Law Times

LAW TIMES • OCTOBER 31, 2011 of relevant documents. Mo- tion was dismissed. Production of memo was collateral and privilege was maintained for it. Th ere was no implied waiver of privilege of memo. Pur- chaser's fi nancial documents were not relevant at time they were received from purchaser. Counsel had reasonable fac- tual basis for determination of relevancy. Evidence was weak and comparison could not be drawn out and it therefore was not relevant to plaintiff at time of discovery. Th ere was no satisfactory evidence that evidence would have been pre- sented. Th ere was no evidence plaintiff searched out evidence and was denied it. It was not just to order new trial. It was questionable evidence had any probative value. Th ere was no evidence counsel would use evidence. Dali v. Panjalingham (July 12, 2011, Ont. S.C.J., McLean J., File No. 07-CV-40166) 205 A.C.W.S. (3d) 94 (14 pp.). Damages GENERAL Defendants intentionally conspired to harm plaintiff Individual defendant in breach of settlement agreement under which he received $386,333 prohibiting him from compet- ing with plaintiff by soliciting plaintiff 's customers and em- ployees for 18-month period. Record established that cor- porate defendants knowingly facilitated and conspired with individual defendant in his wrongdoing with objective of putting plaintiff out of business with view to permitting them to take over business at little or no cost. Judgment for plaintiff against defendants on joint and several basis in amount of $586,333. Plaintiff awarded $386,333 for breach of settle- ment agreement, $125,000 in respect of conversion of cus- tomer list and $75,000 for punitive damages. Defendants intentionally and unlawfully conspired to harm plaintiff and did so with objective of profi t and gain to themselves. Cor- porate defendants knew that individual defendant was in fl agrant breach of contractual obligations through settlement agreement. Infolink Technologies Ltd. v. IVP Technology Corp. (July 12, 2011, Ont. S.C.J., Cumming J., File No. 04-CL-5663) 205 A.C.W.S. (3d) 122 (7 pp.). Municipal Law BYLAWS Defendant did not mislead plaintiff about requirements for operating adult products store Plaintiff opened retail outlet from home selling adult prod- ucts. Plaintiff was charged for and convicted of operating re- tail outlet in residential zone contrary to by-law. Plaintiff brought motion for summary judgment. Defendant sought order dismissing motion and action on ground it was frivo- lous, vexatious and abuse of process. Plaintiff sought dec- laration that section of by-law was invalid and declaration that plaintiff CASELAW could operate adult products store under business license in any zone in which business may ordinar- ily be conducted. Motion was dismissed. Governing statute on motion was Planning Act (Ont.). Defendant did not mislead plaintiff about require- ments for operating adult prod- ucts store within municipality. Plaintiff did not require license but needed location that was properly zoned. Th ere was no genuine issue requiring trial. Plaintiff commenced action to obtain relief plaintiff did not require. Action was frivolous, vexatious and abuse of process. Scott v. North Perth (Munici- pality) (June 24, 2011, Ont. S.C.J., McDermid J., File No. 64687) 205 A.C.W.S. (3d) 89 (8 pp.). Professions BARRISTERS AND SOLICITORS But for negligence of solicitor, respondents would not have advanced funds Appeal by defendants from decision allowing plaintiff 's action for damages for negli- gence. Trial judge found that solicitor was negligent in fail- ing to seek instructions on whether bank wanted mort- gages to be registered on all three parcels of land. Appeal dismissed. Trial judge did nor err in fi nding that defendant were negligent and in awarding damages. But for negligence of solicitor, respondents would ei- ther have not advanced funds or would have obtained securi- ty on all three parcels. Had re- spondents not advanced funds, there would have been no loss. Royal Bank of Canada v. Slo- pen (July 12, 2011, Ont. C.A., Rosenberg, Simmons and Blair JJ.A., File No. C51189) 205 A.C.W.S. (3d) 254 (4 pp.). PHYSICIANS AND SURGEONS Treatment plan advised by family doctor created risk Action by plaintiff s for dam- ages for negligence. Plaintiff s were family members of de- ceased. Deceased visited his family doctor complaining of high fever, fainting and diar- rhoea for two days. Family doctor told deceased he had fl u and recommended deceased consume more fl uids. Th ree days later, deceased attended at emergency for intense shoulder pain, and was released that day being diagnosed with soft tissue injury. Deceased's condition continued to worsen. When deceased showed symptoms of disorientation, he was again taken to emergency. Deceased lost consciousness in ambu- lance. Deceased was diagnosed with infective endocarditis. Deceased was not candidate for valve replacement because condition had progressed too far. Deceased died several days later. Action allowed. Family doctor breached standard of care. Treatment plan advised by family