Law Times

Law Times • may 11/18, 2009 obtain permits or remove the signs. Application dismissed. Applicant has an alternative and cannot point to adverse effect on its business or alleged dam- ages to its reputation as a basis for obtaining injunction. Bal- ance of convenience favoured respondent, as effect of granting injunction sought by applicant would suspend sign bylaws and public interest did not favour granting requested injunction. Strategic Media Outdoor Inc. v. Toronto (City) (Jan. 29, 2009, Ont. S.C.J., Hoy J., File No. 08-CV-353053PD3) Order No. 009/036/035 (8 pp.). Professions BARRISTERS AND SOLICITORS No evidence that quality of service rendered by lawyer was substandard Applicant was pedestrian and was struck by motor vehicle. Ap- plicant had retained four counsel prior to hiring respondent. Re- spondent continued tort claim and commenced claim for no fault benefits. Respondent sued law firms on behalf of applicant arising from negligence in ad- vancing applicant's claim arising from motor vehicle accident. Applicant received accounts in 2003, 2005 and 2008. Appli- cant believed respondent over- charged applicant. Applicant sought to have all of accounts taxed or assessed. Applicant made bald assertion applicant was overcharged. There was no overwhelming evidence to iden- tify deficiencies or duplication in services rendered. Nothing in material suggested quality of service rendered by respondent was substandard. There were no special circumstances warrant- ing assessment of accounts from 2003 and 2005. Assessment of 2008 accounts was ordered. Harrison v. Wilson (Feb. 20, 2009, Ont. S.C.J., Kelly J., File No. CV-08-00360663) Order No. 009/056/017 (5 pp.). PHYSICIANS AND SURGEONS Patient would have undertaken surgery even if properly advised Doctor performed surgery on patient. Plaintiffs claimed doctor was negligent. Trial judge found surgery was medically necessary and doctor did not conduct sur- gery in negligent manner. Trial judge found doctor was negli- gent in care of patient because doctor did not obtain patient's informed consent to surgery. Trial judge found reasonable person in patient's circum- stances would have decided to have surgery. Trial judge found plaintiffs did not show doctor's negligence caused patient's in- juries. Action and appeal were both dismissed. It was open to trial judge to find patient would have undertaken surgery even if properly advised. Breach of duty to full and properly advise patient did not cause injuries. Hill v. Victoria Hospital Corp. (Jan. 27, 2009, Ont. C.A., O'Connor A.C.J.O., Cronk and Gillese JJ.A., File No. C47582) Order No. 009/029/005 (14 pp.). Real Property EASEMENTS In public interest for road to be closed Applicants used respondents' driveway and parking lot area to gain access to applicants' prop- erty since 1982. In 2001 re- spondents requested applicants to cease use. Applicants sought declaration that roadway cross- ing respondents' property was access road. Applicants sought order preventing respondents from erecting barrier across road- way. Application was dismissed. Cross-application was allowed. Applicants did not have legal right to use road. On payment of annual fee applicants could drive across respondents' prop- erty and park within few feet of where they currently parked to gain access to property. It was in public interest for road to be closed. Public interest was better served where competing claims were reconciled through com- mon application process. Margettie v. Snell (Jan. 9, 2009, Ont. S.C.J., O'Neill J., File No. CV-2007-161) Order No. 009/054/017 (10 pp.). Securities Regulation PROCEDURE Interpretation of s. 138.8(2) of Securities Act (Ont.) was novel issue of general importance Motion for leave to appeal or- der dismissing secondary mar- ket leave motion pursuant to s. 138.8 of Securities Act (Ont.). Court had ruled that s. 138.8(2) did not require each defendant to file responding affidavit to motion for leave to commence action under Part XXIII.1 of act. Reliance by the appellant's on rule 39.03 of Rules of Civil Procedure (Ont.), also disal- lowed as abuse of process. Mo- tion allowed in part. No reason to doubt correctness of order with respect to rule 39.03. Leave granted to appeal court's con- clusion regarding s. 138.8(2) of Act. Two prior decisions of same level of court, though not direct- ly conflicting, contained strong contrary remarks regarding ap- parently mandatory language of the subsection. Original deci- sion was first interpretation of new provision on novel issue of general importance open to se- rious very debate. Appellate at- tention appropriate. Ainslie v. CV Technologies Inc. (Feb. 11, 2009, Ont. S.C.J., Bellamy J., File No. 26/09) Or- der No. 009/056/080 (4 pp.). Torts NEGLIGENCE Professional Engineers Act (Ont.) does not create private law duty of care Appeal of decision dismissing breach of contract and negli- gence action against profession- al engineers. Plaintiff alleged engineers were responsible for leak and mould problems in her condominium due to negligent design and site inspections. Ap- peal dismissed. Engineers had neither contractual relation- ship with plaintiff nor role in construction CASELAW or PAGE 19 renovations. Appellant's pleadings and ex- perts did not support conten- tion