Law Times

Law times • OctOber 5/12, 2009 completed by parties. Wife's ap- plication to set aside agreement was dismissed. Wife's evidence did not support duress. Wife willingly negotiated terms of agreement. Wife understood what wife was doing and made conscious decision not to ob- tain independent; legal advice. Agreement was valid and bind- ing contract. No spousal support was to be paid to wife. Th ere was no evidence of disparity in incomes between parties. Parties were self-suffi cient throughout marriage and after separation. Agreement fairly divided as- sets and liabilities. Wife's claim for equalization payment was denied. Husband was awarded sole custody of children. Wife did not honour joint custody arrangement. It was in children's best interests to live together with husband. Case was not appropriate for joint custody because parties were unable to communicate eff ectively. Wife was to pay child support and had access. Covriga v. Covriga (Aug. 12, 2009, Ont. S.C.J., Horkins J., File No. 06-FA-14356 FIS) Order No. 009/229/058 (63 pp.). Injunctions INTERLOCUTORY RELIEF Injunction to enjoin defendants from preventing removal of garbage was granted Defendant union was on strike. Strike aff ected garbage collec- tion. Residents illegally dumped garbage near fence. City sought injunction to enjoin defendants from preventing removal of garbage located along fence at city property pursuant to order of Medical Offi cer of Health. Injunction was granted. City attempted to gain access to site through negotiation. Police failed to assist. Enforcement of order was not possible. City showed strong prima facie case. Risk of danger to public was strong example of harm that could not be compensated in damages. Balance of conve- nience favoured city. Toronto (City) v. Toronto Civic Employees Union, Local 416 (July 31, 2009, Ont. S.C.J., Wilton-Siegel J.) Order No. 009/216/021 (7 pp.). Plaintiffs failed to show irreparable harm if kabaddi tournament were to proceed Plaintiff sports club incorpo- rated defendant sports club as wholly owned subsidiary. Plain- tiff club's membership in defen- dant sports federation lapsed for non-payment of membership fee. Defendant sports club re- mained member of federation. Plaintiff club discovered that de- fendant club did not have status of subsidiary. Defendant club planned to host kabaddi tourna- ment under auspices of federa- tion. Plaintiff s sought declara- tory relief that defendant club was wholly owned subsidiary of plaintiff club. Plaintiff s brought motion for interlocutory injunc- tion restraining defendant club from hosting and participating in tournament. Motion dis- missed. Plaintiff s failed to show irreparable harm if tournament were to proceed. Th ey admitted that only few hundred specta- tors were expected to attend and no signifi cant cash receipts were involved. On other hand plain- tiff did not refute defendants' assertions in pleading that latter made extensive planning and or- ganization for tournament and expected to suff er huge fi nancial losses if event were cancelled. Damage to reputation of kabad- di sport in Canada was also fore- seeable in case of failure of event. Balance of convenience favoured defendants. Young Sports and Cultural Club Inc. v. Ontario Federation of Sports and Cultural Organi- zations (July 30, 2009, Ont. S.C.J., Lemon J., File No. CV-09-3260-00) Order No. 009/216/001 (10 pp.). Insurance AUTOMOBILE INSURANCE Insured did not fail to disclose material change in risk Application by insured for dec- laration that automobile policy was valid, was binding and en- forceable on insurer and that in- surer was obligated to indemni- fy plaintiff s for damages assessed against plaintiff s up to limits of policy. Plaintiff added grand- son as occasional driver on her policy for insurance. Grandson's licence was suspended. After li- cence was reinstated, grandson was driver of vehicle involved in serious single-vehicle acci- dent. Passengers experienced catastrophic injuries. Insurer completed investigation and declared policy to be terminated as of date prior to accident. Ap- plication granted. Insured did not fail in her duty to disclose material change in risk. Insured was put on notice that notice male driver was added to policy in high-risk category and that it had duty of due diligence to in- quire from public information history of his driving record. DeKoning v. Vector Insurance Network (Ontario) Ltd. (Aug. 19, 2009, Ont. S.C.J., Howden J., File No. 03-B6135) Order No. 009/236/098 (33 pp.). Labour Relations COLLECTIVE AGREEMENT Court did not have jurisdiction over claim respecting LTD benefits Claims asserted LTD benefi ts plaintiff s were entitled to after age 65 were not to be off set by Canada Pension Plan, Old Age Security or Employer Pen- sion Payments received. In pro- posed class proceeding, plain- tiff s sought to represent other retired workers who received LTD under HOODIP and whose benefi ts were off set at age 65. HOODIP was part of collective agreement applicable to full-time nurses at hospitals employed by putative represen- tative plaintiff and proposed ad- ditional representative plaintiff . Plaintiff sought to add plaintiff . Defendants brought motion to dismiss claim and plaintiff 's motion for want of jurisdic- tion. Defendants' motion was CASELAW allowed. Claim was dismissed. Court