Law Times

Law Times • sepTember 13, 2010 procedural issues. Society did not act in bad faith in conduct of litigation of case. Society did not exceed mandate and did not conduct itself in malicious or negligent fashion. Result ar- guably justifi ed society's posi- tion as society's concerns were addressed by interim without- prejudice supervision condition imposed by court. Where duties to child were performed in ac- cordance with statute, there was no ancillary duty to accommo- date family's wish for diff erent result. Children's Aid Society of To- ronto v. K. (S.) (May 19, 2010, Ont. C.J., Zuker J., File No. C49215/09) 190 A.C.W.S. (3d) 136 (29 pp.). Professions BARRISTERS AND SOLICITORS No evidence that solicitor dishonest, in conflict of interest or had divided loyalties Plaintiff and TDL signed deal for TDL to purchase property from plaintiff . TDL purchased entire property and lease agree- ment came into eff ect that en- abled plaintiff to continue to operate business. Plaintiff list- ed business for sale. TDL ad- vised plaintiff lease could not be assigned and business could not be sold. Plaintiff decided to close business. Plaintiff alleged negligence, breach of contract and breach of fi duciary duty against solicitor on basis solici- tor failed to follow plaintiff 's instructions. Plaintiff did not prove solicitor was negligent in not ensuring ten-year lease at specifi c rent for entire period. Plaintiff submitted no evidence on which to determine solicitor was negligent in failing to en- sure TDL would be responsible for repairs of capital nature to building where plaintiff 's busi- ness was situated. Plaintiff was aware of restriction in ability to assign lease. Th ere was no evidence of breach of fi duciary duty. Th ere was no evidence solicitor was dishonest, was in position of confl ict of interest or had divided loyalties. On basis of retainer and evidence there was not evidence of breach of contractual duty on part of solicitor. Plaintiff did not prove causation. Dinevski v. Snowdon (May 11, 2010, Ont. S.C.J., Har- ris J., File No. 07-29200) 190 A.C.W.S. (3d) 281 (27 pp.). Torts NEGLIGENCE Trial judge gave careful reasons for concluding defence of volenti non fit injuria was not available Apartment building caught fi re when appellant's torch ignited nearby highly fl ammable mate- rial. Trial judge found appellant was negligent. Trial judge found respondent's representative in- structed appellant to continue work and not to worry that if anything happened it would be respondent's responsibility. Ap- peal was allowed. Trial judge gave careful reasons for concluding defence of volenti non fi t inju- ria was not available. Trial judge failed to give eff ect to resulting power imbalance that occurred in circumstances of general con- tractor and subcontractor when apportioning fault. Property ap- portionment of fault was 75% to respondent and 25% to ap- pellant. Trial judge erred in cal- culation of damages in including amounts paid by respondent on account of legal fees in rela- tion to litigation pending to its insurance coverage. It was not reasonably foreseeable that as re- sult of appellant's negligence in causing fi re, respondent would have to engage in litigation with insurer concerning coverage issues. Total damages were re- duced to $235,134. Appellant's share of damages was reduced to $58,783. Jelco Construction Ltd. v. Vas- co (June 16, 2010, Ont. C.A., Simmons, LaForme and Ep- stein JJ.A., File No. C50951) 190 A.C.W.S. (3d) 309 (5 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Complainant minimized force he used during confrontation Complainant testifi ed accused confronted him as he was get- ting out of van, assaulted him and ripped expensive chain from his neck. Accused testi- fi ed complainant waved him over and pushing match turned into fi ght. Assault charge dis- missed. Complainant's testi- mony was materially support- ed by daughter and his injuries were consistent with coming up against man much larger and stronger than him. Given accused's injuries, complain- ant minimized force he used in response and amount of time taken up by fi ght. Complain- ant's evidence that accused's ac- tions caused him to suff er red marks on both sides of his neck was not consistent with obser- vations of offi cer. Accused had no criminal record, but his reli- ability was questionable. It was probable that accused struck and injured complainant for unclear reasons, but court was left in reasonable doubt that accused attended plaza for pur- pose of assaulting and intimi- dating complainant and that he initiated physical violence. Court was uncertain how and why fi ght began and how it ended. R. v. Watson (June 25, 2010, Ont. C.J., Feldman J.) 88 W.C.B. (2d) 725 (6 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Charter breach was serious but there was no bad faith exercised by officer Accused charged with impaired driving. Accused applied to ex- clude evidence based on breach of s. 10(b) Charter rights. Of- fi cer responded to call regard- CASELAW ing suspicious person at con- venience store and saw accused sitting in driver's seat of vehicle. Offi cer interacted with accused for fi ve minutes, interviewed store clerk and then arrested accused for impaired driving. Accused argued offi cer did not provide him with