Law Times

LAW TIMES / JUNE 30 - JULY 7, 2008 from Minister of National Rev- enue. Minister was granted or- ders under s. 231.7 of Income Tax Act (Can.), and s. 289.1 of Excise Tax Act (Can.), against respondents, who were husband and wife. Minister obtained contempt order under Rule 466 of Federal Courts Rules (Can.). Respondents procrastinated, did not take compliance orders seri- ously and admitted contempt on third day of hearing. Little tem- perance warranted given gravity of conduct. Apology was too lit- tle too late. Though no evidence respondents had prior record, mitigating factors not strong. M.N.R. v. Kerby (Apr. 10, 2008, F.C., Gibson J., File No. T-1456-05; T-1457-05) Order No. 008/120/024 (29 pp.). ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Trial judge properly applied s. 34(2) of Real Estate and Business Brokers Act (Ont.) Appellant was ordered to pay respondent commission on sale of municipal property owned by appellant. Trial judge con- cluded parties agreed commis- sion should be paid but did not agree on amount of commission. Trial judge applied s. 34(2) of Real Estate and Business Brokers Act (Ont.). Trial judge found appropriate commission rate in community was 3.75%. Appeal was dismissed. There was ample evidence to support conclusion parties agreed commission was to be paid. There was no error in conclusion that s. 34(2) applied to resolve dispute. J.J. Barnicke Ltd. v. Ottawa (City) (Mar. 13, 2008, Ont. C.A., Win- kler C.J.O., MacPherson and Rouleau JJ.A., File No. C46101) Order No. 008/077/197 (3 pp.). Appeal LEAVE TO APPEAL Leave to appeal Board's interlocutory decision refused Board denied appellants' motion to dismiss respondent's appeal without hearing. Board found res judicata and laches did not apply. Appellants sought leave to appeal. Motion was dismissed. Fact rea- sons went further than was nec- essary did not form basis of ap- peal. Subject matter of proposed appeal was board's decision, not reasons. Board's interlocutory de- cision did not finally determine questions of res judicata, laches or issue estoppel. Sandringham/Wellington Com- munity Management Inc. v. Ch- inguacousy Farm Ltd. (Mar. 12, 2008, Ont. Div. Ct., Corbett J., File No. DC-07-65-ML) Appeal from (2007), 57 O.M.B.R. 1 dis- missed. Order No. 008/077/202 (10 pp.). Bankruptcy And Insolvency PROPOSALS No error in refusal to vary sale approval and vesting order Trustee's motion to examine court-appointed interim receiver was dismissed. Trustee's motion sought to vary sale approval and vesting order approving interim receiver's sale of assets. Concern was selling assets to new company formed by two of former princi- pals. Four years passed since sale was approved and implemented. Trustee in Bankruptcy appealed. Appeal was dismissed. Motions judge did not err in conclud- ing interim receiver provided all information requested and re- quired by trustee. Motions judge did not err in refusing to vary sale approval and vesting order on basis of delay and because trustee failed to establish error or omis- sion in order. Trustee was seeking to appeal order under guise of variation. Impact Tool & Mould Inc. (Trustee of ) v. Impact Tool & Mould Inc. (Interim Receiver of) (Mar. 14, 2008, Ont. C.A., Feldman, Lang and MacFarland JJ.A., File No. C47464) Order No. 008/077/195 (4 pp.). Contempt Of Court GROUNDS Failure to disclose financial infor- mation was deliberate and egregious Husband moved for order find- ing wife in contempt for failing to comply with consent order to produce financial information. Wife provided financial state- ment without supporting materi- al. Contempt motion adjourned twice to allow wife opportunity to produce documents and wife's solicitor ordered to pay costs per- sonally. At third return of mo- tion, wife had still not provided all information requested. Mo- tion granted. Contempt estab- lished beyond reasonable doubt. Failure to disclose was not mere inadvertence but amounted to deliberate, egregious conduct. per month for every month she failed to comply with order. Brar v. Dhinsa (Apr. 4, 2008, Ont.S.C.J., Lemon J., File No. FS-07-060051-00) Order No. 008/099/033 (8 pp.). Employment WRONGFUL DISMISSAL Employee's failure to properly arrange leave of absence did not justify termination Employee brought action against employer for damages for wrong- ful dismissal. Employee, aged 44, had worked for employer munic- ipality for 18 years, beginning as laborer and progressing to heavy equipment operator. Employee asked supervisor for time off due to stress from personal problems. Supervisor agreed it was okay with him. Employer alleged su- pervisor did not have authority to grant time off. Employee be- lieved he had sufficient vacation time but did not communicate how long he would be gone or confirm that he had authoriza- tion for leave. Employer termi- nated employee for failing to show up for work for prolonged period. Action allowed. Employ- ee was inexcusably irresponsible with respect to arranging leave. However, considering circum- stances, including: employee's unblemished record; absence of clear vacation policy; and his- tory of flexibility in workplace, employee's conduct not suffi- cient to justify termination. Ap- propriate notice period was 12 months. Smith v. Ramara (Town) (Apr. 8, 2008, Ont.S.C.J., Eberhard J., File No. 821-06) Order No. 008/100/016 (6 pp.). Family