Law Times

Law Times • OcTOber 24, 2011 sion of facts throughout proceed- ings due to police intimidation. Convicted affi rmed that Min- ister failed to apply principles of natural justice and procedural eq- uity in assessing new information brought to light. Court affi rmed that Minister's decision was trans- parent, equitable and intelligible. Court affi rmed that omission in dealing specifi cally with each as- pect of evidence presented could not be reasonably interpreted as an omission to consider them. Court affi rmed that no principle was violated and that Minister fulfi lled his obligation to deliver intelligible and founded decision. Bilodeau v. Canada (Ministre de la Justice) (July 14, 2011, F.C., Gauthier J., File No. T-417-10) Reasons in French. 96 W.C.B. (2d) 43 (63 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Sufficient evidence of fugitive's conduct to support inference that he was person who created false documents Appeal by fugitive from order that committed him for extra- dition to Hungary to be pros- ecuted for fraud over $5,000. Fugitive was alleged to have engaged in ongoing fraudulent scheme in which he defrauded banks of $49,000 by submit- ting false car leasing agreements with information he had access to as managing director of car dealership. He was also alleged to have defrauded banks and individuals of $35,800 by enter- ing into loan agreements that he did not intend to pay and by using collateral that he did not own. Extradition judge found evidence was suffi cient to justify fugitive's committal for fraud over $5,000. Appeal dismissed. Available evidence certifi ed in Records of the Case was suf- fi cient to justify fugitive's com- mittal. Contrary to fugitive's submission there was suffi cient evidence of fugitive's conduct to support inference that he was person who created false documents or who entered into fraudulent transactions with in- jured parties. Judge, therefore, did not err in ordering fugitive's committal. Republic (July of Hungary 26, 2011, Ont. v. Toth C.A., Laskin, Rosenberg and Kara- katsanis JJ.A., File No. C52445; C53192) Decision at 96 W.C.B. (2d) 24 affi rmed. 96 W.C.B. (2d) 23 (14 pp.). NEW TRIAL Trial judge misapprehended evidence that pertained to accused's impairment Appeal by accused from his con- viction of impaired driving. Ac- cused drove motor vehicle and he tried to pull over and stop on road shoulder to urinate. His ve- hicle slid on gravel shoulder and ended up in a ditch. Accused claimed that, once accident oc- curred, he abandoned any in- tention to drive home. When police arrived he was phoning his wife to pick him up. Offi cer concluded that accused was im- paired because he had hard time producing his documentation, offi cer noticed strong odour of alcohol on his breath and ac- cused was unsteady on his feet. Accused testifi ed he was deaf in one ear and this aff ected his equilibrium. Appeal allowed. Trial judge misapprehended evi- dence that pertained to accused's impairment. Particularly she misapprehended several pieces of circumstantial evidence in drawing the conclusion that all of circumstantial evidence dem- onstrated impairment beyond reasonable doubt. Such misap- prehensions constituted miscar- riage of justice that mandated a new trial. R. v. Haas (July 25, 2011, Ont. S.C.J., Kennedy J., File No. 94- 2010) 96 W.C.B. (2d) 4 (12 pp.). Arrest LEGALITY Accused clearly lying about how he knew drug user and about contents of pockets Accused charged with posses- sion of cocaine for purpose of traffi cking and possession of proceeds of crime. Accused ap- plied to exclude evidence based on breach of s. 9 of Canadian Charter of Rights and Free- doms. Offi cers saw known drug user enter accused's vehicle, which drove with no apparent destination before stopping on side of road. Offi cers believed that drug transaction had oc- curred. As offi cers approached vehicle to speak to occupants, drug user quickened his pace to leave scene. Accused told offi cer that he knew drug user from high school, although there was obvious 20 year age diff erence. Offi cer noticed large bulges in both of accused's front pants pockets and that accused be- came increasingly nervous. Of- fi cer concluded that he had rea- sonable grounds to believe that accused was in possession of il- legal drugs and arrested him for possession of narcotic. Accused argued his arrest was arbitrary. Application dismissed. Offi cer's observations, accused's utter- ances and inferences that could reasonably be drawn from them were suffi cient, in accumulation with grounds for detention, to supply reasonable grounds for arrest. Accused was clearly ly- ing about how he knew drug user and about contents of his pockets. Reasonable inference to be drawn that accused's re- lationship with drug user was illicit and that he did not want to reveal contents of his pockets. Even if breach had been found evidence would have been ad- mitted. R. v. Ross (July 27, 2011, Ont. S.C.J., Low J., File No. 08-FD- 000754-0000) 96 W.C.B. (2d) 15 (12 pp.). Breathalyzer REFUSAL TO PROVIDE SAMPLE Accused asked for further chances CASELAW which raised reasonable doubt as to whether she was faking Accused was charged with refus- ing a breathalyzer after she at- tempted to blow