Law Times

Law Times • November 29, 2010 to jeopardize investigation or have someone tipped off to destroy evidence. Police made no eff ort to obtain telewarrant or expedite procedure. War- rant subsequently obtained. Evidence excluded. Court ex- cluded evidence even though drugs would have inevitably been found because of delib- erate and continued denial of accused's right to counsel. Intimate temporal connection found by continuing viola- tion of Charter breach when cocaine was discovered in ac- cused's vehicle. R. v. Perry (Oct. 6, 2010, Ont. C.J., Block J., File No. 2811 998 08 29225 00) 90 W.C.B. (2d) 372 (8 pp.). Defences SELF-DEFENCE Evidence overwhelming that accused was aggressor throughout incident Accused charged with at- tempted murder, assault caus- ing bodily harm, assault with knife and possession of knife for purpose of committing of- fence arising out of incident that occurred at restaurant. Accused never disputed that during course of his interac- tion with complainant he took hunting knife he had brought with him out of his pocket and proceeded to use it to in- fl ict four separate wounds to his head and body. Accused, often within confl icting tes- timonial accounts, asserted that he used knife to protect himself when complainant unsuccessfully attempted to strike him. Self-defence not made out, accused guilty of all charges except attempted murder, but convicted of in- cluded off ence of aggravated assault by wounding. Reliable evidence established beyond reasonable doubt that accused had not acted in self-defence. Evidence was overwhelming that accused had been aggres- sor throughout incident and that complainant did noth- ing capable of justifying any violence by accused and that use of weapon, with which ac- cused had earlier armed him- self, was completely unrea- sonable and disproportionate to any grievance accused may have had against complainant or to anything done by him at relevant time. Credible evi- dence accepted by court was that accused, motivated by anger over curses and insults concerning his wife and fami- ly made previous day by com- plainant's brother. Accused had taken knife with him to conciliatory meeting with complainant and proceeded to attack victim without any provocation. Accused was not convicted of attempted mur- der because there was reason- able doubt on issue of his in- tent to kill. R. v. Shafi k (Oct. 4, 2010, Ont. C.J., Fairgrieve J.) 90 W.C.B. (2d) 381 (8 pp.). Sentence DRUG OFFENCES As police officer, accused knew that possession of about pound of marijuana more than trifling and completely antithetical to oath of office Accused received global sen- tence of fi ve years and eight months' imprisonment for attempting to possess for purpose of traffi cking, theft, breach of trust by offi cial in connection with duties of of- fi ce and possession of mari- juana. Accused police offi cer took packages of what he believed to be cocaine from cargo truck that had been stopped during police inves- tigation. Accused stole MP3 players from seized vehicle before they could be invento- ried. Police found marijuana during search of accused's res- idence. Accused was 43-years old and had been police offi - cer for 14 years. Accused had no police discipline history or prior criminal record. Ten prosecutions were stayed or withdrawn on basis of there being no reasonable prospect of conviction given serious crimes with which accused was charged. Had packages not been part of controlled delivery, value of cocaine at- tempted to be possessed was signifi cant. As police offi cer, accused knew that posses- sion of about pound of mari- juana was more than trifl ing and completely antithetical to oath of his offi ce. Accused sentenced to four years' im- prisonment for attempting to possess for purpose of traf- fi cking and breach of trust, 18 months consecutive impris- onment for theft and breach of trust and two months con- secutive imprisonment for possession of marijuana. R. v. Cook (Oct. 15, 2010, Ont. S.C.J., Hill J., File No. CRIMJ(P)2171/07) 90 W.C.B. (2d) 414 (26 pp.). ONTARIO CIVIL CASES Contracts MISREPRESENTATION Plaintiff 's assertions not proven on preponderance of evidence Mother was in ill health. Plain- tiff and husband moved in with mother. Plaintiff claimed mother promised plaintiff and husband would have mother's house if plaintiff and husband took care of mother. Plaintiff claimed mother later prom- ised to leave plaintiff property in Lakefi eld instead of resi- dence. Plaintiff brought ac- tion against plaintiff 's mother for damages for breach of contract or alternatively for unjust enrichment or negli- gent misrepresentation and for punitive damages. Plaintiff also sued as executrix of estate of plaintiff 's husband. Action was dismissed. Assertions were not proven on preponderance of evidence. Plaintiff 's asser- tions did not fi t with conduct of parties. Defendant did not promise to leave plain- tiff and husband residence or CASELAW Lakefi eld property. Plaintiff and husband did not suff er deprivation corresponding to mother's benefi t. Plaintiff