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Law timeS • September 20, 2010 with condition of undertaking while on release. He had long criminal record. It consisted of 44 convictions, which in- cluded 24 violent off ences and two prior convictions for sexual assaults. Accused was 29-year old aboriginal at time he was convicted in 2009. Application allowed. Accused committed serious personal injury off ence. He failed to restrain his behav- iour and was unable to control himself. Th ere was extremely high risk that accused would re-off end. Accused was indif- ferent to reasonably foreseeable consequences to other persons of his behaviour. He therefore met criteria of dangerous of- fender. Accused was not capable of treatment so that he could be considered long-term off ender. He could not be controlled and he lived by his own code. Since there were no less restrictive means by which public could be protected from threat of harm by accused he was declared to be dangerous off ender and he was sentenced to indeterminate term of imprisonment. Accused also had to provide DNA sam- ple and was subject to lifetime weapons prohibition. R. v. Pascal (June 11, 2010, Ont. S.C.J., Platana J., File No. CR-08-038) 89 W.C.B. (2d) 190 (46 pp.). ONTARIO CIVIL CASE Contracts INTERPRETATION Terms of contract were not ambiguous Applicant owned share in re- spondent corporation and was entitled to occupy property. Applicant entered into contract with respondent concerning property applicant occupied as member of corporation and use to which property could be put. In 2005, applicant was placed on two-year probation which prohibited applicant from en- gaging in commercial fi shing operation while on probation. In 2008, applicant was placed on probation which presented applicant from engaging in commercial fi shing for ten years. Applicant's son used applicant's docking facility for commercial fi shing. Respondent wished to create turn-around area on ap- plicant's site. Applicant sought interpretation of contract with respondent. Terms of contract were not ambiguous so as to in- voke contra proferentum rule. Parties intended to make ex- ception to rules that prohibited commercial activity at property recognizing applicant's father fi shed commercially from site. Under terms of contract per- mission to fi sh commercially was extended only to applicant. Contract did not permit son to fi sh commercially from appli- cant's site. Consent to dredging by respondent was not neces- sarily incidental to applicant's operation of commercial fi sh- ery. Application for declaration of applicant's boundary and prohibiting respondent from creating turn-around and boat launch in area was dismissed. Sameluk v. Wild Goose Bay Cottagers' Assn. (July 8, 2010, Ont. S.C.J., Pierce R.S.J., File No. CV-08-000373-00) 190 A.C.W.S. (3d) 759 (10 pp.). Courts ABUSE OF PROCESS Issues in action had already been determined by Small Claims Court and Ontario Labour Relations Board Motion by defendants to strike plaintiff 's statement of claim and reply to statement of de- fence without leave to amend. Plaintiff commenced action in February 2010, on basis of al- leged and unspecifi ed defama- tion resulting from plaintiff 's employment and termination from employment with City of Niagara Falls. Plaintiff was terminated in 2005 and fi led grievances on basis he had been discriminated against and in- timidated by supervisor. Th ose grievances were dismissed so plaintiff fi led grievances alleged his union had failed to properly represent him. Th ose grievanc- es were also dismissed. In 2008, city solicitor sent plaintiff letter prohibiting him from attend- ing city offi ces and workspaces as employees were concerned plaintiff intended to cause them harm. Letter was sent only to plaintiff , not published and defendants had nothing to do with authoring or send- ing it. Plaintiff had also com- menced Small Claims Court action against city, alleging def- amation, which had been dis- missed. Motion allowed. Issues in this action had already been determined by Small Claims Court and Ontario Labour Relations Board, so action was vexatious and abuse of process. No legal merit to action since defendants had nothing to do with letter complained of. Giv- en abuse of process and lack of merit, plaintiff not given leave to amend. Butera v. Fragale (June 25, 2010, Ont. S.C.J., Turnbull J., File No. 10-17756) 190 A.C.W.S. (3d) 773 (12 pp.). Family Law CUSTODY Father failed to discharge burden to show material change in circumstances Parties were married in 2000 and separated in 2008. Par- ties had one child. Final order granted sole custody of child to mother based on minutes of settlement executed by par- ties. Minutes of settlement in- cluded provisions for father's access to son. Father brought motion to vary order by tak- ing custody away from mother and awarding same to father on interim basis. Father argued that variation was justifi ed by signifi cant material changes arising from parental alienation tactics engaged by mother since fi nal order. Father also accused mother of being in contempt of access provisions in fi nal order. Motion