The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50754
Law times • OctOber 26, 2009 visit respondent's home either announced or unannounced. Family, Youth and Child Services of Muskoka v. M. (J.) (Sep. 9, 2009, Ont. S.C.J. (Fam. Ct.), Wood J., File No. 217-09) Order No. 009/253/063 (8 pp.). CUSTODY There was stability for child in father's home Parties were married 13 years and had three children. Mother had custody of children. Two older children moved to father's home. Mother was convicted of impaired driving. Youngest child was in ve- hicle with mother. Child was ap- prehended and placed with father. Youngest child was with father for fi ve years. Youngest child had pro- gressive condition causing muscle weakness. Each parent sought per- manent custody of youngest child. It was in child's best interests for father to have custody. Th ere was stability for child in father's home. Child had father, stepmother and their children in father's home. Child's preference was to live with father and stepmother. Mother had nothing in place for child now, but only future plan. Child was asthmatic and mother had cats and dogs in home and there were smokers. Change would involve huge disruption for child. Mother had access. Mio v. Mio (Sep. 3, 2009, Ont. S.C.J., Hockin J., File No. 1898/02) Order No. 009/252/058 (14 pp.). Limitations DISCOVERABILITY Plaintiff was not required to conduct further inquiries Plaintiff claimed to have suff ered personal injuries from motor ve- hicle accident. Claims examiner for driver's insurer indicated driver as owner of motor vehicle. Plain- tiff did not conduct licence plate search which would have revealed proposed defendant as owner. Plaintiff s brought motion for leave to amend statement of claim to add proposed defendant. Proposed defendant argued limitation period expired. Motion was allowed. Case was not one of correcting name of party that was incorrectly named. Admission of ownership in state- ment of defence did not require plaintiff to conduct further in- quiries. Plaintiff could not have discovered identity of true owner until when insurer discovered error in failing to take notice of lease in insurer's possession. Limitation pe- riod had not expired. Th ere was no evidence of prejudice to proposed defendant. Bremer v. Foisy (Aug. 19, 2009, Ont. S.C.J., Master Beaudoin, File No. 04-CV-26977) Order No. 009/253/060 (9 pp.). GENERAL Action was statute-barred pursuant to ss. 4 and 18 of Limitations Act, 2002 (Ont.) Motion by defendant to dismiss plaintiff 's action. In 2003, defen- dant commenced action against plaintiff for breach of contract. Set- tlement was reached. Defendant's law fi rm sued both plaintiff and defendant alleging that they had colluded to avoid paying their fees. Parties were found to be jointly and severally liable. Plaintiff ended up paying entire amount of judg- ment. Plaintiff commenced action against defendant seeking amounts paid. Motion granted. Action was dismissed. Action was statute- barred pursuant to ss. 4 and 18 of Limitations Act, 2002 (Ont.). Plaintiff s knew of action com- menced by law fi rm in November 2004. Limitation period expired on November 2006. Teskey v. Gura (Sep. 4, 2009, Ont. S.C.J., Bellamy J., File No. CV-08- 354267) Order No. 009/254/051 (3 pp.). Professions BARRISTERS AND SOLICITORS Solicitor's hourly rate reasonable in circumstances Solicitor was retained with respect to application brought in relation to guardianship of client's wife and for custody of children. Accounts totalled $41,592. No moneys were paid. Th ere was no retainer held in trust for solicitor. Issues relating to incapacity of wife were of above average complexity. Issues were ex- tremely important for client. Result achieved was excellent. Client rep- resented client had some funds to pay by signing retainer agreement. Solicitor's hourly rate was reason- able in circumstances. Time billed was slightly excessive and was re- duced. Fair and reasonable amount for bill was $36,064. Bill was as- sessed at $36,064 plus interest and costs making total of $40,057. Whaley v. Tandon (July 17, 2009, Ont. S.C.J., Assessment Offi cer Ittleman, File No. 09-CV-377564) Order No. 009/253/052 (30 pp.). ONTARIO CRIMINAL CASES Evidence ADMISSIBILITY Corporation had no standing to re-litigate findings that Hells Angels Motorcycle Club chapters constituted criminal organization Members and associates of Hells Angels Motorcycle Club ("HAMC") convicted of off ences under Crim- inal Code and Controlled Drugs and Substances Act (Can.). Crown applied for forfeiture of property seized from accused's homes and HAMC clubhouses. Property bore trademarked "colours" of HAMC. Trademarks were registered to re- spondent corporation, which had licence agreements with HAMC chapters. Corporation sought re- turn of property. Crown's applica- tion allowed. Crown entitled to rely upon trial judge's fi ndings in criminal proceedings in support of application. Corporation had no standing to re-litigate fi ndings that HAMC chapters in Canada constituted criminal organiza- tion and used material containing trademarks to further organiza- tion's criminal purposes. Collateral attack could result in inconsistent fi ndings. No unfairness to corpo- ration, since statutory regimes pro- vided mechanism for relief from forfeiture. R. v. Hells Angels Motorcycles Corp. (Aug. 25, 2009, Ont. S.C.J., Par- du J.) Order No. 009/239/025 (17 pp.). OPINION EVIDENCE Trial judge erred in declining to admit expert evidence regarding significance of tear-drop tattoo Accused was being tried for fi rst- CASELAW degree murder in gang-related shooting. Crown sought to elicit expert evidence and gang-mem- ber evidence of signifi cance of tear-drop tattoo that accused had inscribed on his face months af- ter murder. Trial judge