his right to counsel for 18 minutes that he was detained before arrest. Application dismissed. No evi- dence that delay in informing accused of his right to coun- sel was due to offi cer or public safety concerns. Offi cer did not comply with Charter require- ment to advise accused of his s. 10(b) rights without delay. Charter breach was serious but there was no bad faith exercised by offi cer. Accused's opportunity to speak to counsel was delayed and there was some impact on his Charter-protected interests. Court could only speculate as to what steps, if any, accused might have been taken to implement his right to counsel without any further delay. Accused's advice from duty counsel was obtained before he provided breath sam- ples. Breath sample evidence was highly reliable. Because this matter dated back to period when duties and obligations of police were less well-defi ned, it was less likely that admission of breath samples would bring administration of justice into disrepute. Nature of s. 10(b) breach did not require that evi- dence of offi cer's observations of accused, which would have been obtained in any event, be excluded. R. v. Valdes (June 22, 2010, Ont. C.J., Beninger J.) 88 W.C.B. (2d) 730 (8 pp.). FUNDAMENTAL JUSTICE Failure to create evidence could not be equated with failure to preserve evidence Accused appealed conviction for failing to comply with breath demand. Breath room was equipped with video equipment but detachment's supply of video tapes had run out. Accused argued trial judge erred in failing to fi nd that failure of police to videotape proceedings in breath room constituted breach of his rights under ss. 7 and 11(d) of Char- ter. Appeal dismissed. Failure to create evidence could not be equated with failure to pre- serve evidence. Crown's disclo- sure obligation did not extend to material that was not in its possession or control and did not require Crown to bring ev- idence into existence. No sug- gestion that offi cer deliberately failed to record breath testing process and no evidence of bad faith. Suffi cient evidence from police and from accused for trial judge to make relevant determinations. Findings made by trial judge left no reasonable basis for drawing adverse infer- ence against offi cer's credibility. Even if breath testing process could be analogized to custodi- al interrogation, circumstances under which adverse inference could be drawn against credi- bility of offi cer who conducted process did not exist. R. v. Khan (July 6, 2010, Ont. www.lawtimesnews.com S.C.J., MacDonnell J., File No. SCA 01/99) 88 W.C.B. (2d) 733 (8 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Accused was convicted of impaired care and control Trial of accused on charges of impaired care and control of motor vehicle and for driving with blood alcohol level over le- gal limit. Police offi cer found ac- cused's vehicle parked in shoul- der of road. Its parking lights were on, left tires encroached on driving lane and driver's door was open and it protruded three feet from car. Accused stood behind car and he urinat- ed into ditch. He also appeared to be impaired. Offi cer asked him for his documentation, which he provided and keys to vehicle were found on driver's seat. Accused only sat in driver's seat when offi cer asked him for his documentation. Accused was convicted of impaired care and control. Other charge was conditionally stayed. Facts of case led to irresistible inference that accused did not abandon care and control of vehicle. He interrupted his driving only to urinate on side of road in dark and lightly populated area. He intended to continue driving. He was also in care and control as there was serious risk of dan- ger that he would put vehicle into motion in his inebriated state. He also created danger by manner in which he parked for open door would cause other PAGE 15 vehicles to swerve to avoid it. R. v. Mitchell (June 14, 2010, Ont. C.J., Beatty J., File No. 2411-998-09-1059-00) W.C.B. (2d) 762 (8 pp.). 88 Threatening And Intimidation PROOF OF OFFENCE Interaction between accused and complainant did not rise to level of criminal harassment Accused charged with uttering death threat, threatening bodily harm and two counts of crimi- nal harassment. Accused and complainant were classmates at military training course. Com- plainant was married to po- lice offi cer and accused made frequent derogatory remarks against police offi cers. Accused believed complainant per- formed background checks on all of their classmates through access provided by her husband. Complainant's husband received phone call in which threats were made to kill him. Accused ac- quitted of all charges. Proof ten- dered did not prove accused's guilt beyond reasonable doubt. Identity of caller could not be made out. Interaction between accused and complainant may have been uncomfortable but did not rise to level of criminal harassment. Reasonable doubt existed as to whether complain- ant reasonably had fear for her safety based on remarks and be- haviour of accused. R. v. Kranz (June 7, 2010, Ont. S.C.J., Hackland R.S.J., File No. 08-2158) 88 W.C.B. (2d) 805 (19 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. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• Sophisticated Scams
• HST On Trial
• Focus On Human Rights Law