Law Times

Law Times • OcTOber 4, 2010 response indicating acquies- cence. Conduct of defendant both prior to and following an- nouncement of win contrary to obligations as trustee. Rocchio v. Jellis (Aug. 6, 2010, Ont. S.C.J., Low J., File No. 07-CV-335946PD3) 191 A.C.W.S. (3d) 461 (5 pp.). Debtor And Creditor FRAUDULENT TRANSACTIONS Not established that transfers of matrimonial home and businesses to wife were fraudulent Claim for injunction to pre- vent divorced husband and wife from transferring or otherwise disposing of their matrimo- nial home and business assets. Husband and wife married at time dispute arose. Plaintiff N. and husband started roman- tic aff air which eventually led to husband and wife separat- ing although they continued to reside in matrimonial home until they divorced. Plaintiff s went to premises of husband and wife's business to confront husband about repaying loans they had advanced. Son of hus- band and wife arrived shortly thereafter and assaulted N.. Husband found liable in dam- ages for breach of contract for failure to repay loans. Plaintiff s obtained certifi cate of pending litigation which was registered on title to matrimonial home jointly owned by husband and wife. Claim for injunction dis- missed and order that certifi - cate of pending litigation to be vacated. Claim for fraudulent transfer not established. Trans- fer of matrimonial home and businesses to wife made for an- other very compelling reason. Husband had shamed family and dishonoured his parents by getting involved with N.. Not at all beyond reason for hus- band to feel that he owed family a home and potential livelihood in business. Section 3 of Fraud- ulent Conveyances Act (Ont.), would operate to save transfer even if husband found to have transferred property with intent to defraud plaintiff s. Transfer of land in China to husband pur- suant to divorce agreement was valid consideration for trans- fer of assets in Canada to wife. Wife would not have had no- tice or knowledge of husband's fraudulent intent behind trans- fer of assets in Canada. Evi- dence far from clear wife knew of loans when transfer occurred. Not implausible wife would not have appreciated purpose of transfer in relation to any debts husband might have had given her level of sophistication and language barriers. No evidence wife colluded with husband with respect to transfer. Ni v. Zheng (July 19, 2010, Ont. S.C.J., Allen J., File No. 05-CV-292660PD3) 191 A.C.W.S. (3d) 471 (15 pp.). Professions BARRISTERS AND SOLICITORS Motion for order removing applicant's solicitor on basis of conflict of interest was dismissed Motion by respondent for or- der removing solicitor as solici- tor of record for applicant on basis of confl ict of interest by virtue of certain work done for respondent in 2001. Current proceeding was application by federal government for dec- laration that 1990 and 1992 agreements neither prevented Canada from establishing new crossing on Detroit River nor required that Ambassador Bridge be maintained as pre- mier border crossing. Solicitor retained in 2001 to attempt to preserve respondent's retainer of L. and to encourage law fi rm to cease acting for another po- tential competitor promoting new truck only tunnel cross- ing. Solicitor drafted two letters and spent no more than one hour on matter over space of two weeks. Law fi rm decided it could not act for either client. Motion dismissed. Retainer of solicitor was limited purpose short term retainer. Solicitor not retained to lobby Cana- dian government or to advise on respondent's legal position. Solicitor undoubtedly received information that was at the time confi dential and privi- leged. Affi davit fi led in support of respondent ultimately not helpful because it failed to con- vincingly explain what aspect of information imparted to solici- tor in 2001 was related in any specifi c manner to application to construe agreements signed in 1990's. Fact that great deal of information described gen- erally as confi dential now pub- lic clouded issue and made it necessary that evidence clearly establish confi dences that re- mained suffi ciently relevant so that it was improper to allow solicitor to act. Nothing in na- ture of retainer of solicitor that would have required him to be instructed on anything confi - dential in relation to interpre- tation of agreements. Canada v. Canadian Tran- sit Co. (June 16, 2010, Ont. S.C.J., Master MacLeod, File No. 09-46882) 191 A.C.W.S. (3d) 642 (12 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Police had valid grounds to stop accused because he failed to stop at red light Application by accused to exclude evidence of fi rearm because his rights under ss. 8 and 9 of Canadian Char- ter of Rights and Freedoms were violated. Accused, who was accompanied by woman, was stopped by police after he drove through intersection. Police claimed that when other police cars arrived accused at- tempted to escape by driving forwards and backwards and he hit police cars that were in front of him and behind him. Police then approached car CASELAW with drawn weapons. Woman was removed from car and she immediately told police that accused had gun in car. Vio- lent struggle ensued between accused and several offi cers. Accused was tasered 11 times in under two minutes. Police