dismissed. To justify variation, father was required CASELAW to show that there had been change in condition, means, needs or circumstances of child or ability of parents to meet needs of child, which materi- ally aff ected child. Father was further required to show that change was either not foreseen or could not have been reason- ably contemplated when initial order was made. Father failed to discharge burden to show ma- terial change in circumstances. Th ere was no credible or cogent evidence of alienating conduct of mother. On contrary child was happy child who looked forward to seeing father but father did not exercise access rights to fullest. Although father was awarded up to 96 hours of access per month under fi nal order, father had only exercised access six times since date of or- der. Child had lived in loving, safe and stable environment with mother since fi nal order was made. Judge was persuaded that mother continued to en- courage child to maintain posi- tive towards father. Th ere was also no evidence that mother had been in contempt of access provisions. Zinyama-Mubili v. Mubili (July 9, 2010, Ont. S.C.J., Quig- ley J., File No. 5514/08) 190 A.C.W.S. (3d) 845 (21 pp.). Professions BARRISTERS AND SOLICITORS Tort contingency fee was reduced to 25 per cent Court was asked to approve settlement of plaintiff 's tort action and statutory accident benefi ts settlement which arose out of motor vehicle accident. Plaintiff was incapable person. Court was asked to approve investment arrangements and solicitor's contingency fee claimed on both settlements. Tort defendant agreed to pay $550,000 as all-inclusive settle- ment. Settlement of $10,000 for each of two minor children were approved. Tort settle- ment apportioned to wife was $70,000 but court believed it should be reduced to $40,000 to refl ect reduction in tort vic- tim's damages. Expenditure of $300,000 to purchase home and adjoining property was ap- proved. It was plaintiff 's proper- ty and restriction that guardian was prohibited from encum- bering property was to be ref- erenced on title to property. Plaintiff 's SABs were resolved for $400,000 and was approved as in plaintiff 's best interests. Proposal that entire amount of SAB settlement be paid to plaintiff 's guardian to adminis- ter in trust for plaintiff 's future care needs including payment to guardian was not acceptable. Guardian was to be paid $2,500 per month from settlement. Guardian was to pass accounts within three years. Claimed 35% contingency fee on both tort and SAB settlements was excessive. Court allowed fee of 15% of SAB lump sum settle- ment plus fees of $36,035 pre- viously deducted on monthly benefi ts received. Tort contin- gency fee was reduced to 25%. www.lawtimesnews.com Disbursements were allowed at $13,322 including GST. In ad- dendum recommendation that capital sum of approximately $324,000 be invested in TD Waterhouse investment prod- uct was accepted. Aywas (Litigation Guardian of ) v. Kirwan (Apr. 30, 2010, Ont. S.C.J., Hackland J., File No. 09-43667) 190 A.C.W.S. (3d) 739 (11 pp.). FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT No error in judge's decision to declare slate of chief and councillors lawfully elected Application judge declared respondent slate of chief and councillors, elected in two separate elections, was law- fully elected. Respondents were elected chief and councillors pursuant to election procedure set out in Nekaneet Constitu- tion and Nekaneet Governance Act. Another group of band members opposed referendum initiative which resulted in adoption of Nekaneet Consti- tution and Nekaneet Gover- nance Act and expressed their opposition by boycotting pro- cess as well as referendum itself. Th ey organized band council election in accordance with pre- existing band custom, at which time appellants were elected as PAGE 15 chief and band councillors. Ap- plication judge did not commit palpable and overriding error in concluding there was broad consensus in favour of adop- tion of Nekaneet Constitution and Nekaneet Governance Act and, by extension, election of respondents as chief and coun- cillors of Nekaneet First Na- tion. Pahtayken v. Oakes (June 23, 2010, F.C.A., Evans, Pelle- tier and Stratas JJ.A., File No. A-130-09) Decision at 175 A.C.W.S. (3d) 4 was affi rmed. 190 A.C.W.S. (3d) 637 (7 pp.). Intellectual Property Industrial And COPYRIGHT Board's interpretation of s. 29 of Copyright Act (Can.) upheld on review Review of decision of Copy- right Board interpreting s. 29 of Copyright Act (Can.). "Re- search" for purpose of s. 29 is not restricted to any particular type such as scientifi c, econom- ic or cultural. Reproducing previews of musical works to aid consumer in searching for object of copyright constitutes fair dealing for purpose of re- search within meaning of Act. Application for judicial review dismissed. Society of Composers, Authors and Music Publishers of Canada v. Bell Canada (May 14, 2010, F.C.A., Letourneau, Nadon and Pelletier JJ.A., File No. A-514-07) 190 A.C.W.S. (3d) 909 (15 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. 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