Law Times

Law timeS • September 5, 2011 applicant's spouse and child as applicants. Patel v. Canada (Minister of Citizenship and Immigration) (May 18, 2011, F.C., O'Keefe J., File No. IMM-1381-10) 202 A.C.W.S. (3d) 562 (12 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY Compelling party's lawyer to testify was extraordinary remedy and defendants had not proved it necessary Motion by plaintiff s' counsel to quash summons to witness. Plaintiff s obtained Mareva in- junction without notice. Defen- dants opposed plaintiff s' request for extension of injunction and specifi c defendants served sum- mons on plaintiff s' counsel. Specifi c defendants also served second statement of defence that made allegations against coun- sel. Counsel refused to attend for examination. Underlying action was based on plaintiff s' claim they were victims of fraudulent loan scheme perpetuated by defendants. Specifi c defendants wanted to examine counsel on disclosure made in obtaining injunction. Motion allowed. Ex- amination of plaintiff s' counsel was not appropriate. Issue could be addressed through affi davits, information was available from other sources and defendants' request for disclosure was vague and unintelligible. Compelling a party's lawyer to testify or attend was an extraordinary remedy and defendants had not proved it was necessary. Maesbury Homes, Inc. v. 1539006 Ontario Inc. (May 6, 2011, Ont. S.C.J., Grace J., File No. CV-11-421871) 202 A.C.W.S. (3d) 464 (8 pp.). Family Law COSTS No conduct warranting more than partial indemnity costs Motion by father for full indem- nity costs on motions. Mother brought motion for exclusive possession, child and spousal support and s. 7 expenses. Fa- ther cross-motioned for speci- fi ed holiday sharing. Father was substantially successful on most matters. Both parties made of- fers to settle, but father's off er was largely in accordance with order made. Motion allowed in part. Th ere was no conduct warranting more than partial indemnity costs. Mother would have funds to pay costs ordered after equalization payment was made. Father's off er to settle warranted full indemnity costs after September 2010 and par- tial indemnity before. Father awarded total of $13,238 costs, including HST. Costs payable would be deducted disbursements from equalization payment owing from father to mother. Costs award would bear post-judgment interest un- til satisfi ed. Burke v. Burke (Apr. 21, 2011, Ont. S.C.J., McDermot J., File and No. FC-09-03406700) 202 A.C.W.S. (3d) 522 (6 pp.). Judgments And Orders SETTING ASIDE Passage of time since order made was too long to permit action to be revived Motion by plaintiff for order under Rule 37.14(1) of Rules of Civil Procedure (Ont.), to set aside order dismissing ac- tion as abandoned. Plaintiff commenced action for judg- ment under several promissory notes. Defendant delivered statement of defence stating that money advanced to him was repaid. No further steps were taken in action. Motion dismissed. Plaintiff had no ad- equate explanation for delay. Plaintiff showed no diligence in prosecution of action. Pas- sage of time since order was made was too long to permit action to be revived. Roth v. Bourolias (May 20, 2011, Ont. S.C.J., Strathy J., File No. 00-CV-199201) 202 A.C.W.S. (3d) 578 (4 pp.). Landlord And Tenant POSSESSION Landlord not required to grant tenant any indulgence Motion by tenant for order en- forcing settlement. Landlord and tenant entered tenancy January 2010 and tenant soon fell into $37,000 arrears. Land- lord commenced proceedings and parties began negotiating. Landlord was granted posses- sion and leave to issue writ of possession. In August 2010, parties agreed that landlord would not enforce order if ten- ant paid arrears and costs and kept rent up to date. Further default occurred in April 2011 and writ was enforced. Tenant had important event coming up April 8th, so advised landlord he could pay $75,000 within a day if landlord would grant him possession. Landlord responded with number of conditions in- cluding $75,000 "now". Land- lord's counsel then e-mailed tenant's counsel with terms and tenant's counsel agreed. Parties rushed to complete agreement but tenant was unsuccessful in securing funds from fi nancier. Tenant advised landlord the fi - nancier was not acting in good faith and requested an exten- sion. Landlord advised ten- ant's counsel that it had asked its lawyers to stop working on matter and would discuss agreement once tenant actu- ally had funds. Tenant e-mailed landlord April 19th to advise it had funds in hand. Motion dis- missed. Order granting writ of possession concluded proceed- ings. Parties went on to discuss whether possession would be subsequently restored to tenant. E-mail between parties' lawyers merely restated agreement to pay $75,000 "now". Tenant did not have the funds at that time, so agreement was never reached and landlord was not required to grant tenant any indulgence. Tenant to pay $4,000 costs. Deuce Holdings