The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50609
Law Times • November 9, 2009 344970) Order No. 009/271/034 (5 pp.). Assessment was unnecessary Motion by father for appointment of a professional to assess and re- port to the court on the needs of the children and ability of the parties to satisfy those needs. Principal issue was application by mother to move to another province with the parties' two sons. Couples separated in 2007 and had entered in 2009, but sought orders from court rather than com- ply with their agreement as to dis- pute resolution mechanisms. Mother was unemployed but had found em- ployment in other province. Father earned approximately $59,000 per year. Minimum retainer of proposed assessor was $10,000 and assessment would take approximate three to four months. Motion dismissed. Ample amount of evidence upon which a judge could determine the appropri- ateness of the proposed move; assess- ment unnecessary. Parties could not aff ord assessment. Butler v. Percy (July 28, 2009, Ont. S.C.J., Lemon J., File No. FS-09- 2720-00) Order No. 009/211/081 (5 pp.). 25-year-old disabled child remained "child of the marriage" Preliminary issue of court's jurisdic- tion to grant custody and access with respect to an adult child. Couple had two children who had been living with their father and neither had seen their mother for around two years. Youngest child, aged 23, no longer a "child of the marriage". Eldest child, aged 25, was mentally disabled. Mother sought custody of the eldest child with appropriate ac- cess terms to the father. Court has ju- risdiction and eldest child remained "child of the marriage". Divorce Act (Can.) applied to a broad spectrum of circumstances that included adult children who have no capacity to vocalize their preferences, make deci- sions, or understand the issues. Perino v. Perino (Aug. 6, 2009, Ont. S.C.J., Corbett J., File No. FS-06-057465-00) Order 009/223/010 (5 pp.). No. SUPPORT Just to permit severance of support issue Applicant sought custody of par- ties' child. Applicant was subject to deportation order. Applicant sought permission to move immediately with child to diff erent country. Re- spondent sought custody and order child not be removed from province. Neither party sought support. Minis- ter held off deporting applicant until case was completed on basis trial was to be expedited. Applicant brought motion for leave to amend applica- tion to include claim for child sup- port. Applicant sought to have issue heard at trial scheduled for following week. Motion was allowed. Respon- dent's concerns could be addressed by proceeding with trial of custody, access, mobility and non-removal issues as scheduled and giving re- spondent option of severing support issues so that it could be dealt with at later time. It was just to permit sever- ance of support issue. Canabate v. Ayala (Aug. 31, 2009, Ont. C.J., Sherr J., File No. D48110/09) Order No. 009/267/039 (6 pp.). Injunctions INTERLOCUTORY RELIEF Loss of opportunity was compensable, not irreparable, injury Buttcon won RFP to own and op- erated power co-generation facility to power expansion of Casino. D/B agreement was executed. Ownership and operating agreements were not completed. Buttcon continued as de facto interim operator under letter of intent. Letter of intent expired. OLG made arrangements with another contractor to operate facility. But- tcon claimed OLG failed to negoti- ate in good faith. Motion for interim relief was dismissed. Buttcon was to vacate premises. It was lost opportu- nity case. Court was not persuaded that damages would not be adequate and appropriate remedy. Breach complained of was alleged breach of e-mail agreement to negotiate in good faith. Letter of intent ended under own terms. Loss of chance to make money and enhance business reputation was compensable, not ir- reparable, injury. Buttcon Energy Inc. v. Ontario Lot- tery & Gaming Corp. (Sep. 11, 2009, Ont. S.C.J., Belobaba J., File No. CV-09-385931) Order No. 009/257/011 (6 pp.). Judgments And Orders SETTING ASIDE Preservation order was not set aside Preservation order froze assets until hearing of forfeiture application. C. did not appear on motion. Eight months later C. brought motion to set aside preservation order. C. claimed C. did not appear because of accident or mistake and claimed C. moved to set aside order as soon as C. was fi nancially able. C. claimed order was based on inadmissible double hearsay evidence. C. claimed order was disproportionate. Motion was dismissed. Preservation order was not set aside. C. did not move imme- diately after order came to C.'s atten- tion. Delay was substantial. Costs of moving to set aside order would not have been particularly substantial or serious impediment to bringing mo- tion. No evidence of prejudice was adduced. C. took steps to comply with part of order C. now attacked. Conduct of C. and counsel showed acceptance of order. Ontario (Attorney General) v. 15 Johnswood Cresent (Sep. 24, 2009, Ont. S.C.J., Strathy J., File No. 08-CV-359472-0000) Order No. 009/271/039 (11 pp.). Professions BARRISTERS AND SOLICITORS Former Minister of Health was properly disqualified from representing plaintiffs on certification motion Plaintiff s claimed damages from defendants because of alleged neg- ligence in manufacture and sale of drug in Canada. It was intended that R. would represent plaintiff s in certi- fi cation motion. R. was Federal Min- ister of Health when defendant ob- tained approval of drug. Th ere were confi dentiality screens in place to ensure Minister had no involvement in process for regulatory approval of pharmaceutical products. R. was ordered disqualifi ed from participa- tion or involvement in proceeding. Appeal was dismissed. Decision was reasonable. Motions judge made no error in legal principles applied. In light of wording of rule 6.05(5) of Rules of Professional Conduct (Ont.), and policy underlying it, R. was not to act for plaintiff s in proceeding. Tiboni v. Merck Frosst Canada Ltd. (Sep. 8, 2009, Ont. S.C.J. (Div. Ct.), Carnwath, Perkins and Swin- ton JJ., File No. 596/08) Order No. 009/254/050 (7 pp.). Torts NEGLIGENCE Waiver not broad or clear enough to CASELAW exonerate defendant from own negligence Plaintiff attended defendant's