doctor created risk. Family doctors' failure to re- evaluate symptoms within few days should fever persist within successful rehydration plan, meant that family doc- tor could not confi rm that his working diagnosis was appro- priate. Emergency room su- pervising doctor was in breach of her standard of care. Emer- gency room doctor failed to consider or was wilfully blind to all clinical history provided by deceased or his wife, includ- ing history of febrile illness, shakes and chills documented on SARS form. Wilson v. Beck (July 8, 2011, Ont. S.C.J., Morissette J., File No. 46135/05) 205 A.C.W.S. (3d) 256 (59 pp.). Social Welfare SOCIAL ASSISTANCE Tribunal permitted to consider both medical conditions and particular circumstances of respondent Appeal from decision of So- cial Benefi ts Tribunal that re- spondent was a "person with a disability" within s. 41(1) of Ontario Disability Support Program Act, 1997 (Ont.). Tribunal found that while medical evidence was weak, that evidence considered with respondent's own testimony proved impairment substantial and physical substantial restrictions on his activities of daily living. Appeal dismissed. Tribunal did not err in rely- ing on respondent's evidence. Tribunal aware of need for medical evidence to verify im- pairment. Tribunal permitted to consider both medical con- ditions and particular circum- stances of respondent in deter- mining whether impairment substantial. Th ere was medical evidence verifying impairments suff ered by respondent. Deter- mination required consider- ation of totality of evidence in- cluding medical evidence and evidence of respondent. Ontario (Disability Support Program, Director) v. Mohamed (July 5, 2011, Ont. S.C.J. (Div. Ct.), Cumming, Lax and Swinton JJ., File No. 3/10) 205 A.C.W.S. (3d) 271 (6 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Impact of breaches on Charter-protected interests of accused were significant Accused applied to for stay of proceedings or exclusion of ev- idence based on unreasonable search and seizure. Accused also alleged she was unlaw- fully detained and that police failed to make provision for her personal needs over course of search. Stay not appropri- ate remedy. Case involved in- cidents of past misconduct. While police misconduct should not be condoned it did not rise to level of granting stay www.lawtimesnews.com in case. Evidence not admit- ted. Casual disregard for rights of accused could not be con- doned. Impact of breaches on Charter-protected interests of accused were signifi cant. Th ose factors outweighed interests of having case determined on its merits. Admission of evidence would bring administration of justice into disrepute. R. v. Phillips (June 21, 2011, Ont. S.C.J., Gordon J., File No. 01/10) 96 W.C.B. (2d) 79 (8 pp.). Sentence ASSAULT Non-custodial sentence would have meaningful consequence to accused Accused randomly selected a house to go for help. In con- frontation accused stabbed and seriously wounded homeowner with a large knife. Accused, 17-year-old Aboriginal girl, pleaded guilty to aggravated assault. Assault resulted in very serious physical injury which interfered in substantial way with physical and psychologi- cal well-being of victim. Infor- mation endorsed that assault was a serious violent off ence, pursuant to s. 44(2) Youth Criminal Justice Act (Can.). Accused's developmental years were marred by abuse, alco- hol, drugs, multiple changes in residences, instability, lack of hope and despair. Accused had no criminal record. She spent 28 days in pretrial cus- tody without incident and then spent seven months under strict house arrest without in- PAGE 15 cident. Non-custodial sentence would have a meaningful con- sequence to accused and would best promote her rehabilitation and reintegration into soci- ety. Two years' probation, 100 hours of community service; weapons prohibition order for 20 years, DNA order. R. v. C. (K.) (June 27, 2011, Ont. C.J., Wright J., File No. 4911-998-10-Y1173-00) 96 W.C.B. (2d) 106 (13 pp.). MURDER Accused took steps to cover up victim's death Accused sentenced to life im- prisonment with no possibil- ity of parole for 15 years after he was convicted of second degree murder. Accused was 20 years old at time of of- fence with no prior criminal record. Accused was Aborigi- nal. Accused had been in ca- sual sexual relationship with victim before her body was found buried in shallow grave behind his parents' farm. Ac- cused confessed in police in- terview that he and victim ended up in an argument af- ter she informed him that she was pregnant and he ended up choking her to death. Ac- cused's alleged motivation was that victim not disclose he was father as he had a serious girlfriend. Accused took steps to cover up victim's death, in- cluding writing her mother a letter in her name. R. v. Hill (July 28, 2011, Ont. S.C.J., Hambly J., File No. 49/09) 96 W.C.B. (2d) 111 (33 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. 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. 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