Law Times

PAGE 18 tant acts of contempt. Serving previous period of jail time had not influenced defendant's atti- tude and conduct. Doobay v. Diamond (July 21, 2011, Ont. S.C.J., Allen J., File No. 04-CV-276483CM2) 205 A.C.W.S. (3d) 381 (9 pp.). Necessary to bring home to defen- dants gravity of their misconduct Motion by plaintiffs for order finding defendants to be in contempt of court. Plaintiffs had consent judgments against defendants. Judgments arose out of defendants admitted failure to answer all undertak- ings given on their respective examinations in aid of execu- tion and numerous court or- ders requiring them to provide information and documenta- tion pertaining to their income, expenses, assets and liabilities. Motion granted. It was ordered that defendants serve 90 days in prison to be served intermit- tently on alternate weekends, and that defendants answer all undertakings within 30 days. Defendants' breaches of their undertakings and court orders were intentional and deliberate. Given defendants' consistent failure to comply with their un- dertakings and consent court orders, and their chronic last minute adjournment requests throughout these proceed- ings, serious doubts existed as to whether defendants would comply with terms of condi- tional sentence. Having regard to sentencing principles of gen- eral and specific deterrence, it was necessary to bring home to defendants gravity of their mis- conduct. Uyj Air Inc. v. Barnes (June 20, 2011, Ont. S.C.J., Roberts J., File No. 06-CV-318015; 06-CV-318977SR) 205 A.C.W.S. (3d) 382 (12 pp.). Family Law COSTS To award costs two to three times child support agreed to would be ludicrous result Issue between parties was how much child support respon- dent should pay for his son. Respondent owned three car dealerships. Rather than focus on how best to provide for their son, issue became how big sup- port award could be obtained from respondent. Squeezed, respondent fought back. Large amounts of money was spent, while counsel thrust and par- ried their way through pretrial manoeuvres. This was child support case. To award costs that were two to three times child support agreed to would be ludicrous result. No costs payable by either party. Wilkie v. McArthur (Aug. 4, 2011, Ont. S.C.J., Thomp- son J., File No. 04-187) 205 A.C.W.S. (3d) 410 (6 pp.). PROPERTY Motions judge erred by granting order that far exceeded in scope order proposed Appeal by defendants from decision granting plaintiffs un- fettered access to defendants' premises on motion by plain- tiffs for mandatory order re- quiring defendants to release to plaintiff all of plaintiff's per- sonal property in possession of defendants. Plaintiff was mar- ried to defendant. Plaintiff left house, and wished to recover certain belongings. Husband held legal title to property. Plaintiff commenced claim, and defendants were noted in default. Defendants hired counsel. Defendants did not appear at trial, but counsel did. Appeal allowed. Motions judge erred by denying counsel op- portunity to make submissions to him with respect to whether her motion to set aside noting in default should be heard. Mo- tions judge erred by denying counsel opportunity to make submissions to him with respect to plaintiffs' motion. Motions judge further erred by grant- ing order that far exceeded in scope order that was proposed in plaintiffs' notice of motion. Motions judge further erred by ordering terms that were ex- cessive, unlimited in time and duration and not supported by evidence. Motions judge failed to provide adequate reasons. Park v. Park (July 28, 2011, Ont. S.C.J. (Div. Ct.), Matlow, Heeney and Pomerance JJ., File No. DC 11-270) 205 A.C.W.S. (3d) 459 (10 pp.). SUPPORT Father failed to establish medical excuse provided reasonable justification for under-employment Request by father for rescission of child support arrears and retroactive variation of child support. Mother and father were married in 1988, had one child, and separated when child was very young. Pursuant to or- der, grandmother and mother were awarded joint custody of child with child's primary residence with grandmother. In 1998, father was ordered to pay child support. Father made no payments. Father claimed that he experienced symptoms as- sociated with bipolar disorder, major depression, and chronic pain, and had been unable to work since order. Father's current monthly income was $976. Motion granted in part. Arrears of child support were adjusted by calculating total amount of child support owed on income of $37,500 up to January 2006, and imputed income of $21,300 between January 2006 to November 2010. Reasons given by father for non-payment were lacking. Father had ability to be more aggressive and industrious. Fa- ther had capacity at least up to 2006 to earn annual income of $37,500. Grandmother es- tablished that father had been intentionally unemployed or under-employed. Father failed to establish that medical excuse provided reasonable justifica- tion for his under-employment. Cole v. Freiwald (July 28, 2011, Ont. C.J., Zuker J., File No. D1366/95) 205 A.C.W.S. (3d) 489 (23 pp.). Negotiable Instruments PROMISSORY NOTES CASELAW No evidence that plaintiff concealed any documentation Plaintiff sought summary judg- ment against two individuals in amount of $190,512. Two indi- viduals signed promissory notes in favour of plaintiff in amount of $150,000. In addition to promissory notes signed by two individuals, they also signed commitment letter. Summary judgment was granted. Plain- tiff had established that there was no genuine issue requir- ing trial. Both of defendants were experienced businessmen. They signed documents that outlined financial position of plaintiff. They had access to lawyers. Documents could have been verified by search in title. There was no evidence raised by defendants that plaintiff con- cealed any documentation. Force 10 Capital Management Inc. v. Bulk (Aug. 3, 2011, Ont. S.C.J., Matheson J., File No. 11-26910) 205 A.C.W.S. (3d) 571 (10 pp.). Professions BARRISTERS AND SOLICITORS Would undermine credibility of justice system to allow plaintiffs second chance to proceed on same evidence Plaintiff hired defendant to give opinion on medical malprac- tice action. Defendant advised plaintiffs to discontinue action against doctors. Plaintiffs did so. Claim was tried against the hospital. Nurses were found not to have been negligent in triage. It was found it would have been too late to administer tPA. Staff was found to have good reason to take 830 p.m. as onset of symptoms. Plaintiffs brought action against lawyer for negli- gence. Defendant brought mo- tion to dismiss action as abuse of process. Motion was allowed. It would undermine credibility of justice system to allow plain- tiffs second chance to proceed on same evidence. Action was abusive and futile. Action was dismissed. Hasselsjo v. Hooper (July 18, 2011, Ont. S.C.J., Ramsay J., File No. 10-23325) 205 A.C.W.S. (3d) 574 (3 pp.). ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE No credible explanation for reason for witness' recantation two years after the fact Accused convicted of rob- bery. Crown's case resting on evidence of two unsavoury wit- nesses identifying accused. Two years after trial, Crown witness providing sworn affidavit re- canting his trial testimony im- plicating accused. Application to adduce recantation as fresh evidence dismissed and appeal dismissed. While admissibility and due diligence criteria met, recantation was incredible and unworthy of belief. No credible www.lawtimesnews.com explanation for reason for wit- ness' recantation two years after the fact. Affidavit contained false statements and witness' at- titude to veracity of its contents ambivalent. Recantation could not reasonably be expected to affect assessment of witness' trial testimony implicating ac- cused in robbery. R. v. Snyder (June 10, 2011, Ont. C.A., Doherty, Feldman and Epstein JJ.A., File No. C48284) 96 W.C.B. (2d) 121 (28 pp.). GROUNDS Evidence of prior audits admissible to demonstrate pattern of conduct Appeal by accused from his con- viction for criminal negligence, dismissed. Accused's principal submission, that evidence re- garding the condition of the brake system was fabricated, was rejected. Evidence did not support this allegation. Trial judge dealt with this claim and he explained why he rejected it. His reasons were supported by the record and were reasonable. Evidence of prior audits was not improper similar fact evidence. It was admissible to demon- strate pattern of conduct and to rebut allegations of fabrication. Accused not only did not object to admissibility of this evidence but he urged judge to admit it when judge questioned its ad- missibility. His claim that some of the evidence of the MTO investigation should have been excluded was rejected. Evidence was relevant. This submission was also rejected because it was being raised for the first time on appeal. R. v. Peric (June 29, 2011, Ont. C.A., Rosenberg, Cronk and Watt JJ.A., File No. C46345) Decision at 73 W.C.B. (2d) 332 affirmed. 96 W.C.B. (2d) 123 (3 pp.). Decision by trial counsel not to serve notice of alibi did not constitute ineffective assistance Appeal by accused from his con- victions for robbery, attempted murder while using firearm, ag- gravated assault by discharging firearm, using firearm in com- mission of indictable offence and discharging firearm with intent to prevent his arrest or detention. Defence counsel did not serve notice of alibi on Crown as it did not intend to have him testify. Accused then decided to testify and offered an alibi that he was at his mother's home when crimes were being committed. He claimed inef- fective assistance of counsel and that trial judge made several er- rors in her instructions to jury. Appeal dismissed. There was no support for accused's submis- sion that judge should instruct jury that it could draw adverse inference from accused's failure to make timely disclosure of alibi defence only where Crown established by evidence that po- lice could have conducted more meaningful investigation if alibi was disclosed earlier. Decision by accused's trial counsel not to serve notice of alibi did not constitute ineffective assistance of counsel for original deci- November 7, 2011 • Law Times sion that accused would not testify was professional tacti- cal decision that would not be second guessed. Submission that judge's failure to instruct jury that accused did not have to prove the alibi but only raise reasonable doubt was rejected. Jury would have understood from judge's instructions that Crown had to disprove ac- cused's claim of alibi in course of establishing his guilt beyond reasonable doubt. Judge was en- titled to draw adverse inference from accused's failure to call his mother as an alibi witness since she was person who could have supported alibi. Judge did not err when she refused to allow accused to explain why he did not call his mother to testify because she suffered from pan- ic attacks. Such evidence was properly rejected as being hear- say or opinion evidence. Judge did not err when she did not provide an unsavory witness instruction regarding one of the main Crown witnesses. It was open to judge, who saw witness testify and who assessed her tes- timony to conclude that such instruction was not required to ensure a fair trial. R. v. Borde (July 28, 2011, Ont. C.A., Goudge, Juriansz and MacFarland JJ.A., File No. C49685) Decision at 78 W.C.B. (2d) 832 affirmed. 96 W.C.B. (2d) 125 (12 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Search was valid as made incidental to lawful arrest Trial of accused on five counts of theft over, break, enter and commit, possession of prop- erty obtained by crime under $5,000, obstruction of justice and possession of break-in in- struments. Accused applied to exclude evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Individual broke into car dealership and stole 24 ve- hicle keys. Five vehicles were subsequently stolen from deal- ership parking lot. Subsequent- ly, police officer discovered vehicle that was parked in pro- hibited area in restaurant park- ing lot. Driver's side window was open, engine was running and its lights were on. Licence check showed that plate was unattached and that it had ex- pired four years before. Valida- tion sticker also expired. Officer thought he was dealing with stolen car because of accused's conduct when he approached car and then spoke to officer about it. Accused provided false name when he spoke to officer. He was arrested when he at- tempted to flee from scene. Car was going to be towed and an- other officer searched it to pre- pare inventory of its contents. It was from there that four of stolen keys were discovered. Police also discovered burglary tools in trunk. They subse- quently discovered accused's true identity. They also found out that he was prohibited driv- er and he was subject of crimi- nal warrant for dangerous driv-

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