Law Times

Law Times • November 28, 2011 of time had passed that had resulted in at least some preju- dice to landlord that could not be remedied. Some documents no longer available as result of passage of time. No certainty landlord could now add bro- kerages as defendants without violating limitation period. Kostruba and Sons Inc. v. Pervez (Aug. 17, 2011, Ont. S.C.J., Gray J., File No. CV-08-1574- 00) 206 A.C.W.S. (3d) 42 (11 pp.). Conflict of Laws JURISDICTION Exclusive jurisdiction resided with New York Supreme Court Husband brought motion for custody and support of two children. Wife had com- menced similar proceeding in Supreme Court of New York. Children were born in United States but lived in Canada until family moved to United States in 2010. Children at- tended school in United States for 2010/2011 school year. Husband resided in former matrimonial home in Ontario on date proceedings were com- menced. Husband intended to continue to reside in Ontario. Court had jurisdiction to hear and determine corollary relief proceeding based on husband's ordinary residence in Ontario. To extent claims were included in New York action, exclusive jurisdiction resided with New York Supreme Court. Claims for custody and access were clearly same matters that were being litigated in both courts. Husband's claim that court could exercise jurisdiction for failure of New York court to as- sume jurisdiction in clear and aggressive manner was reject- ed. Children were not habitu- ally resident in Ontario under Children's Law Reform Act (Ont.). Court declined to ac- cept jurisdiction over matter as it related to custody and access. McMurtrie v. McMurtrie (Aug. 22, 2011, Ont. S.C.J., Reid J., File No. D23135/11) 206 A.C.W.S. (3d) 53 (10 pp.). Contempt of Court GROUNDS Mother's denial of access completely without merit Motion by father for order finding mother to be in con- tempt of court. Parties had two children and separated. Min- utes of settlement provided that parties share joint custody, that children live primarily with mother, and that father have specified access to chil- dren. Father alleged that moth- er was in breach of terms of access. Mother did not appear at hearing. Motion granted. Mother denied father access to children from 2008 to present, contrary to judgment. Mother breached terms of judgment by failing to advise father of children's addresses; failing to provide telephone access to the children; failing to consult and advise father as to change of schooling for children; fail- ing to provide children's report cards; and failing to advise fa- ther about child's autism diag- nosis. Mother's denial of access was completely without merit. Mitchell v. Landriault (Aug. 11, 2011, Ont. S.C.J., Pierce J., File No. FS 35/00) 96 W.C.B. (2d) 206 (11 pp.). Defendants deliberately tried to finesse or circumvent intention of order Motion by plaintiff for order finding defendants in con- tempt of consent order. De- fendants were employed by plaintiff company. Defendants had written agreements with plaintiff whereby after termi- nation of their employment they were permitted to work in freight business through bona- fide independent party, and that for period of two years from date of ceasing employ- ment, defendants would not divert or attempt to divert from plaintiff any business from plaintiff's customers. Plaintiffs learned that defen- dants were doing business with their client. Plaintiffs' motion for injunction was adjourned on basis that defendants will not solicit, divert or attempt to divert any business from any of current customers of plaintiff. Motion granted. Defendants were found to be in contempt of court. Evidence established that defendants willfully dis- obeyed order. Defendants clearly understood terms of order and deliberately tried to finesse or circumvent intention of order by using intermediary. Sure Track Courier Ltd. v. Kai- sersingh (Aug. 12, 2011, Ont. S.C.J., Ricchetti J., File No. CV-11-2817-SR) 96 W.C.B. (2d) 207 (23 pp.). Corporations DIRECTORS Corporate entity being used as shield for fraudulent and improper conduct Tenant leased commercial premises from landlord. Ten- ant brought motion for relief from forfeiture. Order required keys to be returned to tenant on payment of $30,000 to be held as security for costs. Ten- ant's inventory was to remain on premises and tenant was to account for any sales. Tenant was to provide landlord with list of inventory. Tenant failed to pay rent. Landlord obtained order to terminate lease. Bai- liff attended premises to retake possession. Damages claimed by landlord were reasonably foreseeable and flowed directly from breaches by tenant fol- lowing order. Tenant was li- able to landlord for damages. Tenant engaged in misrepre- sentations to landlord with respect to nature of business and intended business plan. Tenant obtained interlocutory and interim injunction order granting relief from forfeiture under false pretences. Tenant and principal and indemnifier were jointly and severally liable to pay landlord unpaid rent in total amount for $264,211. It was appropriate case to disre- gard separate