Law Times

Law TiMes • March 8, 2010 child in custody dispute. Child would benefi t from structure and support provided by appli- cant. Respondent was granted access. Anamur v. Anamur (Dec. 24, 2009, Ont. S.C.J., Hourigan J., File No. 2448/09) 183 A.C.W.S. (3d) 969 (11 pp.). Equity REMEDIES Requirements for granting of Norwich order not satisfied Further to investigation of pos- sible consumer fraud Ministry of Consumer Services laid charges against company related to A. under Consumer Protection Act, 2002 (Ont.), in respect of one of three transactions. A was charged with violation of Crim- inal Code (Can.), under second transaction. Ministry continued investigation into third transac- tion. In compliance with earlier court order two fi nancial insti- tutions produced to Attorney General fi nancial documents relating to accounts of A., re- lated persons and corporations. Contemplating application for forfeiture of money under Civil Remedies Act, 2001 (Ont.), At- torney General brought motion for Norwich order to require 11 other fi nancial institutions to produce documents Attorney General would use in locat- ing property of A. and related parties. Motion dismissed. Re- quirements for granting of ex- traordinary remedy of Norwich order not satisfi ed. Tracing lo- cation of proceeds of unlawful activity was proper purpose for Norwich order. Motions judge was also satisfi ed evidence of Attorney General was suffi cient to raise valid, bona fi de or rea- sonable claim. Attorney Gen- eral however failed to establish disclosure sought was necessary measure. Evidence did not dem- onstrate how disclosure from 11 fi nancial institutions might assist in continuing exercise of tracing moneys received by A. under transactions in question. Noting suggestion in affi davits fi led by Attorney General that disclosure would assist in iden- tifying other victims of crime judge cautioned use of Norwich orders for purposes of criminal investigation. Availability of other production devices and duration of confi dentiality provisions sought by Attorney General also militated against grant of Norwich order in case. Ontario (Attorney General) v. Two Financial Institutions (Jan. 4, 2010, Ont. S.C.J., Brown J., File No. CV-09-380055) 183 A.C.W.S. (3d) 1016 (11 pp.). Professions BARRISTERS AND SOLICITORS Applicant failed to establish existence of special circumstances to justify assessment of paid bills Dispute arose between share- holder group with signifi cant interest in applicant company and incumbent management. President and four other di- rectors of applicant retained L S LLP law fi rm to represent them in oppression action commenced by group and to bring counter-suit. Applicant retained fi rms of V & Co. and M T LLP to act as special litiga- tion counsel and corporate so- licitor respectively in respect of special meeting of shareholders called to remove two of direc- tors. Firms rendered accounts to applicant which latter paid without complaint. Incumbent management lost and were re- placed. New management of applicant brought application to secure assessment of paid accounts under Solicitors Act (Ont.). Application dismissed. All but one of bills for which ap- plicant sought assessment were delivered more than 12 months before applicant served solici- tors with application. Applicant failed to establish existence of special circumstances to justify assessment of paid bills of so- licitors. Th ere was nothing out of ordinary about retention of solicitors in case given multiple proceedings and attendances involved in hotly contested cor- porate litigation. Th ere was no merit in applicant's argument that amounts paid to solicitors were disproportionate no evidence was placed before judge about own legal since costs incurred by group. Both sides were sophisticated business groups who could have reason- ably expected that litigation us- ing Toronto counsel would gen- erate large legal bills. Echo Energy Canada Inc. v. Lenczner Slaght Royce Smith Griffi n LLP (Jan. 7, 2010, Ont. S.C.J., Brown J., File No. CV-09-386193) 183 A.C.W.S. (3d) 1139 (12 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT WITH WEAPON Section 37 of Criminal Code not available as defence Accused threw beer bottle at complainant. Complainant testifi ed he did not signal at- tack on accused and he was at- tacked without cause. Accused testifi ed he felt that complain- ant was about to attack him, so he initiated pre-emptive action against him. Accused found guilty. Accused provoked com- plainant when he came into bar. Complainant invited ac- cused to fi ght. Complainant did not stand up to challenge or threaten accused and did not do anything physical to advance challenge. In throwing beer bottle at complainant, ac- cused used more force than was necessary to prevent complain- ant from assaulting him. By throwing beer bottle