and husband lived rent-free for two years. Defendant did nothing to make defendant li- able for psychological injury claimed. Counterclaim for accounting of money plaintiff managed for defendant for two years was proven to ex- tent of $20,709. Schneider v. Kastenmacher (Sep. 29, 2010, Ont. S.C.J., Ramsay J., File No. 07- 30215) 193 A.C.W.S. (3d) 447 (8 pp.). Family Law CUSTODY Court had jurisdiction over custody of children Parties and children were Canadian citizens. Parties re- tained Guyanese citizenship. Respondent brought motion to set aside judgment which was made in chambers in uncontested trial. Respon- dent was noted in default. Judgment gave applicant sole custody of children and re- spondent supervised access. Respondent argued judg- ment was obtained by fraud. Respondent argued Ontario court did not have jurisdic- tion and children should be returned to Guyana pending further order by Guyanese court. Children were not ha- bitually resident or physically present in Canada when pro- ceedings were commenced. It was agreed judgment should be set aside. Th ere were prob- lems with applicant's affi da- vits of service. Respondent off ered reasonable explana- tion for default in responding to original application and expressed intention to par- ticipate in proceeding. Th ere were problems with disclosure by applicant with respect to Guyanese proceedings. Court had jurisdiction over cus- tody of children in circum- stances. Application could proceed. In interim primary residence of children was to be in Ontario with applicant pending further order by On- tario court. Guyanese court refused jurisdiction over cus- tody of children by reason of children's citizenship, earlier residence in Canada and view that Canadian courts would be in better position to deter- mine issue of custody. Parens patriae jurisdiction could and should be invoked. Ramjeet v. Ramjeet (Sep. 23, 2010, Ont. S.C.J., van Rensburg J., File No. FS-09- 02905-00) 193 A.C.W.S. (3d) 609 (18 pp.). Torts CONSPIRACY Trial judge erred in dismissing claim against defendant whom trial judge found to be co-conspirator ORC and Crown sued num- ber of GT controlled corpo- rations, certain of his busi- ness partners, and several former employees of ORC. www.lawtimesnews.com Starting from $62.50 per month Claims were far-reaching, in- volving allegations of fraud, conspiracy, bribery, breach of fi duciary duty and bid rig- ging in over 40 transactions involving ORC and one or more of defendants. Lengthy trial focused on seven trans- actions. Trial judge found no liability on two of transac- tions. On third transaction, trial judge allowed counter- claim and awarded damages to one of G's corporations in amount of $50,000. ORC was successful on remaining four transactions. On fi rst ap- peal, trial judge did not err in fi nding that appellants did not perform work for which they were paid by ORC with respect to M/P transaction and trial judge did not err in failing to order reference to determine quantum of dam- ages suff ered by appellants as result of ORC's failure to close sale of property to one of appellants. Second appeal involved three transactions BT, B and KH. With respect to BT transaction, trial judge did not err in fi nding that ap- pellants had been unjustly en- riched as result of price abate- ment of $300,000 agreed to by ORC prior to closing and in ordering appellants to dis- gorge profi t they made on resale of property less than one year later. Regarding B transaction, trial judge did not err in fi nding that two abatements to price they paid for purchase of B property unjustly enriched appellants. Abatements were not prod- PAGE 15 uct of bona fi de negotiations. As for KH transaction, trial judge erred in awarding rem- edy of disgorgement of prof- its on this property. Th ere was no proven breach of fi duciary duty by any ORC employee or conspiracy involving ORC employees and appellants. Further, as there were no damages suff ered by ORC, there was no fraud proven against appellants, acting on their own, in submission of two bids. Th erefore, remedy of disgorgement could not be imposed in circumstances of this transaction. Finally, trial judge erred in dismissing claim against F. Trial judge found F was co-conspirator with G to injure ORC. Find- ings compel fi nding of li- ability against F in respect of $300,000 abatement in pur- chase price. As result, judg- ment was varied to provide that F be jointly and sever- ally liable with defendants in respect of $300,000. As to P, trial judge found that he was in confl ict of interest but did not fi nd that he was in breach of any fi duciary duty or party to any conspiracy. In these circumstances, trial judge made no error in dismissing claim against P. Ontario Realty Corp. v. P. Ga- briele & Sons Ltd. (Oct. 5, 2010, Ont. C.A., Doherty, Feldman and Rouleau JJ.A., File No. C50050; C50052) Decision at 173 A.C.W.S. (3d) 1251 was reversed in part. 193 A.C.W.S. (3d) 673 (12 pp.). LT 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. 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