did not allow evidence. Accused acquit- ted. Crown appealed. Appeal al- lowed. Trial judge erred in hold- ing that, because expert's opinion had not been peer reviewed, his opinion was not based on proven facts and could not be admitted into evidence. Further, in exam- ining methods used by expert to enhance reliability of his opinion, trial judge imposed too high stan- dard of reliability, misapprehended parts of expert's evidence, and con- sidered evidence that was irrelevant to reliability of opinion. R. v. Abbey (Aug. 27, 2009, Ont. C.A., Doherty, MacPherson and Lang JJ.A., File No. C47020) Or- der No. 009/240/015 (80 pp.). Extraordinary Remedies MANDAMUS Remedy of mandamus with certiorari in aid was appropriate when Crown sought to quash justice's decision Application by Crown for order of mandamus with certiorari in aid to quash decision of justice of peace. Accused were charged with three charges pursuant to s. 149(1) and (3) of Workplace Safe- ty and Insurance Act, 1997 (Ont.) ("WSIA"). Justice quashed charges because they were not laid within six months, which she found to be applicable limitation period pursu- ant to s. 76 of Provincial Off ences Act (Ont.). Application allowed. Section 76 did not apply. Charg- es were governed by s. 157.1(2) of WSIA which specifi cally pre- scribed no limitation period for prosecuting off ence under s. 149. Remedy of mandamus with certio- rari in aid was appropriate remedy when Crown sought to quash jus- tice's decision. Refusal or failure of justice to hear prosecution of seri- ous off ences alleged was substantial wrong that entitled applicant to certiorari under s. 141(4) of Pro- vincial Off ences Act (Ont.). Justice failed to properly exercise her juris- diction and did not consider rules of statutory interpretation in her analysis. R. v. Commercial Spring and Tool Co. (Sep. 17, 2009, Ont. S.C.J., Seppi J., File No. 3474/09) Order No. 009/261/038 (15 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Intention to not drive until no longer impaired did not rebut presumption Accused charged with care and control of motor vehicle while impaired and refusing to provide breath sample. Accused was found asleep in car in fetal position, fac- ing driver's side of door, with en- gine running. Accused admitted that he felt his ability to drive was impaired but that he did not in- tend to drive when he got into car. Judge determined he had care and control and convicted him. Ac- cused appealed conviction. Appeal dismissed. Accused did not rebut presumption that he did not have intention of setting vehicle in mo- tion. Intention to not drive until no longer impaired did not rebut presumption. Accused could have made incorrect determination www.lawtimesnews.com and set car in motion at any time. Judge did not err in determination that accused was in actual care or control. R. v. Szymanski (Sep. 1, 2009, Ont. S.C.J., Durno J., File No. 2181/07) Appeal from 76 W.C.B. (2d) 198 dismissed. Order No. 009/246/014 (39 pp.). PROVINCIAL REGULATION Accident constituted adverse driving condition Trial of accused for driving motor vehicle in excess of 14 hours, con- trary to s. 9(2) of O. Reg. 555/06. Accused started work at 2:45 a.m. and should have been fi nished by 4:45 p.m.. He was delayed by me- chanical failure in his truck and by accident, that did not involve his vehicle, and he did not complete work until 6:15 p.m.. Accident delayed him for one half hour. He claimed he did not violate off ence because he was allowed extra two hours when he encountered "ad- verse driving conditions". Accused convicted. Accident constituted adverse driving condition. How- ever, accused was only entitled to increase his driving time by length of adverse driving condition, which was half hour. He could not extend his hours of service by two hours once he encountered adverse driving condition. R. v. Kleinknecht (July 27, 2009, Ont. C.J., Cuthbertson J.P., File No. 4460 999 07 009637) Order No. 009/251/061 (5 pp.). SPEEDING Stunt driving was absolute liability offence Accused charged with stunt driv- ing for driving over 50 km/hr un- der Highway Traffi c Act (Ont.). Statutory interpretation of "stunt PAGE 15 driving" legislation at issue. Con- viction set aside with fi nding of not guilty entered. Although it was termed strict liability off ence it was improperly classifi ed. No defence of due diligence available so it was absolute liability off ence. Possibility of imprisonment for up to six months for absolute li- ability off ence was violation of s. 7 of Canadian Charter of Rights and Freedoms. R. v. Raham (Sep. 4, 2009, Ont. C.J., Griffi n J., File No. 2011- 999-08-0190-99) Order No. 009/253/054 (22 pp.). Preliminary Inquiry COMMITTAL FOR TRIAL Judge failed to properly consider post offence conduct as evidence of premeditation Crown sought review respect- ing committal for trial of accused for second degree murder. Crown sought determination that justice failed to exercise jurisdiction with respect to committal, exceeded jurisdiction by making fi ndings of fact, and failed to consider all evidence. Accused robbed victim's house and in process got into al- tercation with him and killed him. Judge found no evidence of plan- ning or deliberation to support in charge of fi rst degree murder and accused was committed to stand trial on second degree murder. Ap- plication granted. Judge failed to properly consider post off ence con- duct as evidence of premeditation. Properly instructed jury might conclude that victim was restrained prior to murder and fi t within re- quirements for premeditation. R. v. Martin (July 31, 2009, Ont. S.C.J., Kane J., File No. 07- 2579) Order No. 009/216/034 (22 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! 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. LT0208