Law Times

Law timeS • September 26, 2011 provide fi nancial independence to wife. Appeal dismissed. Ap- pellants were unable to dis- charge presumption that they were associated. Only one of them would submit proposal in calls for tenders. Testimonies were contradictory which made witnesses less credible. Couple had consulted tax advisors when setting up companies. Maintenance Eureka Ltee v. Canada (June 20, 2011, T.C.C., Hogan J., File No. 2009-2550(IT)G) Reasons in French. 203 A.C.W.S. (3d) 668 (20 pp.). ONTARIO CIVIL CASES Civil Procedure SUMMARY JUDGMENT Determination of factually disputed issues required findings about credibility Cousins owned common shares in group of closely- held family companies. Eight of eleven cousins decided to monetize value of interests in shopping centres which were two core assets of companies. Cousins entered share redemp- tion transaction with com- panies. Non-selling cousins brought in equity investor First Capital who purchased 50% stake in shopping centre. Eq- uity investor was public com- pany. Selling cousins found out price paid by equity inves- tor refl ected much higher value attributed to shopping centre than that on which share re- demption transactions had been negotiated. Selling cous- ins brought action against non- selling cousins, family compa- nies' lawyers and accountants, and public company. Ogilvy Renault was corporate counsel to Leikin Group of companies. GGFL was accounting fi rm. Motion for summary judg- ment brought by First Capi- tal was allowed. Motions for summary judgment brought by non-selling cousins, Ogilvy Renault defendants and Ac- counting defendants were dis- missed. Evidence disclosed no basis for claim against First Capital. First Capital did not make off er to purchase interest until after shareholders execut- ed letter of intent. First Capital made off er to purchase interest after RBC completed reviews of bids. Th ere was no genu- ine issue for trial in respect of claim against First Capi- tal. Claim against non-selling shareholders and Leikin Group were for damages for breach of fi duciary duty, oppression, breach of confi dence, misuse of confi dential information and unjust enrichment. Deter- mination of factually disputed issues required fi ndings about credibility. Non-selling share- holders and Leikin Group did not show there was no genu- ine issue requiring trial and summary judgment was not granted to them. Ogilvy Re- nault defendants did not show there was no genuine issue for trial. Court wished to hear viva voce evidence from individual before making fi nal fi ndings about individual's credibility. Accounting defendants did not show there was no genuine is- sue for trial. Court needed to hear further argument about nature and scope of GGFL re- tainer. Harris v. Leikin Group Inc. (June 13, 2011, Ont. S.C.J., Brown J., File No. 08-CL- 7482) 203 A.C.W.S. (3d) 500 (131 pp.). Corporations OPPRESSION Judgment debtor and director acted in manner that was oppressive Respondents were directors of three corporate entities. Ap- plicant leased equipment to one of corporations. Corpo- ration defaulted on lease and refused to return equipment. Applicant obtained court or- der requiring equipment to be returned. Equipment was re- turned. Amount remained ow- ing. Judgment was granted to applicant. Director of corpora- tion was held in contempt for failing to answer outstanding undertakings. Requested in- formation was produced. New company was incorporated to carry on business of judgment debtor corporation. Applicant sought remedy for oppression. Application was allowed. Di- rector abandoned judgment debtor corporation and trans- ferred operating business from judgment debtor corporation to new corporation controlled by director for purpose of es- caping obligations to creditors. Judgment debtor and director acted in manner that was op- pressive or unfairly prejudicial to interests of applicant. It was appropriate to grant relief against three companies given entanglement of companies' aff airs. Directors of three cor- porations were jointly and sev- erally liable to pay judgment obtained by applicant against judgment debtor company. Pitney Bowes of Canada Ltd. v. Belmonte (June 15, 2011, Ont. S.C.J., Murray J., File No. 3514/10) 203 A.C.W.S. (3d) 524 (10 pp.). Debtor And Creditor Plaintiff ENFORCEMENT Gratuitous transfer of funds for acquisition of car created resulting trust transferred CASELAW amount of $5,000. Plaintiff owed defendant $2,000 for unpaid services. Defendant should have refunded $8,000 to plaintiff from vehicle sale proceeds and plaintiff had judgment for $8,000. Devries Financial Group Inc. v. Duggan (June 16, 2011, Ont. S.C.J., Leroy J., File No. 09- 44555SR#) 203 A.C.W.S. (3d) 541 (7 pp.). Family Law CUSTODY Father's plan less stressful for child Motion by mother for order that father's access to child, aged nine, be restricted and exercised in Ontario. Father resided in Washington state. Mother and father continued in long-distance