found fully loaded revolver in front of seat where accused sat. Accused was charged with ob- structing police offi cer, danger- ous driving, weapons off ences and breach of prohibition order. He brought this appli- cation because he claimed he lawfully went through intersec- tion when he had green light and that police did not have reasonable grounds to stop him. Accused claimed he was arbitrarily detained and that request for identifi cation and search of his vehicle violated Charter. Application dismissed. Court did not believe accused's evidence. Offi cers who testi- fi ed were credible. Section 9 was not violated as police had valid grounds to stop him be- cause he failed to stop at red light. Accused was not unlaw- fully detained. Section 8 was not infringed for request for his identifi cation was lawful as was search of his car. Firearm was admissible as evidence. Accused was subsequently convicted of all of off ences for which he was charged. R. v. Phills (Aug. 17, 2010, Ont. S.C.J., Molloy J., File No. 0058/09) 89 W.C.B. (2d) 378 (27 pp.). Search And Seizure APPLICATION TO QUASH WARRANT There was sufficient reliable information upon which justice of peace could rely to grant warrant Application by accused to quash search warrant that was used to search his home. Accused was charged with 11 off ences that included several weapons off ences. Portion of Crown's case consisted of evidence that was obtained from search of home. Th at evidence con- sisted of three semi-automatic handguns, two of which were loaded and black bag that con- tained 700 rounds of ammuni- tion. Accused sought to quash warrant on basis that there was insuffi cient factual basis to sup- port inferences that needed to be drawn to fi nd that authoriz- ing justice properly authorized search of home. Application dismissed. Th ere was no con- duct on part of affi ant police offi cer that compelled court to criticize police for informa- tion in Information to Obtain. Th ere was also no conduct that amounted to abuse of process and that would compel court to quash warrant. Police found signifi cant corroboration for much of information provided by confi dential informant. In- formant's information was also credible and compelling. Th ere was suffi cient reliable infor- mation upon which justice of peace could rely to grant war- rant. Accused failed to satisfy onus that there was breach of his rights under s. 8 of Cana- dian Charter of Rights and www.lawtimesnews.com Freedoms. Search of his home was not unreasonable and it was not carried out pursuant to invalid search warrant. R. v. Beckford (July 20, 2010, Ont. S.C.J., Mossip J., File No. CRIM J(P) 015/10) 89 W.C.B. (2d) 433 (26 pp.). Sentence FORFEITURE ORDERS Applicant not entitled to possession of forfeited property or permission to sell property Application for sale of forfeited property. Applicant was reg- istered owner of Hells Angels Motor Cycle Club clubhouse. Attorney General under Con- trolled Drugs and Substances Act (Can.) had been granted restraint and management for property as "off ence related property". Minister of Public Works and Government Services Canada had exclusive possession of club- house. Order required applicant to keep up mortgage and to pay utilities and insurance on prop- erty. Mortgage had matured and mortgagee wanted it paid out. Joint trial of chapter members scheduled to begin September 2010 for four to six months. Ap- plicant sought either possession of clubhouse or alternatively that it be allowed to sell property. Application dismissed. No juris- diction in court to return posses- sion of property to applicant. No provision in Act enabling prop- erty owner to vary any condition of order, except possibly where it is dwelling-house. No mate- rial change to justify revoking management order. With return PAGE 15 of clubhouse property could afresh become off ence-related property. Nothing in language of ss. 14 and 16 of Act to allow sale and payment into court of proceeds until forfeiture hearing. Several convictions registered which would support forfeiture application. R. v. Old Navy Property Corp. (Aug. 11, 2010, Ont. S.C.J., Hockin J., File No. 10297) 89 W.C.B. (2d) 441 (5 pp.). SUMMARY JUDGMENT There was no genuine issue regarding reasonableness of notice period Motion by plaintiff for sum- mary judgment in action for collection from defendant of unpaid amounts owing for bottles purchased by defen- dant and for unpaid interest and storage charges. Plaintiff supplied bottles to defendant. Defendant acquired debt. Plaintiff informed defendant in December 2008 that it would not be providing anymore bot- tles, effective February 2009, unless defendant paid down some debt. Parties did not have general supply contract or exclusive supply arrange- ment. Motion granted. There was no genuine issue requiring trial regarding reasonableness of notice period provided by plaintiff. There was no issue with respect to issue of whether plaintiff could terminate agree- ment at any time. Zuckerman-Honickman Inc. v. Caribbean Ice Cream Co. (July 19, 2010, Ont. S.C.J., Roberts J., File No. CV-09-375986) 191 A.C.W.S. (3d) 434 (8 pp.). LT When More is Too Much Starting from $62.50 per month 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. 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