did not have jurisdiction. Fact claim was brought by way of class action on did not confer jurisdiction on Superior Court over case that would otherwise fall within subject matter of an- other court or tribunal. It did not matter that proposed class might contain members whose employment relationships were not governed by collective agreement. Dispute had express connection to conditions of employment and involved in- terpretation of benefi ts obtained through collective bargaining process. Matter could not be subject of court action. Campos v. Sun Life Assurance Co. of Canada (Aug. 17, 2009, Ont. S.C.J., Lax J., File No. 07-CV-327008CP) Order No. 009/231/046 (16 pp.). Landlord and Tenant DEFINITIONS Fees for telephone and internet included variable and use-dependent element not caught by "monthly recurring fixed" language of definition Tenant RGN leased space from DCI, from which it operated business providing offi ce facili- ties to clients. RGN billed cli- ents certain fi xed amounts, plus additional amounts for services such as telephone and internet. Lease entitled landlord to fi xed percentage of "workstation rev- enue", being: "aggregate or all monthly recurring fi xed fees re- ceivable by Tenant for utilization of space". Landlord brought ap- plication for determination that it was entitled to percentage of all monthly amounts billed to RGN customers, including for telephone and internet service, etc.. Application denied. Land- lord's interpretation rendered words "for the utilization of space" in defi nition superfl uous. Fees for telephone and inter- net included variable and use- dependent element not caught by "monthly recurring fi xed" language of defi nition. Infor- mation provided by RGN to DCI in negotiating lease identi- fi ed "standard" fees charged by RGN to customers, but did not include telephone or internet fees, etc. 1920/1944 Davisville Centre Inc. v. RGN Services Ltd. (Aug. 25, 2009, Ont. S.C.J., Pardu J., File No. CV-09-373232) Order No. 009/239/027 (3 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Trial judge failed to deal with inconsistencies and improbabilities in complainant's evidence Appeal by the accused from his convictions of assaulting, chok- ing, uttering a threat, confi ning and sexually assaulting the com- plainant. Accused was subject to a probation order not to have contact with the complainant. Th ey began to live together af- www.lawtimesnews.com 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! ter the complainant provided her consent to the probation offi cer. Accused was removed from the apartment after the complainant revoked her con- sent to contact with the ac- cused. He was charged with the off ences after the complainant revealed them to the police who came to remove him from the apartment. Trial judge found the complainant credible and convicted the accused. Appeal allowed. Convictions set aside. New trial ordered. Court was unable to explain how the trial judge resolved the challenges to the complainant's credibility and reliability in order to con- vict the accused. Th ere were numerous inconsistencies and improbabilities in the complain- ant's evidence that the judge did not deal with. Th ere was also no valid explanation for why the accused's evidence was rejected. Furthermore, the judge's reasons did not provide the foundation of factual fi ndings necessary to permit appellate review. R. v. Wigle (Aug. 4, 2009, Ont. C.A., Lang, Juriansz and Watt JJ.A., File No. C48215) Order No. 009/218/027 (17 pp.). Charter Of Rights SEARCH AND SEIZURE Trial judge erred in approach to s. 8 of Charter Appeal by the accused from his conviction for possession of a loaded prohibited fi rearm. Po- lice offi cer stopped the accused for driving through a red light. Offi cer asked the accused if he could search his vehicle and the accused agreed. When he asked PAGE 23 the accused if he could search the trunk the accused asked him if had a warrant. Offi cer produced a consent to search form, which he read to the ac- cused. Form was not completed and signed because the accused opened the trunk. Inside the offi cer saw a locked metal box. Offi cer ordered it opened and discovered a loaded handgun inside. Accused claimed that the evidence should have been ex- cluded because it was an unrea- sonable search and seizure. Mo- tion judge disagreed and found that, having been advised of his right to counsel, the accused freely consented to the search and waived his right to be free from an unreasonable search and seizure. Appeal allowed. Conviction set aside. New trial ordered. Judge's analysis under s. 8 of the Canadian Charter of Rights and Freedoms could not stand. He erred in his approach to this issue. Had he applied the proper considerations he could not have reasonably con- cluded that the accused freely consented to have his trunk searched and thereby waived his s. 8 rights. Judge also made several palpable and overriding factual errors in connection with the accused's awareness of his rights and his rejection of the accused's claim that he felt pressured into consenting to a search of his trunk. R. v. Bergauer-Free (Aug. 10, 2009, Ont. C.A., Moldaver, Goudge and Armstrong JJ.A., File No. C48403) Appeal from 78 W.C.B. (2d) 153 allowed. Order No. 009/224/053 (25 pp.). 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