relationship for four years. Father had con- tact and spent time with child since birth. Mother always present for access visits. Father had no access in 2008. Access visit in 2009 only arranged with assistance of counsel. Existing arrangement requires splitting of Christmas holi- days which father could not aff ord given cost of airfare at peak time of travel each year. Father believed that splitting holidays did not permit suf- fi cient time for child to spend time with paternal extended family. Order that child shall spend time with father on alternate March breaks and Christmas holidays, every summer for fi ve consecutive weeks and every American Th anksgiving. Father's plan of alternate years less stressful for child and would allow him to relax and enjoy holiday with each parent and his or her ex- tended family members. Duthie v. Junker (May 3, 2011, Ont. C.J., Zisman J., File No. 335/08) 203 A.C.W.S. (3d) 565 (17 pp.). SUPPORT By cashing cheques without conditions, mother acknowledged existence of agreement money to defendant for defendant to purchase car in defendant's name. Parties had personal rela- tionship. Plaintiff was certifi ed fi nancial planner. Defendant was impecunious. Transfer was not properly documented. Plaintiff did not prove advance amounted to loan. Gratuitous transfer of funds for acquisition of car registered to defendant created resulting trust with respect to ownership. Plaintiff revoked trust and gift of use on short notice. Car was worth $15,000. Financial loss to de- fendant arising from arbitrary termination of use imposed by plaintiff was quantifi ed in Parties were common law spouses for 11 years and had two children, aged ten and nine at time of hearing. Moth- er had sole custody while fa- ther had limited access rights. Father claimed that parties had agreement that child support payments would be retroactive to date of application based on letters exchanged between their lawyers. Mother denied exis- tence of agreement and sought retroactivity to date of separa- tion, which was seven months prior to application. However, mother cashed cheques for retroactive payment to date of application without any condi- tions. Judgment in favour of husband. By cashing cheques without acknowledged existence of agreement conditions, on retroactivity. Child support was also reduced because of reduction in father's income. Lacelle v. Miner (Apr. 27, 2011, Ont. S.C.J., Charbonneau J., File No. 2007-554) Reasons in French. 203 A.C.W.S. (3d) 566 (23 pp.). www.lawtimesnews.com mother Starting from $62.50 per month ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Judge erred by implying that it was accused's onus to show device did not work properly Appeal by accused from her conviction for failing to com- ply with demand for roadside breath sample. She narrowly avoided hitting a motorcyclist and she came to a stop against highway median. Police offi cer arrived at scene and smelled alcohol on accused's breath. She demanded that accused provide breath sample into roadside screening device. Accused made 23 attempts to blow into device. Offi cer needed to use two devices be- cause after 11 attempts fi rst device displayed low battery message. Trial judge found that accused's overall conduct clearly demonstrated inten- tion to frustrate taking prop- er sample. Appeal allowed. New trial ordered. Judge did not properly apply burden of proof for he rejected accused's evidence but did not properly assess reliability of remaining evidence which was from po- lice offi cer. He also erred by implying that it was accused's onus to show that device did not work properly. Rather, it was Crown's onus to show PAGE 15 that device worked properly, especially in this case where accused made unsuccessful attempts to provide breath sample. R. v. Pinard (Apr. 7, 2011, Ont. S.C.J., Parfett J., File No. 09-2213) 95 W.C.B. (2d) 351 (7 pp.). Courts JUDGES No rational basis for conclusion that judge's reasons contained prejudgment of witness's credibility Crown applied for judge to recuse himself and for mistrial on basis of reasonable appre- hension of bias during trial of two accused for kidnap- ping and murder. Judge had earlier ruled on two applica- tions wherein defence alleged that Crown had conducted improper interview of witness who had been co-accused. Defence had alleged that dis- closure of photographs and interview itself led to witness changing his testimony from his preliminary evidence. Judge ruled that because of conduct by Crown at prepara- tory interview of witness, trial should continue without jury. Application dismissed. Th ere was no rational basis for con- clusion that judge's reasons contained prejudgment of wit- ness's credibility or any appre- hension of bias against Crown. R. v. Spence (June 9, 2011, Ont. S.C.J., Howden J., File No. 09-225) 95 W.C.B. (2d) 383 (11 pp.). LT When More is Too Much 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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