Law Times

Law Times • November 2, 2009 Man. Isle of Man requested assis- tance in locating and apprehend- ing child to enforce order placing child in Isle of Man Depart- ment's custody. Th ere was prima facie case that mother knowingly removed child from Isle of Man, contrary to order prohibiting re- moval of child from jurisdiction without leave. Th ere were reason- able grounds to believe there was risk child was likely to suff er emo- tional harm in care of mother. Child would not be adequately protected by order placing child with mother under supervision of society. Mother wished to re- litigate issues. Child was to be returned to Isle of Man. Nothing prevented mother from returning to Isle of Man. Temporary order was made placing child in care of Isle of Man Department subject to supervision of society. Court had authority to place child out- side jurisdiction. Frontenac Children's Aid Society v. D. (J.) (Sep. 14, 2009, Ont. S.C.J. (Fam. Ct.), Trousdale J., File No. 466/09) Order No. 009/258/047 (5 pp.). Insurance AUTOMOBILE INSURANCE Defendant was "protected defendant" and entitled to benefit of threshold Plaintiff brought action as result of injuries sustained as passen- ger on bus. Plaintiff was paying passenger on bus. During ride plaintiff 's seat broke and plaintiff fell back sustaining injuries. Bus was not involved in collision. Defendant brought motion for order that non-pecuniary dam- ages sustained arrived directly or indirectly from use of auto- mobile. Defendant sought order that defendant was "protected defendant" within meaning of s. 267.5(5) of Insurance Act (Ont.), and entitled to benefi t of threshold and $30,000 de- ductible. Motion was allowed. It would be tortuous reasoning to determine passenger injured on moving bus did not suff er di- rectly or indirectly from use or operation of vehicle. Nelson v. Greater Toronto Tran- sit Authority (Sep. 15, Ont. S.C.J., Mulligan Planning ZONING Continuous use of property for residential and boat docking and storage purposes by predecessors in title was legal non-conforming use Applicant owned land abutting river bank. Substantial portion of bungalow on land came to be submerged in water before prop- erty passed to him. Applicant ap- plied for building permit for pro- posed remediation. Respondent town refused to issue permit on basis that property was in agri- cultural zone under current zon- ing by-law. Applicant brought motion seeking declaration that primary residential or boat dock use of property was not prohib- ited by by-law. While intended use did not conform to by-law applicant argued same was legal non-conforming use as structure and land had been devoted to same at time by-law was passed and continuously since. Motion 2009, J., File No. 51134/07) Order No. 009/260/077 (4 pp.). allowed. Based on evidence judge was satisfi ed on balance of prob- abilities that continuous use of property for residential and boat docking and storage purposes by applicant's predecessors in title was legal non-conforming use. While bungalow was later ren- dered uninhabitable there was evidence of intention on part of applicant and predecessors to use bungalow as residence and prop- erty for docking of boats. Appli- cant also exerted eff orts to reme- diate bungalow. Judge declared primary residential use of land and bungalow, subject to maxi- mum six months occupancy per calendar year, was not prohibited by by-law. Respondents were en- joined not to refuse application for building permit. Feather v. Bradford West Gwillim- bury (Town) (Sep. 17, 2009, Ont. S.C.J., Graham J., File No. 07- 0897) Order No. 009/261/022 (22 pp.). Professions BARRISTERS AND SOLICITORS Appropriate to issue charging order in law firm's favour Law fi rm brought application to fi x fees and disbursements owing by respondent for services ren- dered in relation to two actions. Actions were settled. Law fi rm sought order granting fi rst charge on settlement funds. Respon- dent's allegations of fraud and misconduct were without merit. Th ere was no misconduct estab- lished on part of law fi rm. Decla- ration issued confi rming law fi rm acted as solicitor for respondent for specifi ed period. Law fi rm's accounts were reasonable. Law fi rm was to recover $45,000 with interest. It was appropriate case to issue charging order in law fi rm's favour of entirety of funds resid- ing in trust account. Kacaba & Associates v. Tranter (Sep. 16, 2009, Ont. S.C.J., Moore J., File No. 08-CV-00360967) Or- der No. 009/261/037 (6 pp.). Real Property CO-OWNERSHIP Relief sought by plaintiff under Partition Act (Ont.) was sufficient basis upon which to order divided right of possession Signed Trust Agreement pro- vided that home was benefi cially owned by each of parties to ac- tion as to undivided 50% inter- est, though title was held in name of defendant only. Agreement specifi cally provided that defen- dant would convey 50% inter- est in property to plaintiff "on demand". Each was responsible for 50% of mortgage payments, property taxes and all their pay- ments in connection with lands. Since property was purchased in 1997, defendant had occupied fi rst fl oor and basement while renting out second fl oor. Second fl oor had been vacant for some time. Relief sought by plaintiff under Partition Act (Ont.), was suffi cient basis upon which to order divided right of possession. Defendant could continue to have exclusive possession of main fl oor and basement and plaintiff exclusive possession of second fl oor apartment. His right of pos- session for second fl oor would in- clude ability to rent second fl oor