Law Times

Law timeS • September 12, 2011 er was asleep at time. Mother's body was found to have high blood alcohol content, and it was determined that she had consumed both cocaine and marijuana at earlier time. Prov- incial Advocate and deceased's family's application to expand scope of inquest to examine services provided to family was dismissed. Provincial Advocate's request to call certain witnesses was refused. Motion dismissed. Test for stay was not met. Ju- dicial reviews did not raise ser- ious issue. No irreparable harm would result if stay was denied. Balance of convenience was in favour of completing inquest. Ontario (Provincial Advocate for Children and Youth) v. Ontario (Coroner) (June 3, 2011, Ont. S.C.J. (Div. Ct.), Lederer J., File No. 255/11; 257/11) 203 A.C.W.S. (3d) 64 (13 pp.). Equity ESTOPPEL NHL estopped from relying on specified date as date on which exclusive negotiating period ended Labatt had sponsorship rights with NHL. Renewal clause pro- vided Labatt with exclusive per- iod to negotiate. Labatt claimed Labatt and NHL reached agree- ment within exclusive period. NHL argued parties did not reach agreement. NHL signed deal with Molson for seven years under which Molson paid substantially more for Canadian sponsorship rights than Labatt and NHL agreed to. NHL in- tentionally and unequivocally waived indefi nitely specifi ed date time-limit for exclusive negotiating period. Waiver con- tinued to later specifi ed date. NHL was estopped from rely- ing on specifi ed date as date on which exclusive negotiating period ended. Parties reached agreement on terms of renewal of agreement. Indefi nite exten- sion of exclusive negotiating period by NHL to enable ne- gotiated agreement precluded NHL from negotiating with Molson. Th ere was no obliga- tion to negotiate long-form agreement. NHL and Molson were enjoined from imple- menting terms of agreement to extent agreement includes ex- clusive sponsorship and related rights agreed upon by NHL and Labatt. Labatt Brewing Co. v. NHL Enterprises Canada, L.P. (June 3, 2011, Ont. S.C.J. (Comm. List), Newbould J., File No. CV-11-9122-00CL) 203 A.C.W.S. (3d) 53 (37 pp.). Professions LAND SURVEYORS Surveyors' determination of location of boundary was reasonable even though it turned out to be incorrect Action by property owners against land surveyors for dam- ages for negligence. Surveyors had conducted survey on behalf of owner's former neighbour before she sold her property to current neighbours. Owners and current neighbours did not have any disputes about location of boundary between their properties until unrelated severance matter arose. Owners retained their own surveyor who determined diff erent loca- tion of boundary than former neighbour's surveyors. Owners successfully brought application under Boundaries Act (Ont.), for ruling that boundary was located where their surveyor had determined it to be. Ac- tion dismissed. Surveyors exer- cised standard of care expected of reasonable and prudent land surveyors. Surveyors' deter- mination of location of bound- ary was reasonable even though it turned out to be incorrect. Same determination had been made by two prior surveyors at least 25 years before. Surveyors' determined boundary was cur- rently marked by fence and was supported by evidence of peace- ful occupation of laneway. Sur- veyors considered all evidence on ground before completing their survey. Failure to interview owners was not material since surveyors took their use of prop- erty into account. Surveyors were reasonable in concluding recent fence was not evidence of boundary. In any event, owners failed to establish any damages. Chisholm v. Watson (June 8, 2011, Ont. S.C.J., Johnston J., File No. CV09-0105-00) 203 A.C.W.S. (3d) 193 (32 pp.). ONTARIO CRIMINAL CASES Charter Of Rights EQUALITY RIGHTS Law did not operate in way that undermined accused's human dignity Accused appealed conviction for failing to wear approved helmet while operating motorcycle, contrary to s. 104(1) of High- way Traffi c Act (Ont.) ("HTA"). Accused was practicing Sikh and did not dispute that he operated motorcycle on highway without helmet. Trial judge concluded that helmets markedly reduced deaths and head injuries experi- enced by motorcycle riders. Trial judge found nothing in purpose or eff ect of legislation which was in confl ict with s. 15 of Charter. Accused argued trial judge erred in failing to grant application challenging validity and Hu- man Rights Code (Ont.) com- pliance of s. 104(1) of HTA, which he alleged contravened s. 15 Charter rights. Appeal dis- missed. Rational and informed person would understand that law did not operate in way that undermined accused's hu- man dignity, that it refl ected stereotypical approach toward accused for group to which he belonged, or that such individ- uals were less worthy of recog- nition or value. No breach of s. 15(1) of Charter. R. v. Badesha (May 20, 2011, Ont. C.J., Takach J., File No. 83382604) 95 W.C.B. (2d) 122 (42 pp.). SEARCH AND SEIZURE Evidence left court with strong CASELAW impression that strip search conducted in order to humiliate accused Accused charged