Order No. 008/078/047 (50 pp.). Professions BARRISTERS AND SOLICI- TORS Law firm removed for conflict of interest Prothonotary ordered law firm B. removed as solicitors of record for plaintiffs on grounds that B. was in conflict of interest aris- ing from fact that lawyer who was representing plaintiffs in www.lawtimesnews.com 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 13% PST & GST on all orders this patent infringement action had previously acted on behalf of defendant API in prior patent in- fringement lawsuit. Lawyer had received confidential information concerning API while he was en- gaged in prior retainer. Risk ex- isted that confidential informa- tion would be used to prejudice of API. Prothonotary committed no reviewable error in granting API's motion. Tazxo Holdings Inc. v. Advantage Products Inc. (Apr. 10, 2008, F.C., Heneghan J., File No. T-2088-05) Appeal from 160 A.C.W.S. (3d) 408; 60 C.P.R. (4th) 421 dismissed. Order No. 008/120/019 (12 pp.). ONTARIO CRIMINAL CASES Charter Of Rights SEARCH AND SEIZURE Gun discovered independently of warrant not excluded from evidence Accused charged with numer- ous offences, including six weapons-related offences. Ac- cused applied to exclude hand- gun from evidence based on breach of s. 8 of Charter. Po- lice received information from confidential informant that ac- cused had handgun, ammuni- tion and stolen property in his apartment. Police obtained tele- warrant to search apartment. Just before search executed, police officers observed some- one throw sock out of apart- ment window which landed in neighbour's yard. Sock con- tained handgun. Accused was PAGE 15 sole occupant of apartment. Accused challenged validity of telewarrant. Application dis- missed. Handgun not obtained in manner that infringed s. 8. Connection between execution of warrant and discovery of gun was tenuous. Gun discovered independently of warrant. Any alleged shortcomings related to warrant could not taint seizure of gun found on property where accused had no expectation of privacy. In any event, exclusion of gun would bring administra- tion of justice into disrepute. R. v. Stevens (Apr. 18, 2008, Ont. C.J., Bhabha J.) Order No. 008/121/006 (11 pp.). TRIAL WITHIN REASON- ABLE TIME Section 11(b) of Charter did not require perfection Accused charged with impaired driving and driving with ex- cess alcohol. Accused applied for stay of proceedings based on breach of s. 11(b) of Char- ter. Counsel agreed trial would require four hours. Trial had to be continued seven months later because more time needed. Delay in question was period between first trial date and con- tinuation date. Application dis- missed. Section 11(b) did not require perfection or create lim- itation period. Jurisdiction only had two sitting judges. Defence counsel had refused earlier con- tinuation dates offered by court, due to busy schedule. Accused could not rely on fact that his own counsel had caused delay. Accused suffered no prejudice from delay. R. v. Burton (Apr. 15, 2008, Ont. C.J., Pugsley J., File No. 06-1785) Order No. 008/121/016 (10 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 $12.50* 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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