approximately 20 times but could not blow more than three to four seconds which was not suffi cient to reg- ister a reading. Accused blew in a similar manner when police asked her to blow into a diff er- ent instrument. Police offi cers testifi ed that she was puffi ng her cheeks, she was not blowing at all, she was blowing for too short a time and she was able to provide a sample into screening device. Police also stated that accused was otherwise gener- ally co-operative, was not being cute or sassy or insolent and was generally respectful of them and did not give them a hard time but for her failure to provide a sample that was long enough in order to have the analysis of the breath sample. Crown in- dicated that accused was prob- ably faking. Accused found not guilty. Court accepted testi- mony of police but noted that accused was consistent with her inconsistency, even when blow- ing into a separate instrument. Court noted that there was no evidence off ered as to what was minimum period of time that a constant breath sample was re- quired before it was suitable for analysis, so it could not be said how much longer she needed to go before she would have been safe. Court noted it was also signifi cant that accused consis- tently asked for further chances which raised a reasonable doubt as to whether or not she was faking. R. v. Tahlan (June 14, 2011, Ont. C.J., Schwarzl J., File No. 10-6452) 96 W.C.B. (2d) 11 (17 pp.). ONTARIO CIVIL CASES Contracts INTERPRETATION Not consistent with agreement to allow defendants to pocket tax credits or refunds Action by plaintiff s for reim- bursement of tax credits. Plain- tiff s sold business to defendants through share purchase agree- ment. Plaintiff s sought reim- bursement of credits remitted to company for period before sale when plaintiff s still owned its shares. Action allowed. Agree- ment obliged defendant to re- imburse the plaintiff s for tax credits or refunds. Reference in s. 3.3 in agreement to "all taxes payable be they federal or pro- vincial, in connection with the within transaction, including GST, Retail Sales Tax, Source Deductions, Income Tax" must be read as net taxes, that is, net of tax refunds or tax credits, and words of s. 6.1(i) must be inter- preted similarly. It was not con- sistent with agreement to allow defendants to pocket tax credits or refunds. Modugno v. Cira (June 22, 2011, Ont. S.C.J., Lauwers J., File No. CV-09-096712-SR) 204 A.C.W.S. (3d) 788 (10 pp.). www.lawtimesnews.com Starting from $62.50 per month Contempt Of Court PROOF OF OFFENCE Mother never purposely frustrated access Motion by father for fi nding mother in contempt of access order. Parties had two daughters, aged 15 and 19. Until father was charged with harassment and sexual assault in 2009, his ac- cess was frequent and positive. Father was eventually convict- ed of harassment and received conditional discharge. Father argued mother had thwarted his access ever since. Motion dismissed. Th is was not a case of parental alienation. Problems with access were due to criminal charges, distance between par- ties, weather and father's own temper. Mother never purposely frustrated access. Father was to contact older daughter directly to arrange access. Father was to have access to younger daughter on alternate weekends and half the holidays. Karounos v. Karounos (July 5, 2011, Ont. S.C.J., Desotti J., File No. 3207/04) 204 A.C.W.S. (3d) 783 (15 pp.). Education TEACHERS Expert evidence relevant and properly admitted Appeal by teacher from re- spondent's fi nding he was inca- pacitated by mental or physical condition and unfi t to carry on as teacher. Appellant argued decision was wrong because committee relied on expert evi- PAGE 15 dence of psychiatrist who did not actually assess him and that he was denied procedural fair- ness. Appellant had worked as high school teacher since 1997. In 2005, appellant began mak- ing allegations that students at his school were being abused. However, appellant refused to provide offi cials with names of students or further information. Board suspended appellant for breaching his legal obligation to report abuse. Respondent conducted investigation and provided notice of hearing. Ap- pointment was set for psychi- atric assessment but appellant failed to attend. Appellant also did not attend hearing, though his counsel initially attended. Forensic psychiatrist reviewed evidence and opined appellant was suff ering from delusional disorder. Appellant provided no defence and neither he nor counsel attended remain- ing hearing dates after expert evidence was given. Appellant also failed to make submissions on appropriate penalty. Appeal dismissed. Expert evidence was relevant and properly admitted. Respondent also relied on fac- tual evidence in reaching deci- sion, which was reasonable on all grounds. Appellant chose not to participate or attend, so could not now complain he had been denied procedural fairness. Ellis v. Ontario College of Teach- ers (June 30, 2011, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Th omas and Ferrier JJ., File No. DC-10-00000558- 0000) 204 A.C.W.S. (3d) 810 (9 pp.). When More is Too Much 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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