Law Times

LAW TIMES / JUNE 2, 2008 appellant to renew writ of seizure that expired three and half years previously which was not relevant. Decision was set aside. There was no error in refusal to grant leave to appellant to issue writ of sei- zure and sale and notices of gar- nishment. Respondent relied to respondent's detriment on appel- lant's failure to assert current posi- tions including request for writ of seizure in timely manner. Toro Aluminum v. Sampogna (Feb. 21, 2008, Ont. C.A., O'Connor A.C.J.O., Rouleau and Watt JJ.A., File No. C47441) Order No. 008/056/129 (3 pp.). Constitutional Law CHARTER OF RIGHTS Motion judge erred in refusing to grant intervener status Appellant newspaper successfully appealed motions judge's decision dismissing its application to inter- vene and granting protective order sealing material used on motion in which plaintiffs obtained Mareva injunction against defendants C.B. and B. A.-B.. Motion judge erred in refusing to grant appellant in- tervener status by failing to give sufficient weight to appellant's constitutionally guaranteed free- dom of the press and to fact the newspaper sought standing to assert position coincident with public's interest that would not otherwise be raised. Hollinger Inc. v. Ravelston Corp. (Mar. 28, 2008, Ont. C.A., Laskin, Rouleau JJ.A. and par- tially dissenting - Juriansz J.A., File No. C46351) Appeal from 153 A.C.W.S. (3d) 319; 83 O.R. (3d) 258; 41 C.P.C. (6th) 344 allowed. Order No. 008/091/039 (26 pp.). Family Law CUSTODY Mother's criminal behaviour reflected on abilities as parent Determination of custody of par- ties' seven year old daughter. Wife had history of drug and alcohol abuse. Parties signed agreement in 2005 which provided that they would have joint custody of daughter with child to have prin- cipal residence with mother. Fa- ther was to have reasonable access. Order granted restricting father's use of family property to sauna outbuilding which was equipped with bed and refrigerator. Father was not permitted to enter home. Sauna was set on fire one evening. — Mother had been with father in sauna just prior to fire. Father es- caped with injuries and sauna was destroyed. Both parties had been drinking heavily. Mother was ar- rested and subsequently entered guilty plea to charge of criminal negligence causing bodily harm pursuant to s. 221 of Criminal Code (Can.). After mother's ar- rest temporary order made which had been in effect for two years that granted interim day to day care of child to father with access to mother. Evidence was that child loved both parents and had posi- tive emotional ties with both of them. Best interests of child served by continuing present custody and access arrangements. Length of time child has lived in stable home environment important consider- ation in determining where child should reside. Child had lived in same home since 2002. Father had agreed to buy mother's inter- est in home and would continue to reside there with child. No evi- dence existing childcare arrange- ments not working. Past conduct of mother, i.e. guilty plea to crimi- nal CASELAW have purchased bulldozer if defect had been patently apparent. Mautner negligence and her degree of inebriation at time fire took place reflected on abilities as par- ent. Award of joint custody not in child's best interests as par- ties were unable to meaningfully communicate with one another. Olson v. Olson (Jan. 31, 2008, Ont.S.C.J., Shaw J., File No. FS-05-0223) Order No. 008/050/029 (33 pp.). SUPPORT Child support arrears were rescined Parties were married five years be- fore separating and further four years before divorce. Parties had two children. Younger child had significant special needs. Mother had custody of children. Father was ordered to pay child support of $506 per month based on annual income of $35,000 plus $144 per month for special expenses. Father was terminated from employment in which father earned $37,000 per year. Father started own renovation business. Father made $23,896 in 2005 and $30,308 in 2006. Father brought motion to reduce child support obligation, terminate ob- ligation to contribute to child care expenses. Income of $37,000 per year was imputed to father. Father was to pay child support of $552 per month. Arrears were rescinded. Mother did not provide docu- mentation for child care expenses. Mother made decision to forego or- der father pay proportionate share of child care expenses incurred in 2006 and 2007. Issue of child care costs from January 1, 2008 was adjourned until further evidence could be presented. Father was to continue to pay $144 per month until further court order. Postma v. Postma (Feb. 19, 2008, Ont.S.C.J., Nolan J., File No. 98-DV-30177) Order No. 008/056/159 (9 pp.). Real Property EASEMENTS No evidence fence prevented applicants from maintaining and repairing dwelling Applicants contended respondents breached terms of applicants' ease- ment over property by construct- ing fence. Easement for benefit of applicants was for purposes of maintenance and repair of dwell- ing. No evidence that applicants would be prevented from main- taining and repairing dwelling as result of fence. Applicants had room to go to rear of property on both sides of their house. Applica- tion dismissed. No evidence that applicants were prevented from maintaining and repairing dwell- ing by respondent's fence. Chandrakumaran v. Singh (Feb. 6, 2008, Ont.S.C.J., Lemon J., File No. CV-06-00003538-00) Order No. 008/043/143 (4 pp.). Sale Of Goods OBLIGATIONS OF SELLER Defendant actively concealed defect in bulldozer Plaintiff brought action for breach of contract for damaged bulldozer purchased from