Law Times

Law Times • may 31, 2010 as required by order and chose to sit back and take no action. Father chose for almost fi ve years not to pay appropriate amount of child support and waited until Family Respon- sibility Offi ce commence en- forcement proceedings to com- mence motion to change order. Father's lack of actively pursu- ing either employment or fur- ther training considered blame- worthy behaviour. Children subjected to hardship in past and continued to be subject to hardship due to father's failure to fulfi l responsibilities. Mother did not incur full cost of day- care as anticipated in order and would amount to windfall to mother to not reduce amount owing. Fairest approach would be to re-adjust amount father should have paid based on actu- al expense incurred by mother up to May 1, 2009. Reasonable to impute income to father of $31,200 being income at date of outstanding order. Strileski v. Th ring (Mar. 15, 2010, Ont. C.J., Zisman J., File No. 219/03) 186 A.C.W.S. (3d) 1086 (11 pp.). Road Transport CARRIAGE OF GOODS Plaintiff was liable to compensate defendant for damage caused to defendant's goods in plaintiff's Toronto yard Defendant was importer and wholesaler of furniture. Plaintiff was freight forwarder. Agents of plaintiff arranged for cargo to be shipped by ocean cargo ship. Plaintiff then shipped contain- er by rail to Toronto. Plaintiff delivered container by tractor- trailer to storage yard. Plaintiff claimed payment for freight ser- vices, customs duty and related charges owed by defendant. Defendant argued setoff and claimed plaintiff damaged some of goods handled and failed to deliver others. Legal relationship between parties was governed by Ts & Cs booklet. Defen- dant was fi xed with knowledge of services were CDN$112,945 and US$80,525. Schenker of Canada Ltd. v. Royal King Upholstery Inc. (Mar. 26, 2010, Ont. S.C.J., Stinson J., File No. 07-CV- 329727PD2) 186 A.C.W.S. (3d) 883 (21 pp.). ONTARIO CRIMINAL CASES Appeal Accused PLEA OF GUILTY Plea was unequivocal at time it was made appealed conviction for fraud following guilty plea on second day of trial. Accused argued he did not receive ef- fective assistance of counsel and he had no choice but to plead guilty. Accused argued his counsel failed to adduce evidence voir dire regarding his reasonable expectation of pri- vacy, failed to review disclosure prior to trial and failed to pro- vide proper advice for purposes of guilty plea. Appeal dismissed. Even with evidence that items in car belonged to accused, it was highly unlikely that he would have been able to establish pri- vacy interest. Nothing in record to support fi nding that counsel was not fully prepared when trial started. Even if case could be made out in respect of alle- gations of ineff ective assistance of counsel, there was no mis- carriage of justice. Case against appellant was overwhelming. Accused attested to fact that he was pleading guilty voluntarily and free from coercion. Plea was unequivocal at time it was made. When accused was sen- tenced month later, he raised no issue about his plea and he expressed remorse. R. v. Khaja (Apr. 6, 2010, Ont. C.A., Doherty, Moldaver and Epstein JJ.A., File No. C49785) 87 W.C.B. (2d) 362 (4 pp.). terms and conditions on which plaintiff was prepared to accept defendant's business. Plaintiff was entitled to proceed on basis that each transaction it performed on behalf of defen- dant was subject to Ts and Cs of which defendant had been provided notice. Plaintiff was liable to compensate defendant for damage caused to defen- dant's goods in plaintiff 's To- ronto yard. Defendant's proven damages in relation to specifi ed incident was $24,024. Defen- dant did not tender credible evidence to support lost profi t and overhead claims. Limita- tion of liability clause prevented defendant from recovering extra amounts from plaintiff . $19,664 of amount was impressed with trust in favour of defendant's insurer on account of insurance claim submitted by defendant. Defendant was entitled to credit because of damage to shipment of beds of $25,517. Plaintiff was justifi ed in refusing to release containers to defendant in fall of 2006 until it was paid sum due to it. Sums due from defen- dant to plaintiff on account of Causing Bodily Harm GENERAL Trial judge erred in holding that choking into unconsciousness not bodily harm Accused convicted of sexual as- sault simpliciter and acquitted of sexual assault causing bodily harm. Accused anally penetrat- ing complainant with object after choking her unconscious- ness. Complainant testifying she had given previously discussed choking into unconsciousness to be followed by anal penetration as potential consensual sexual activity. Trial judge holding that complainant could not legally consent in advance to sexual activity expected to occur while unconscious. Appeal from con- viction allowed. Complainant's evidence that she and accused discussed possibility of choking activity did not translate into evidence of non-consent be- yond reasonable doubt. Where person consents in advance to sexual activity expected to occur while unconscious only state of mind ever experienced by per- CASELAW son is of consent and no fur- ther consent need be obtained. Trial judge erred in holding that choking into