of negligence by engineers. Engineers had not contracted to provide quality control inspec- tions. Professional Engineers Act (Ont.), does not create pri- vate law duty of care owed by engineers to members of the public. Trudell v. Sandpoint Develop- ments Inc. (Feb. 24, 2009, Ont. C.A., Borins, Cronk and La- Forme JJ.A., File No. C49321) Order No. 009/056/071 (4 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Police policy of detaining of all individuals charged with domestic violence was contrary to s. 9 of Charter but stay of proceedings not warranted in circumstances Accused appealed from refusal to grant stay of proceedings. Ac- cused charged with assaulting wife and son. Police detained accused pursuant to unofficial policy requiring detention of all individuals charged with do- mestic violence. Accused trans- ferred to bail court one-half to one hour beyond time limit in s. 503(1)(a) of Criminal Code. Trial justice found that breaches of ss. 498(1.1) and 503(1)(a) of Code and police detention pol- icy violated s. 9 of Charter. Jus- tice granted accused enhanced credit for pretrial custody. Ap- peal dismissed. Justice did not err in refusing to grant stay of proceedings. Police would have had grounds to detain accused under s. 498(1.1) in any event. Violation of s. 503(1)(a) not deliberate or in bad faith and delay not egregious. While po- lice practice was "systemic ab- dication" of legal responsibility, justice did not err in concluding that stay not warranted. Rem- edy granted and denunciation of policy adequately addressed seriousness of breach, prejudice to accused and public interest. R. v. Rashid (Mar. 6, 2009, Ont. S.C.J., Sosna J., File No. 11374/07) Appeal from 74 W.C.B. (2d) 700 dismissed. Order No. 009/069/015 (11 pp.). Courts ABUSE OF PROCESS Justice of peace did not have jurisdiction to stay proceedings on basis of abuse of process Crown applied for an order of mandamus to require the pro- vincial offences court to proceed with the trial of four offences charged under a bylaw prohib- iting dog owners from letting their dogs run at large. Applica- tion amounted to a judicial re- view of the decision of a justice of the peace to stay the trial on the basis of her finding of abuse of process. Bylaw officer at- tended accused's dwelling place to give him four provincial of- fences ticket and informed him the purpose of his visit. Bylaw officer walked to his vehicle to fill out the tickets and accused retreated to his dwelling and re- fused to answer the door. Bylaw officer left the second copy of the ticket and the offence notice in accused's mailbox. Certificate entered into evidence included a declaration by the bylaw officer that accused was served person- ally with the offence notice. Ap- plication allowed, stay orders quashed and trials to proceed after fresh notices of trial deliv- ered to accused. Failure to serve personally is an irregularity only. Accused appeared at court after filing the offence notices and therefore attorned to the court's jurisdiction. Justice of the peace was in error in finding there could only be personal service if the ticket was left in the pos- session of accused. Justice of the peace did not have the jurisdic- tion to stay the proceedings on the basis of abuse of process. Even if justice of the peace had the jurisdiction to stay proceed- ings on the basis of an abuse of process, where the accused appeared and asked for a trial, notwithstanding his complaint about service, the case for a stay could not be made out. London (City) v. Erdesz (Mar. 11, 2009, Ont. S.C.J., Hockin J., File No. 81434093; 81434094; 81434096; 81434097) Order No. 009/076/025 (5 pp.). Mental Illness DEFENCE No basis upon which trial judge could be satisfied that accused incapable of knowing conduct was wrong when he committed offences Case Image filler 3/31/05 1:46 PM Page 1 Accused pleaded guilty to and had been convicted of criminal harassment and uttering threats. Accused's mental condition was a potential issue during the trial and sentencing proceedings in- cluding a post sentence hearing after accused breached his con- ditional sentence by trying to contact complainant. Accused appealed his conviction on the basis he was not criminally re- sponsible due to a mental disor- der when he committed the of- fences and sought to enter the evidence of four psychiatrists as fresh evidence on appeal. Two of the psychiatrists concluded accused was not criminally re- sponsible while the other two concluded the opposite. Ap- peal dismissed. New psychiat- ric reports, taken together with the rest of the evidence, did not provide a basis upon which a trial judge could be satisfied on the balance or probabilities that the accused was incapable of knowing his conduct was wrong when he committed the offenc- es. Accused had written a letter to complainant's mother replete with statements indicating he was fully aware his conduct was morally wrong. One of the re- ports in accused's favour was written without the benefit of the psychiatrist having read the letter to complainant's mother. R. v. Ross (Feb. 17, 2009, Ont. C.A., Doherty, MacPherson and Lang JJ.A., File No. C43638) Order No. 009/049/032 (9 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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