with impaired driving and driving "over 80". Accused was strip searched back at detachment in a room with door open which opened into cell area. Offi cers involved did not seek authorization of a supervising offi cer before search. Accused's breathalyzer results and any other evidence obtained after strip search excluded. Fact that there was no recording of process of strip search was troubling and one of offi cers denied it even took place until admitting it had after persistent questioning by defence counsel. Fact that one of offi cers found cell phone in accused's shoe was not grounds for a strip search. Evidence left court with strong impression that strip search was conducted in order to humiliate accused. R. v. McPhail (June 8, 2011, Ont. C.J., Maresca J.) 95 W.C.B. (2d) 117 (10 pp.). Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Much of evidence pointed to accused being visitor in the home Accused charged with posses- sion for purpose of traffi cking. Accused and several others were arrested during execution of search warrant. Various articles that showed accused presence in the apartment had been found including his fi ngerprints on a bag of marijuana. Not enough evidence existed to convict ac- cused beyond a reasonable doubt. Much of the evidence pointed to accused being a vis- itor in the home. Th ere are a number of other reasonable pos- sibilities beyond that accused had control of drugs. R. v. Ngo (May 12, 2011, Ont. C.J., Shamai J.) 95 W.C.B. (2d) 134 (7 pp.). Evidence IDENTITY OF ACCUSED Quality of vide was good and possible to make out person's features Accused appealed Starting from conviction for possession of stolen goods. Crown's case depended upon identifi cation of accused provid- ed in two video clips. Accused argued that video recordings were not of suffi cient quality to permit accurate identifi ca- tion to be made. Appeal dis- missed. Quality of second video was good and it was possible to make out person's features. Trial judge's conclusion that accused was person in video was not unreasonable. Trial judge had advantage of being able to com- pare person in video clip with accused's appearance in court- room. Trial judge reached his own conclusion as to identifi ca- tion and did not rely on offi cer's opinion. R. v. Abdi (June 10, 2011, Ont. C.A., Rosenberg, Juriansz and LaForme JJ.A., File No. C52469) Decision at 94 W.C.B. (2d) 834; 94 W.C.B. (2d) 881 affi rmed. 95 W.C.B. (2d) 139 (7 pp.). www.lawtimesnews.com $62.50 per month Obstructing Justice GENERAL Accused offered $3000 to complainant to drop charges Trial of accused for sexually as- saulting complainant on two occasions. Accused was also charged with wilfully attempting to obstruct justice by off ering money to the complainant so that she would not testify. As a result of this alleged indirect communication he was further charged with breach of recogni- zance. Accused and his wife and complainant and her two chil- dren lived in the same house that was owned by other. Accused admitted that he had sexual intercourse with complainant on one occasion and that they engaged in sexual touching and kissing on the second occasion but he claimed it was all consen- sual. Accused convicted of all the off ences. Complainant was cred- ible. Accused was not. Crown proved beyond reasonable doubt that accused had sexual inter- course with complainant and he sexually touched her with- out her consent. Complainant's evidence was strongly corrobor- ated by testimony of another witness. Regarding obstruction and breach charges other testi- fi ed that while she was talking to accused's wife accused asked other to talk to complainant to get her to drop the charges. He also off ered $3,000 or more for complainant to do so. R. v. Th omas (June 6, 2011, Ont. S.C.J., Spies J.) 95 W.C.B. (2d) 179 (30 pp.). page 15 SUPREME COURT OF CANADA Indictment And Information AMENDMENT Variance in date specified did not prejudice accused Accused charged with sexual interference against his daugh- ter in April or May 2002. Complainant testifying of- fence took place in summer of 2001. Accused denied off ence occurred and testifi ed he had not moved into apartment identifi ed by complainant as crime scene until September 2002. Trial judge acceding to Crown's request to amend in- formation after defence pre- sented case. Trial judge found off ence occurred as described by complainant, but after Sep- tember 2002. Court of Appeal allowing accused's appeal and ordering new trial. Crown ap- peal to S.C.C. allowed and conviction restored. Variance in date specifi ed in information and date arising from evidence did not prejudice accused as defence was based entirely on credibility. R. v. D. (S.) (Mar. 21, 2011, S.C.C., Binnie, LeBel, Des- champs, Fish, Charron, Roth- stein and Cromwell JJ., File No. 33842) Decision at 95 W.C.B. (2d) 145 reversed. Facts taken from lower court decision. 95 W.C.B. (2d) 144 (3 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. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. 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• Rights Probes
• Echlins Legacy
• Focus On Human Rights Law