Law Times

Law Times • November 14, 2011 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.). Sentence MANSLAUGHTER Accused in Canada illegally and would be deported once imprisonment completed Sentencing of accused after he pleaded guilty to one count of manslaughter and three counts of robbery committed with co-accused. Manslaughter oc- curred when owner of fl ower shop, which accused and co- accused robbed and who was tied up, suff ocated from rag that was put into her mouth to keep her quiet and from tight- ly tied tape that covered her mouth and nose. Even though accused played secondary role in the off ences he was a willing participant in a month-long crime spree. Accused was 25 years old. He did not have a criminal record. Accused was in Canada illegally and he would be deported once he completed his imprisonment. Accused was sentenced to 10 years' impris- onment for the manslaughter and 2.5 years concurrent to each other but consecutive to manslaughter sentence for each of the three robberies. Global sentence was reduced by 6.5 years for time served and ac- cused had to serve 6 years. R. v. Joseph (July 18, 2011, Ont. S.C.J., Dambrot J., File No. 4-430/09; 4-159/11) 96 W.C.B. (2d) 241 (13 pp.). PREVENTIVE DETENTION Accused's crimes constituted serious personal injury offences Crown applied to have accused declared dangerous off ender after he was convicted of two counts of fi rst degree murder, 10 counts of aggravated sexual assault and one count of at- tempted aggravated sexual as- sault. Accused had unprotected penetrative sex with each of 11 victims without fi rst telling any of them that he was HIV posi- tive when he knew that he was. Two of victims died from ma- lignancies associated with HIV infection and another fi ve of victims were infected with the virus. Remaining four victims were placed at grave risk by be- ing exposed to the virus. After health offi cials became aware that accused was engaged in high risk sexual activity he was subjected to an order requiring him to report his condition to his partners, wear a condom during sexual intercourse and report to health offi cials any activity, but accused did not comply. Accused sentenced to life imprisonment with no pos- sibility of parole for 25 years and declared dangerous off end- er. Court found that accused's crimes constituted serious per- sonal injury off ences and was satisfi ed that convictions for ag- gravated sexual and attempted aggravated sexual assault were result of pattern of repetitive behaviour by accused showing failure to restrain his behaviour. Court found accused continued to represent substantial risk to any potential sexual partners in the future. Accused was either unwilling or unable to have real understanding of seriousness of consequences of his behaviour and had not displayed genuine remorse for what he had done and fatal outcomes that result- ed from his actions. R. v. Aziga (Aug. 2, 2011, Ont. S.C.J., Lofchik J., File No. 10- 2521) 96 W.C.B. (2d) 246 (60 pp.). ONTARIO CIVIL CASES Civil Procedure COSTS Should have been obvious to plaintiffs that they stood little or no chance of success Plaintiff s' motion for summary judgment was dismissed. Defen- dant was successful on motion. Motion was of moderate com- plexity. Motion was important to parties. Defendant made of- fer to settle. It should have been obvious to plaintiff s that plain- tiff s stood little or no chance of success. Plaintiff s were to pay costs on substantial indemnity basis. Plaintiff s were ordered to pay costs of $68,064 inclusive of fees, HST and disbursements within 30 days. Allen v. Succession Capital Corp. (July 25, 2011, Ont. S.C.J., Goodman J., File No. 1951/10) 205 A.C.W.S. (3d) 638 (15 pp.). DEFAULT Persons with fiduciary duty could be ordered to repay estate for moneys not properly accounted for Application by plaintiffs for default judgment against certain defendants. Plain- tiffs were estate trustees and sought damages for conspir- acy, unlawful interference, misappropriation and failure to account for funds. First de- fendant had previously been attorney and co-trustee but was found in contempt and removed as trustee for failure to pass accounts. Defendants owed outstanding debts to estate and had still failed to provide accounting, despite repeated requests by plain- tiffs. Application allowed in part. There were no direct allegations against second de- fendant so no judgment could be made against her. Persons with fiduciary duty to estate, such as attorneys and trustees could be ordered to repay es- tate for moneys not properly accounted for. Since defen- dants owed estate money and were deemed to have admit- ted allegations given default, it was appropriate to order them to pay amounts owing into court pending full ac- CASELAW countant. Onus would then be on defendants to avoid judgment becoming final. Hooper Estate v. Hooper (July 29, 2011, Ont. S.C.J., Gunso- lus J., File No. 68007/10) 205 