legal personality of corporate entity because it CASELAW was being used as shield for fraudulent and improper con- duct. Public Cash & Carry Ltd. v. Ste- phen-Mitchell Realty Ltd. (Aug. 3, 2011, Ont. S.C.J., Daley J., File No. CV-10-1357-00) 206 A.C.W.S. (3d) 194 (19 pp.). Professions BARRISTERS AND SOLICITORS Would be inequitable to deny respondent assessment Application by solicitor to set aside registrar's order for assess- ment of his accounts. Coun- ter-application by respondent client for court order refer- ring accounts to assessment if registrar's order was set aside. Respondent retained applicant in 2005 to act on her behalf during family litigation. Final account was dated August 16, 2010. Respondent paid total of $496,369. Applicant argued registrar's order was not avail- able because s. 3 of Solicitors Act (Ont.), was not available since respondent had paid all accounts and was claiming spe- cial circumstances. Respondent argued she met precondition of requesting order within 30 days of receiving final account. Respondent asserted that, if it was determined order had to be made by judge, special circumstances would warrant making order. Application dis- missed. Courts had found no distinction between paid and unpaid accounts for purposes of s. 3(b). Fact that retainer ex- tended five years and involved appeal did not affect availabil- ity of registrar's order. It would be inequitable to deny respon- dent an assessment under s. 3 simply because she raised is- sue of special circumstances in response to this application. There was no basis for limiting assessment in scope. Respon- dent sought order on time and was entitled to it. Brusby v. Flak (Aug. 18, 2011, Ont. S.C.J., Frank J., File No. CV-10-410489-0000) 206 A.C.W.S. (3d) 215 (6 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS No direct evidence accused subjectively knew death was likely Accused charged with second degree murder and conspiracy to commit arson. Accused al- leged to have helped plan burning of building in order to collect fire insurance proceeds. Two arsonists used excessive gasoline and caused explosion that resulted in one's death and serious injuries to the other. Crown alleged that accused recruited arsonists and gave building's owner an alibi. Trial judge convicted accused find- ing that he must have known that fire would likely cause death. Murder conviction set aside and manslaughter con- www.lawtimesnews.com viction substituted. Conviction for murder was unreasonable. No direct evidence accused subjectively knew death was likely. Accused was not at scene of fire and no evidence estab- lished that he knew anything about arsonists' use of acceler- ants. Accused's knowledge that death would likely result from fire was not only reasonable in- ference on evidence. R. v. Roks (July 20, 2011, Ont. C.A., Feldman, Rouleau and Watt JJ.A., File No. C48418) 96 W.C.B. (2d) 325 (48 pp.). Evidence WITNESSES Complainant's prior statements never tendered in evidence Accused charged with assaults, sexual assaults and threats against three former roman- tic partners. Accused's recent partner testified that accused had repeatedly punched her in the back of the head, had as- saulted her with a telephone and a chair and had forced her to perform oral sex. Two other former partners testified to various sexual assaults, assaults and threats. Accused testified and denied all allegations. Trial judge accepted evidence of recent partner in reliance on its consistency with her prior statement to police and testi- mony at preliminary inquiry. Appeal allowed and new trial ordered on those counts. Com- plainant's prior statements were never tendered in evi- dence. Trial judge erred in law by basing verdict on evidence PAGE 19 not adduced at trial. R. v. Smith (Aug. 26, 2011, Ont. C.A., Weiler, Blair and Epstein JJ.A., File No. C50528) 96 W.C.B. (2d) 352 (27 pp.). Trial CHARGE TO JURY Trial judge's failure to relate operation of reasonable doubt doctrine reversible error Accused convicted of second degree murder in beating death. Accused contacting police prior to arrest, telling police he was at scene but was not perpetra- tor of fatal assault. Eyewitness evidence being largely excul- patory for accused, sometimes amounting to non-identifica- tion of accused as perpetrator. Trial judge charging jury gen- erally on application of reason- able doubt, but refusing to go further by relating reasonable doubt to exculpatory aspects of statement, eyewitness evidence. Appeal allowed, new trial or- dered. Trial judge's failure to relate operation of doctrine of reasonable doubt to portion of statement by accused disclaim- ing participation in fatal assault amounted to reversible error. Failure to tell jurors that if they believed exculpatory aspects of statement, eyewitness evidence or if left in reasonable doubt by it they must acquit was revers- ible error. R. v. Bucik (Aug. 3, 2011, Ont. C.A., Doherty, Armstrong and Epstein JJ.A., File No. C50441; C51304) 96 W.C.B. (2d) 354 (16 pp.). 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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