Law CUSTODY Father best equipped to tend to children's needs Application by mother for joint custody of two children of par- ties, aged nine and seven, with equal access. Previous order had established joint custody with primary residence to father and interim access to mother at stated times. Mother had been involved with drugs, alcohol, and had ex- hibited violent conduct. Mother had anger management prob- lem and had displayed anger in front of children. Husband had sound ability to handle issues of children's schooling, health, diet and extracurricular activities. Mother's application for parity of access denied. Joint custody or- dered with primary residence and final decision making authority with respect to children to father. Mother to have access at stated times. Mother to attend counsel- ling for anger management and substance abuse. Father was best equipped to tend to needs of chil- dren as they developed as he had involved himself with children and had natural ease in determin- ing what was right for them. Smith v. Fushty (Mar. 12, 2008, Ont.S.C.J., Harris J., File No. 13369/02) Order No. 008/073/239 (8 pp.). ONTARIO CRIMINAL CASES Charter Of Rights TRIAL WITHIN REASONABLE TIME Stay refused where cause of delay related to unavailability of defence counsel Accused applied for stay of pro- ceedings based on unreasonable delay, contrary to ss. 7 and 11(b) of Charter. Total institutional de- lay 22 months, 14 days. Applica- tion dismissed. Delay exceeded established administrative guide- line. However, direct cause of de- lay beyond guideline was unavail- ability of defence counsel during earlier pretrial period. Accused did not suffer prejudice beyond that suffered by all accused persons in similar circumstances. R. v. Lanthier (Apr. 3, 2008, Ont. S.C.J., Charbonneau J., File No. 05-CR-1179) Order No. 008/098/051 (5 pp.). Evidence ADMISSIBILITY State of mind relevant even in strict liability offences where accused raised certain defences Accused charged with failing as constructor to ensure prescribed measures and procedures car- ried out at project, contrary to s. 23(1)(a) of Occupational Health and Safety Act. Accused argued it was not a constructor as defined by Act. Ministry had previously www.lawtimesnews.com issued order to accused, naming it as constructor and indicating accused had right to appeal. Ac- cused objected to admissibility of questions about whether it had appealed order. Evidence admis- sible. Court did not have jurisdic- tion to deal with collateral attack on validity of order. Whether accused appealed order was rel- evant to issue of whether accused was constructor. Issue went to accused's state of mind. State of mind relevant even in strict li- ability offences where accused raised certain defences. Failure to appeal could raise adverse infer- ence that accused accepted that it was constructor. Probative value outweighed prejudicial effect. Evidence supporting inference appeared strong. Hearing issue would not take undue amount of time and accused had ability to rebut inference. Trier would not be distracted by questioning. No risk of inference of guilt based on bad character. R. v. Reid & Deleye Contractors Ltd. (Feb. 12, 2008, Ont. C.J., Child J.P., File No. 4460 999 06 19444) Order No. 008/098/176 (19 pp.). Sentence ASSAULT Sentence for domestic assault offences varied to four years imprisonment Accused appealed sentence of four and a half years for offences related to domestic assault. Ac- cused broke into victim's home and held knife to victim's throat. Accused had extensive record and on probation for offences against victim at time. Appeal allowed in part. Trial judge did not err in rejecting joint submission for two years plus three years proba- PAGE 19 tion. However, sentence should have been at bottom end of ap- propriate range. Sentence varied to four years. R. v. Hunda (Apr. 4, 2008, Ont. C.A., Doherty, Moldaver and Cronk JJ.A., File No. C47318) Order No. 008/098/065 (2 pp.). Young Persons SENTENCE History indicating pattern of findings of guilt not established Accused 16-year-old convicted of possession of crack cocaine for purpose of trafficking. Ruling on whether accused had history indi- cating pattern of findings of guilt, such that custodial sentence avail- able under s. 39(1)(c) of Youth Criminal Justice Act (Can.). Ac- cused had record for mischief, trafficking in crack cocaine, breach of undertaking, breach of recognizance and possession of marijuana. Section 39(1)(c) not applicable. Step principle, being linked to objective of deterrence, had no application to Act. En- tirety of accused's record relevant and could be considered. History of findings of guilt did not neces- sarily indicate pattern of crime. Court should not overempha- size dates or timing of findings of guilt. Here, accused's convic- tions related to four occurrences in short period and ten-month break between earliest and lat- est offence. There was similarity between breaches. However, traf- ficking in cocaine and possession of marijuana not related. History indicating pattern of findings of guilt not established. R. v. T. (C.S.) (Apr. 7, 2008, Ont. C.J., Campbell J., File No. 07-Y-223) Order No. 008/100/018 (5 pp.). LT 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 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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