A.C.W.S. (3d) 651 (9 pp.). SUMMARY JUDGMENT Snow removal contractor obligated to defend and indemnify defendant owners Plaintiff fell on front stairs to premises which was said to be result of black ice on stairs. De- fendants owned building. De- fendants brought motion for summary judgment as against snow removal contractors. De- fendants sought to have claims dismissed as against defendant property owners. Contract spe- cifi cally set out contractor's re- sponsibility. Based on contract and context of pleadings, snow removal contractor was obli- gated to defend and indemnify defendant property owners not- withstanding snow removal con- tractor failed to name property owners as insured contrary to contract. Papapetrou v. 1054422 On- tario Ltd. (Aug. 8, 2011, Ont. S.C.J., Milanetti J., File No. C-1243-06) 205 A.C.W.S. (3d) 665 (7 pp.). Family Law CHILD WELFARE Mother did not establish ability to provide safe home and consistent parenting Society sought order for Crown wardship of two children with no access for purpose of adop- tion. Society relied on allega- tion mother did not comply with terms of order. Motion for summary judgment was allowed. Mother did not es- tablish ability to provide safe home and consistent parent- ing. Mother had done too little to raise triable issues. It was plain and obvious mother would not succeed at trial. C.A.S. Simcoe v. B. (K.) (July 28, 2011, Ont. S.C.J., Olah J., File No. FC-09-895) 205 A.C.W.S. (3d) 698 (14 pp.). PROPERTY Appropriate for mother to live in matrimonial home with children Adjournment request by father. Mother had moved for exclu- sive possession of matrimonial home and interim custody of three children, aged 16, 14 and 9. Motion was short-served and father wanted two weeks to pre- pare. Mother agreed to adjourn- ment provided she be granted exclusive possession in mean- time. Parties married in 1992 and separated in May 2011 when mother left for women's shelter with children. Mother deposed her allotted time in shelter was ending and she could aff ord to maintain mat- rimonial home. Adjournment request granted but mother granted interim, interim cus- tody and interim interim exclu- sive possession. Living in shelter was not in children's best inter- ests. Older children's opinions were entitled to weight and they wanted to live with mother, so it was appropriate for mother to www.lawtimesnews.com live in matrimonial home with children. Meetke v. Meetke (July 12, 2011, Ont. S.C.J., Shaw J., File No. FS-11-0201) 205 A.C.W.S. (3d) 721 (7 pp.). Injunctions INTERLOCUTORY RELIEF No evidence to support allegation that defendant enticed individual to leave plaintiff Defendant was former employ- ee of plaintiff . Plaintiff sought to enforce non-competition and non-solicitation clauses in employment contract with de- fendant. Plaintiff brought ap- plication. Th ere was no action or proceeding underlying ap- plication. Plaintiff brought no evidence to support allegation that defendant enticed individ- ual to leave plaintiff . Applica- tion was dismissed. Arguments on non-solicitation claim were not entertained. Application was not appropriate proceed- ing for relief sought. Relief would best be sought by way of action for damages. Portable Packaging Systems Inc. v. Brackin (July 19, 2011, Ont. S.C.J., Allen J., File No. CV- 11-426374) 205 A.C.W.S. (3d) 828 (6 pp.). Professions BARRISTERS AND SOLICITORS No public policy reason to over- turn contingency fee agreement Th is was application for as- sessment of solicitor's account PAGE 15 based on contingency fee agreement. Client was injured in motor vehicle accident in January 1997. In May 2005 cli- ent retained law fi rm to act on his behalf. Parties entered into contingency fee agreement that provided that legal fees would be 30% of total amount recovered for claim and that client would be responsible for disburse- ments. Lawyers viewed client as extremely diffi cult. Client's claim was settled at pretrial conference in November 2007 for total payment of $750,000 plus assessable disbursements. Law fi rm received net fee of $138,456. Net amount client received was $516,473. Appli- cation dismissed. Contingency fee agreement did not comply with requirements of Con- tingency Fee Agreements, O. Reg. 195/04. Contingency fee agreement that did not meet re- quirements of Regulation was not inherently void or void- able. Legislature intended to give court discretion to enforce contingency fee agreement if it was fair and reasonable. Con- tingency fee agreement was fair and reasonable. Th ere was no public policy reason to over- turn contingency fee agree- ment. Law fi rm met standard of care required of personal injury lawyer. Th ere was no breach of Rules of Professional Conduct. Contingency fee agreement was enforceable. Laushway Law Offi ce v. Simpson (July 4, 2011, Ont. S.C.J., Be- audoin J., File No. CV-08-50- 00) 205 A.C.W.S. (3d) 857 (52 pp.). 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