defendant. Defen- dant counterclaimed for income lost while having to attend court proceedings related to claim. Ac- tion allowed. Defendant actively concealed defect in bulldozer that would otherwise have been patent- ly apparent. Plaintiff would not v. Metcalfe (Feb. 7, 2008, Ont.S.C.J., Eberhard J., File No. 06-1009-SR) Order No. 008/043/151 (13 pp.). Wills And Estates DEPENDANTS' SUPPORT Trial judge's order respecting administration of estate was not workable found Trial judge that certain beneficiaries were "dependants" of testatrix and that testatrix had not adequately provided for these "de- pendants" in her will. Trial judge directed estate to administer assets differently from scheme set out in will in order to provide "depen- dant" beneficiaries additional ben- efits at expense of non-dependant beneficiary. Trial judge fell into error in manner in which she or- dered estate to be administered and her remedy was impossible to achieve. Trial judge's scheme ordered replaced with one that was workable. Reid Estate v. Reid (Feb. 21, 2008, Ont. Div. Ct., Cunningham A.C.J.S.C., Ferrier and Cumming JJ., File No. DC-95-00006969- 000; DC-95-00006660-000) De- cision at 160 A.C.W.S. (3d) 964; 34 E.T.R. (3d) 152 was varied. Order No. 008/087/205 (8 pp.). FEDERAL COURT Taxation INCOME TAX Unfair to impose entire interest amount on applicant Applicant applied for judicial re- view of decision of Canada Rev- enue Agency appeals officer which refused to grant relief from interest. Applicant had requested interest relief on her tax liability on basis of departmental delay and finan- cial hardship. Application allowed. Even if applicant was warned by Minister of continuance of interest during delay caused by court pro- ceedings it was unfair to impose en- tire interest amount on applicant. It was only fair that applicant pay one-half of interest accrued during waiting period. Section 220(3.1) of Income Tax Act (Can.), precluded bringing earliest years for which relief was claimed within ten-year limitation period. Telfer v. Canada (Revenue Agency) (Feb. 20, 2008, F.C., Frenette J., File No. T-1185-07) Order No. 008/063/129 (10 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT WITH WEAPON Accused not guilty of assaulting grandchildren Accused's 10-year-old grand- daughter alleged accused struck her in head two or three times with whipped cream can. Accused's 11-year-old grandson alleged that accused struck him once on arm with can. Pictures of injuries showed one healing cut on grand- daughter's head and one scrape on grandson's shoulder blade. Accused www.lawtimesnews.com denied assaults. Accused found not guilty. Cumulative effect of prob- lems with complainants' evidence raised reasonable doubt. Accused's testimony not contradictory, in- consistent or implausible. Nature of granddaughter's injury inconsis- tent with being struck hard more than once. Complainants' testi- mony inconsistent regarding where assault of granddaughter occurred, number of times granddaughter was hit and where on body grand- son was hit. Granddaughter's story about what occurred after assault not plausible. R. v. P. (K.A.) (Feb. 5, 2008, Ont. C.J., Bovard J., File No. 07-10007227-00) Order No. 008/057/017 (15 pp.). Charter Of Rights RIGHT TO COUNSEL Delay obtaining roadside sample due to recent consumption of alcohol is justified Appellant was charged with "over 80" and brought application to ex- clude readings of his breath based upon alleged violation of his right to counsel. Accused blew readings of 176 and 181 mg of alcohol per 100 ml of blood. Appellant alleged significant delay between mak- ing of ASD demand and taking ASD sample. Delay in obtain- ing roadside sample due to recent consumption of alcohol is justified delay and police did not have to advise right to counsel before ob- taining sample. R. v. Bell (Mar. 10, 2008, Ont. S.C.J., Ross J., File No. 129 /07) Order No. 008/071/061 (13 pp.). RIGHT TO FAIR TRIAL Cell tower evidence was expert evidence requiring 30 days notice PAGE 15 Accused were charged with first de- gree murder. They had been in cus- tody since February 2005. Crown produced disclosure on eve of trial including cellular telephone infor- mation allegedly used by accused to provide accuseds' possible loca- tion. Accused asserted their right to full answer and defence was violated. Cell tower evidence was expert evidence and 30 days notice was required pursuant to Criminal Code. Evidence was important as it was only physical evidence accused may have been on scene. Adjourn- ment was granted for defence to be able to review disclosure to earliest available trial date. R. v. Tomlinson (Mar. 3, 2008, Ont. S.C.J., Archibald J.) Order No. 008/066/052 (15 pp.). Disclosure DUTY ON CROWN Crown negligent in failing to preserve police station videotapes Case Image filler 3/31/05 1:46 PM Page 1 Accused charged with impaired driving. Accused applied for stay of proceedings based on lack of disclo- sure in breach of Charter. Accused's counsel requested copy of security camera videotapes from police sta- tion. Crown advised that 60-day retention period had expired and tape erased in accordance with policy. Application granted. Tape of marginal relevance and should have been disclosed. Crown negli- gent in failing to preserve relevant evidence. Policy limited Crown's disclosure obligation in violation of accused's right to fair trial. De- struction of tape part of systemic disregard for Crown's obligation to preserve relevant evidence. R. v. Maghdoori (Mar. 6, 2008, Ont. C.J., Blouin J., File No. 4911-998-07-00490-00) Order No. 008/087/230 (5 pp.). 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