intro- ductory motorcycle riding course. Plaintiff was seriously injured during riding exercise while participating in course. Plaintiff signed waiver in fa- vour of defendants before commenc- ing course. Defendant wrote waiver. Jury found defendant 80% at fault and plaintiff 20% at fault. Defen- dant's motion to have waiver found valid was dismissed. Defendant did not prove waiver was broad enough or clear enough in language to ex- onerate defendant from own negli- gence. Th ere was no evidence plain- tiff was advised plaintiff would have to sign waiver when plaintiff regis- tered and paid for course. Waiver was presented when due consideration of its implications were less than ideal. Explanation of waiver was limited. Gallant v. Fanshawe College of Ap- plied Arts and Technology (Sep. 24, 2009, Ont. S.C.J., Arrell J., File No. 01-3170) Order No. 009/271/033 (13 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Conviction for impaired driving set aside Accused appealed conviction for impaired driving. He had also been charged with driving off ences "over 80" and failure to comply with un- dertaking. Crown withdrew "over 80" and failure to comply charges. Accused sought to have remaining conviction quashed and acquittal entered or new trial ordered. Appeal allowed. Conviction set aside and new trial ordered. Judge did not make fi nding as to time of driving, did not make fi nding as to impair- ment during timeframe when ac- cused may have driven, and there seemed to be a reversal of onus on issue of bolus drinking. R. v. Gemma (Sep. 23, 2009, Ont. S.C.J., Gunsolus J., File No. 1307/07) Order No. 009/271/032 (7 pp.). SENTENCE APPEAL Sentence imposed was manifestly unfit Appeal by the accused from sentence imposed after he pleaded guilty to two counts of threatening death and one count each of breach of proba- tion and breach of recognizance. Off ences resulted from a dysfunc- tional domestic relationship which previously led to convictions for as- sault and harassment. Accused was sentenced to four years in custody. Appeal allowed. Off ences were seri- ous but they arose out of an unusual situation. Accused recognized his problem with his former domestic partner and attempted to extricate himself from contact with her by moving away several times. She fol- lowed him and this led to further strife. Sentence imposed was mani- festly unfi t. Sentence was reduced to the time served of 35 months. R. v. Leppard (Sep. 17, 2009, Ont. C.A., Sharpe, Gillese and LaForme JJ.A., File No. C49419) Order No. 009/266/109 (2 pp.). CHARTER OF RIGHTS ARBITRARY DETENTION OR IMPRISONMENT Detention of accused was arbitrary Accused applied to exclude items seized due his contention that search www.lawtimesnews.com 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208 was conducted in violation of Ca- nadian Charter of Rights and Free- doms. Offi cers observed two men engaged in what looked like drug transaction. Police found accused in coff ee shop where they found him sweating profusely and nervous. Of- fi cers then arrested him for investiga- tion of drug traffi cking. Police found drugs and other items during search. Accused was unknown to police but was in area known for drug transac- tions. Th ere was no objective belief that accused had been traffi cking drugs to justify detention. Deten- tion was arbitrary. Search of accused and his person was unreasonable. Evidence excluded. Charter breaches serious enough to warrant exclusion. Off ence not high-level drug crime. R. v. Osolky (Sep. 14, 2009, Ont. C.J., Shamai J.) Order No. 009/272/001 (20 pp.). Evidence CREDIBILITY Trial judge misapprehended evidence in concluding that accused lied to court Accused's truck crossed centre line of major road and collided with van, killing driver and injuring passenger. Accused fl ed scene, went home and reported truck stolen. Accused pleaded guilty to charges of leaving scene of the accident and public mischief for falsely report- ing his vehicle stolen. Following trial accused was convicted of im- paired driving causing death and impaired driving causing bodily harm. Accused appealed. Appeal allowed. Trial judge misappre- hended evidence in concluding that accused lied to court. It was not possible to disentangle trial judge's erroneous reasons from re- mainder of his analysis of accused's credibility and to conclude that he would necessarily have reached the PAGE 15 same conclusion. Trial judge also erred in drawing adverse inferences against accused for failing to call evidence to confi rm various aspects of his testimony. However, evi- dence would not likely have added anything or would have confi rmed relatively minor aspect of accused's narrative, accounting for only lim- ited periods of accused's time. R. v. Lapensee (Sep. 11, 2009, Ont. C.A., O'Connor A.C.J.O., Sharpe and Rouleau JJ.A., File No. C48491) Order No. 009/258/039 (19 pp.). Trial PLEAS Guilty pleas were not struck Appeal by the accused from her con- viction for one count of theft under $5,000. Accused pleaded guilty to two counts of theft under $5,000. She appealed against one of the con- victions and sought to withdraw her guilty plea on the basis that the facts did not support a conviction. Her husband, who was the co-accused, appealed against both convictions and sought to withdraw his guilty pleas to both off ences on the same basis. Appeal dismissed. Husband's appeal was also dismissed. Both accused were remanded overnight from bail court to the guilty plea court. Both accused expressed remorse to the judge during sen- tencing. Th ey were represented by experienced duty counsel. Facts as presented by the Crown, combined with the unequivocal guilty pleas, would not have required the judge who heard the pleas, to make fur- ther inquiry. Pleas were therefore not struck. R. v. Ouansa (Sep. 29, 2009, Ont. S.C.J., Lemon J., File No. SCA (P) 2516/08) EDITORS' NOTE: 84 W.C.B. (2d) 930 based on rea- sons in this decision. Order No. 009/273/005 (9 pp.). LT Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). No more photocopying required to get copies of decisions exactly as they appear in a law report! Only in BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Disburse your costs! BestCase allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services!