apartment and apply rent to his CASELAW share of ongoing expenses and carrying costs. Berti v. Burns (Sep. 1, 2009, Ont. S.C.J., Aston J., File No. 09-CV-372769) Order 009/245/056 (3 pp.). No. ONTARIO CRIMINAL CASES Charter Of Rights DOUBLE JEOPARDY No breach of s. 11(h) of Charter because each charge was separate and distinct from each other and no legal nexus existed On appeal from convictions and sentences for fi nes and imprison- ment for violations of Ontario Water Resources Act, R.S.O. 1990, c. O.40. Accused charged with permitting discharge of PCB-contaminated sediments into Bay of Quinte arising out of business-related activities and dis- obeying orders issued by provin- cial offi cers, Ministry of Environ- ment and justice of peace. Total fi nes amounted to $659,000 and one accused sentenced to four months incarceration. No breach of s. 8 Charter rights. Accused could have raised Charter issue at trial and did not. No breach of s. 11(h) because each charge was separate and distinct from each other and no legal nexus ex- isted. Charges with respect to his status as Director diff erent than other charges. Fines reduced by $140,000 given corporate struc- ture of objectives of sentencing being met with lower sentence. Jail sentence remained as judge properly considered all mitigating and aggravating circumstance. R. v. Sinclair (Aug. 18, 2009, Ont. C.J., Masse J., File No. 060414; 060476; 060615; 070092; 070093) Appeal from 79 W.C.B. (2d) 267 dismissed. Order No. 009/244/140 (58 pp.). RIGHT TO COUNSEL Accused may have been misinformed of his rights given deficiencies in translation Accused appealed conviction for refusing to comply with breath demand. Accused's native lan- guage was Polish. Accused spoke with English-speaking duty coun- sel. Offi cer requested assistance of Polish-speaking offi cer in case accused did not understand legal issues. Offi cer spoke to accused in broken Polish. Trial judge did not accept accused's evidence as to any lack of understanding. Ac- cused argued trial judge erred in fi nding that his s. 10(b) Charter rights had not been breached. Appeal allowed, acquittal en- tered. "Special circumstances" were present in this case and po- lice were obliged to determine whether accused understood his rights. Trial judge misapprehend- ed evidence. Offi cer's eff orts to ensure that accused was informed of Charter rights were unsuc- cessful. Attempt made by Polish- speaking offi cer was not satisfac- tory translation. Accused may have been misinformed of his rights given defi ciencies in trans- lation. Accused was not informed of rights in meaningful and com- prehensive way. Accused's rights were violated. Offi cer should have recognized that broken Pol- www.lawtimesnews.com ish would not have been suffi cient to inform accused of his rights in meaningful and comprehensible manner. Admission of evidence would have brought administra- tion of justice into disrepute. R. v. Chodzba (Sep. 1, 2009, Ont. S.C.J., Corkery J., File No. SCA (P)2113/07) Order No. 009/254/032 (7 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Crown lost benefit of s. 258(1)(c) presumption Trial of accused for driving with blood alcohol level over legal limit. Accused was stopped for speeding in February 2006. When offi cer stopped him she smelled alcohol on his breath and his eyes were glossy. Ac- cused failed roadside screening test and his breathalyzer readings were 119 and 112. He provided uncorroborated evidence about his alcohol consumption. Based on that evidence opinion of his toxicologist was that accused's blood alcohol level was below legal limit shortly before time he was stopped. Accused acquitted. His trial testimony could reason- ably be true and it constituted evidence to contrary. Its eff ect was to raise reasonable doubt, combined with expert evidence, that accused's blood alcohol level was above legal limit shortly be- fore when he was stopped. Blood alcohol level was lower than legal limit at that time, as required by s. 258(1)(d.1) of Criminal Code, as that section was in Febru- ary 2006. Th erefore, Crown lost benefi t of s. 258(1)(c) presump- tion and failed to prove charge PAGE 15 beyond reasonable doubt. R. v. Tash (Aug. 31, 2009, Ont. C.J., Forsyth J., File No. 05- 8247; 08-590) Order No. 009/261/014 (41 pp.). EDITOR'S CORRECTION: Please note that the summary for MacNeil (Litigation Guardian of) v. Bryan, which appeared under "Ontario Civil Cases - Civil Pro- cedure - Jury Notice" in the Case- Law section of Law Times Issue No. 26, dated Aug. 24/31, 2009, contained an error. Specifi cally, the fourth sentence of the sum- mary incorrectly stated that the "pith and substance" of the plain- tiff 's claim was not for declaratory relief. Th e summary should be corrected as follows: Jury notice struck where case pri- marily involved matters of law Motion by plaintiff s in third party action, arising from motor vehicle accident, to strike jury notice fi led by defendant insurer W.. Th ird party action claimed declaratory relief against W. as to validity of policy and entitlement to defence. Motion allowed, and jury notice struck. Th e "pith and substance" of plaintiff 's claim was for declaratory relief which, pur- suant to s. 108(2) of Courts of Justice Act (Ont.), was not to be determined by jury. Case primar- ily involved matters of law, given facts of knowledge and non-dis- closure conceded by plaintiff s. MacNeil (Litigation Guardian of) v. Bryan (June 4, 2009, Ont. S.C.J., Howden J., File No. 02- B5245) Order No. 009/160/003 (8 pp.). 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