accused wilfully infl icted injury that CASELAW was excessive having regard to nature of assault that he was trying to prevent. Section 37 of Criminal Code was not avail- able as defence. Crown proved case against accused beyond reasonable doubt. R. v. Duranovic (Dec. 10, 2009, Ont. C.J., Bovard J., File No. 5469) 86 W.C.B. (2d) 105 (12 pp.). Sentence DRUG OFFENCES Sentencing judge ignored principle that conditional sentences rare for large residential marijuana grow operations Crown appeal from imposition of twelve month conditional sentence for production of mari- juana. Circumstances of off ence involved substantial residen- tial marijuana grow operation with signifi cant hydro bypass. Sentencing judge erred in prin- ciple by ignoring principle that conditional sentences are rare for large residential marijuana grow operations. Sentencing judge erred by refusing to take specifi c and general deterrence into account in imposing sen- tence. Sentencing judge erred in principle by basing reasons for sentence on personal views and observations about practi- cal deterrent eff ect of custodial sentences on grow operations. Sentencing judge's reasons en- titled to no deference. Sentence demonstrably unfi t but interests of justice not served by impos- ing custodial sentence where off ender has served entire con- ditional sentence. Crown appli- cation for leave to appeal sen- tence granted and appeal from sentence dismissed. R. v. Song (Dec. 16, 2009, Ont. C.A., Moldaver, Simmons and Blair JJ.A., File No. C49621) 86 W.C.B. (2d) 177 (9 pp.). Trial CHARGE TO JURY Jury could not have been under any misapprehension about use it could make of evidence Accused appealed conviction. Accused argued jury instruc- tions given by trial judge about victim's references in his 911 call and police statement made shortly after home invasion de- scribing accented speech of in- vaders were incorrect. Accused argued trial judge should have told jury that diff erence be- tween described trait of alleged perpetrator and known trait of accused could undermine other evidence supportive of guilt. Accused argued that trial judge erred in failing to bring to jury's attention evidence concerning continuity. Ap- peal dismissed. Trial judge told jury that they could take 911 call and statement as evidence that speakers were of diff er- ent ethnic origin than persons charged. Jury could not have been under any misapprehen- sion about use they could make of evidence in determining ad- equacy of prosecutor's proof www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM of guilt. Issue regarding traits of perpetrators was fairly put to jury and left for their deter- mination. Trial judge carefully and fairly reviewed for jury evidence relating to continuity issue and there was no need to go further. R. v. Harris (Jan. 12, 2010, Ont. C.A., Winkler C.J.O., Goudge and Watt JJ.A., File No. C50160; C49648) 86 W.C.B. (2d) 194 (3 pp.). FEDERAL COURT OF APPEAL Employment Insurance DECISIONS OF UMPIRE Umpire erred by interpreting s. 90(1)(b) and 122 of Employment Insurance Act (Can.) as applying to case Commission reallocated unde- clared earnings which resulted in overpayment. Commission imposed penalty for knowingly making false and misleading statements regarding earnings when receiving benefi ts. No- tice of violation of s. 7.1 of Employment Insurance Act (Can.), was issued for provid- ing false information to com- mission. Board of Referees al- lowed appeal. Umpire allowed appeal. Application for judicial review was allowed. Umpire erred in law by interpreting s. PaGe 15 90(1)(b) and 122 of Act as ap- plying to case. Board of Refer- ees had jurisdiction to decide whether worker was in receipt of earnings for services ren- dered in specifi ed weeks. McLaughlin v. Canada (At- torney General) (Dec. 8, 2009, F.C.A., Sexton, Evans and Sharlow JJ.A., File No. A-43- 09) 183 A.C.W.S. (3d) 1015 (14 pp.). Social Welfare CANADA PENSION PLAN Appellant chose wrong procedure and wrong court Crown's motion to strike notic- es of appeal was allowed. Judge concluded Tax Court was with- out jurisdiction to entertain appeals. Appeal was dismissed. Th ere were no valid founda- tions for allegation of reasonable apprehension of bias. Section 26.1(1)(e) of Canada Pension Plan was not interpreted so broadly as to include issues of validity of statutory provisions by which appellant was obliged to pay Canada Pension Plan contributions and contribu- tion rate. Section 26 referred to challenge to correctness of arithmetic result of calculation of contribution payable. Appel- lant chose wrong procedure and wrong court. Davitt v. M.N.R. (Dec. 8, 2009, F.C.A., Sexton, Evans and Sharlow JJ.A., File No. A-525-08) 183 A.C.W.S. (3d) 899 (8 pp.). LT Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). 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