unconsciousness not bodily harm by limiting inquiry to whether harm was transitory. Bodily harm consists of hurt or injury that is tran- sient or trifl ing. Trial judge also had to consider whether harm was not trifl ing. R. v. A. (J.) (Mar. 26, 2010, Ont. C.A., Simmons, Juriansz and LaForme JJ.A., File No. C49920) Decision at 77 W.C.B. (2d) 274 reversed in part. 87 W.C.B. (2d) 453 (48 pp.). Evidence CONSCIOUSNESS OF GUILT Inference that accused was avoiding arrest did not flow logically or reasonably from facts that Crown sought to adduce Application by Crown to intro- duce after fact conduct evidence to support inference of accused's consciousness of guilt. Accused was charged with attempted murder, aggravated assault, use of fi rearm to commit indict- able off ence and discharging fi rearm with intent to endanger life. Accused allegedly got into verbal dispute with victim. He asked victim to approach him and when he did another in- dividual shot him. Application dismissed. Facts to be adduced by Crown did not reasonably support inference to be drawn, that accused's failure to notify police of his whereabouts was indicative of his consciousness of guilt. Inference that accused was avoiding arrest did not fl ow logically or reasonably from facts that Crown sought to ad- duce. Even if facts did support inferences that Crown wanted to draw, prejudicial eff ect of evidence exceeded its probative value. R. v. M. (C.) (Apr. 12, 2010, Ont. S.C.J., Th orburn J., File No. YO-9/09) 87 W.C.B. (2d) 391 (6 pp.). Mens Rea DRIVING OFFENCES Stunt driving properly interpreted as strict liability offence Accused being convicted of "stunt driving" which legislation defi nes as including driving 50 km per hour over speed limit. Accused accelerating slightly over 50 km per hour while pass- ing truck in oncoming traffi c. Legislation providing for pos- sible incarceration on conviction for "stunt driving". Trial court interpreting as strict liability of- fence and convicting accused. Appeal judge striking down leg- islation holding that off ence was absolute liability off ence punish- able by imprisonment contrary to s. 7 of Charter. Appeal from successful appeal from convic- tion for stunt driving allowed, acquittal set aside and new trial ordered. Stunt driving properly interpreted as strict liability of- fence. Absolute liability off ences punishable by imprisonment are unconstitutional subject to jus- tifi cation under s. 1 of Charter. Legislature presumed to have enacted constitutional legisla- www.lawtimesnews.com Starting from $62.50 per month tion in absence of clear lan- guage to contrary. Presumption of constitutionality meant that off ence should be interpreted as strict liability off ence. Legis- lature did not include explicit language precluding due dili- gence defence. R. v. Raham (Mar. 18, 2010, Ont. C.A., Doherty, Feldman and Blair JJ.A., File No. C51094) Decision at 84 W.C.B. (2d) 812 reversed. 87 W.C.B. (2d) 430 (28 pp.). TAX COURT OF CANADA Taxation Object and purpose of Treaty would be frustrated if Canadian-sourced income of appellant fully taxed under United States Code did not enjoy benefits of Treaty Appeal from assessments made under Income Tax Act (Can.), with respect to appellant's 2005 and 2006 taxation years. Appel- lant a registered United States broker-dealer that provides fi - nancial services in capital markets sector such as foreign exchange trading and interest rate swaps. Appellant had branch in Canada for purpose of serving its United States customers. Appellant's Ca- nadian branch profi ts for 2005 and 2006 reported by it in Cana- dian tax returns. Canada-United States Income Tax Convention ("Treaty") expressly provided that rate of Canadian Part XIV tax for Canadian branches of United PAGE 15 States residents reduced to same 5% rate applicable under treaty to dividends paid by wholly-owned Canadian subsidiary to its United States parent. Appellant claimed reduced rate of Canadian branch tax of 55 under Treaty in respect of 2005 and 2006 income of its Canadian Branch. Canada Reve- nue Agency assessed appellant to deny it benefi t of 5% Treaty rate of branch tax and assessed Part XIV branch tax at statutory rate of 25%. Appeal allowed and as- sessments order to be sent back to Minister for reconsidera- tion and reassessment on basis that Canadian branch profi ts of appellant enjoy favourable reduced Part XIV branch tax rate provided in Treaty. United States Code comprehensively taxes worldwide income of ap- pellant as fully as if it had be earned by any other entity in- cluding United States domes- tic corporation. Problem arose because it was not appellant that was tax on income. Code provides that income of appel- lant fully and comprehensively taxed to its member. Income of appellant should enjoy benefi ts of Treaty. Evidence overwhelm- ing that object and purpose of Treaty would not be achieved and would be frustrated if Canadian-sourced income of appellant that is fully taxed in United States under Code did not enjoy benefi ts of Treaty. TD Securities (USA) LLC v. Canada (Apr. 8, 2010, T.C.C., Boyle J., File No. 2008- 2314(IT)G) 186 A.C.W.S. (3d) 1165 (34 pp.). LT When More is Too Much Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. 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