Ltd. v. Abode Lounge Inc. (May 11, 2011, CASELAW Ont. S.C.J., Grace J., File No. CV-10-409697) 202 A.C.W.S. (3d) 475 (9 pp.). ONTARIO CRIMINAL CASES Arson BUILDING OR STRUCTURE Accused's neglect caused fire and damage to property Accused charged with causing a fi re in a dwelling house and damaging property. Accused submitted that potential cause of fi re was failure of electri- cal cord and therefore off ence could not be made out beyond a reasonable doubt. Accused found guilty. Even if fi re start- ed from electrical cord failure accused still set up dangerous and unlawful appliances in his home. Accused's neglect caused the fi re and damage to property. R. v. Cassidy (Mar. 11, 2011, Ont. C.J., Maund J., File No. 09-1094) 94 W.C.B. (2d) 812 (15 pp.). Charter Of Rights SEARCH AND SEIZURE Search was not conducted for officer safety and breach was seri- ous Accused was charged with pos- session of cocaine for purpose of traffi cking. Crack cocaine was found on accused's underwear. Accused asserted he was illegally searched. Offi cer had hunch ac- cused had drugs and search was not conducted for offi cer safety. Breach was serious and search would have greater impact on accused's dignity. Evidence of cocaine was excluded at trial. R. v. Wilson (May 19, 2011, Ont. S.C.J., Spies J.) 94 W.C.B. (2d) 825 (12 pp.). Extradition And Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Prima facie case had been made that accused was one of individuals involved in attack that killed four people France sought extradition of fu- gitive to face trial on four counts of murder, multiple counts of attempted murder and mul- tiple counts involving destruc- tion of property all arising out of terrorist bombing on Paris street in which four people were killed, 40 injured and substan- tial damage caused to number of buildings in the area. Targets were members of nearby syna- gogue who were celebrating fi - nal day of Jewish festival known as Simchas Torah. Application for committal granted. Al- though there were inaccuracies in Record of the Case, none of those inaccuracies was blatant manipulation or failure of due diligence such to be abuse of process and in each instance dealt with peripheral matters that would not bar committal. Th ere is no responsibility upon www.lawtimesnews.com Starting from $62.50 per month requesting state to provide full disclosure of all of its evidence. Very strong criticism, coupled with competing inferences from other experts, does not render another expert's opinion mani- festly unreliable in context of extradition. Court found state of France's case against accused was weak but that prima facie case had been made that he, un- der assumed name, was one of individuals involved in attack. France (Republic) v. Diab (June 6, 2011, Ont. S.C.J., Maranger J., File No. 12838; 12796) 94 W.C.B. (2d) 836 (80 pp.). Forgery ELEMENTS OF OFFENCE Crown failed to call evidence that equipment was adapted for fraudulent purpose Accused were seen removing equipment from bank ATM machine. Accused were acquit- ted of possession of equipment for forging credit cards, credit card reader, PIN pad cover and pinhole camera, because Crown failed to call evidence that equipment was adapted for fraudulent purpose. Ac- cused convicted of possession of instruments for forgery, at- tempted fraud and one count of driving while disqualifi ed. R. v. Voitishin (June 17, 2009, Ont. C.J., Fairgrieve J.) 94 W.C.B. (2d) 838 (16 pp.). Robbery PROOF OF OFFENCE Inculpatory statement of accused excluded on basis he was not PAGE 15 properly informed of rights to have parents or lawyer present Accused, a youth, was charged with accessory after the fact by enabling his co-accused to es- cape knowing they had robbed two teenage females. Accused was seen on video changing hats with another suspect and allegedly trying to hide replica handgun although replica gun recovered later was not seen on video. All other youths involved had their charges dismissed or had been sentenced. Defence applied for no evidence motion after which Crown applied to reopen its case and have already sentenced co-accused testify. Crown motion to reopen case denied, defence no evidence motion granted. Inculpatory statement of accused was ex- cluded from evidence on basis he was not properly informed of his rights to have his parents or lawyer present before he ut- tered it and it was not sponta- neous but response to offi cer's statement that they had him on videotape. As counsel for accused had already elected to move by way of no evidence motion, allowing co-accused, who had benefi t of hearing all evidence already, to testify, was too prejudicial. Individual ac- cused changed hats with was not charged. Gun was not seen on video, camera was not fo- cused on site throughout whole time period, other people were seen in area and gun was not re- covered for over half hour. R. v. B. (Y.) (May 24, 2011, Ont. C.J., Nicholas J.) 94 W.C.B. (2d) 859 (14 pp.). 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