Law Times

Law TiMes • May 10, 2010 CLASS ACTIONS Counsel fee of $14.5 million was approved Matter was certifi ed as class ac- tion. Motion was brought for variation of certifi cation order to expand class defi nition. Re- quest was made for court ap- proval of settlement and for one of representative plaintiff s to be paid $3,000. Request was made for approval of class counsel fee of $27.5 million. Defendants consented to relief sought in motion. Amend- ment of class defi nition, set- tlement and $3,000 payment were approved. Counsel fee of $14.5 million was approved inclusive of applicable taxes and disbursements. $3,000 was to be paid out of class counsel fee. Smith Estate v. National Mon- ey Mart Co. (Mar. 3, 2010, Ont. S.C.J., Perell J., File No. CV-08-363659-00CP) 187 A.C.W.S. (3d) 335 (28 pp.). Conflict Of Laws FOREIGN JUDGMENTS Louisiana judgments were registered in Ontario Applicants sought recognition and enforcement in Ontario of three Louisiana judgments by Bankruptcy Court. Re- spondents argued Bankruptcy Court was not court of compe- tent jurisdiction for purposes of proceedings giving rise to judgments. Respondents de- fended and asserted claims and thus attorned to jurisdiction of Bankruptcy Court. Th ere was real and substantial con- nections between respondents, subject matter of action and courts in Louisiana. Judgments were rendered by court of com- petent jurisdiction and were fi - nal and conclusive. Judgments were registered in Ontario. Stern v. Solehdin (Mar. 2, 2010, Ont. S.C.J., Leitch J., File No. 62519; 62554) 187 A.C.W.S. (3d) 383 (20 pp.). Police LIABILITY IN TORT Plaintiff's arrest and detention for investigative purposes was lawful Police Offi cers in emergen- cy response dress pointing weapons at plaintiff arrested plaintiff in connection with double homicide. Plaintiff was in underwear and TV news crew fi lmed arrest. Six offi cers searched plaintiff 's residence. Arrest was in newspapers and was on TV. Plaintiff lost fran- chise for store, business failed and landlord evicted plaintiff . Plaintiff 's condominium was sold under power of sale and plaintiff had to pay shortfall. Plaintiff brought action for damages in negligence, false arrest and unlawful confi ne- ment. Plaintiff sought aggra- vated and punitive damages. Action was dismissed. Plain- tiff 's arrest and detention for investigative purposes was lawful and police did not vio- late plaintiff 's rights under s. 9 of Canadian Charter of Rights and Freedoms. Police were not negligent in carrying out duties. Gigliotti v. Fantino (Mar. 4, 2010, Ont. S.C.J., Jenkins J., File No. 29263) 187 A.C.W.S. (3d) 565 (15 pp.). Insurance POLICY LIMITS Damage was not result of "occurrence" or "accident" Application by insurer for or- der that it was not obligated to provide defence to respondent. Insurer provided commercial general liability policy of insur- ance to respondent. Respondent delivered manufactured com- ponents to company. Company was not happy with product, and commenced action against respondent seeking damages for breach of contract, breach of warranty, negligent misrep- resentation and negligence. Application granted. Th ere was no duty on insurer to defend. Company clearly alleged losses occurred as result of defective design or manufacture. Damage was not result of "occurrence" or "accident". Aviva Insurance Co. of Can- ada v. Regional Hose Toronto Ltd. (Feb. 23, 2010, Ont. S.C.J., Gordon J., File No. C-1060/09) 187 A.C.W.S. (3d) 513 (17 pp.). Wills And Estates ESTATE ADMINISTRATION Not appropriate that costs be paid for out of estate Deceased died intestate. Liti- gation ensued between de- ceased's common-law partner, deceased's ex-wife, and de- ceased's testator sister. Parties signed minutes of settlement, which were made into court order. Amount available for di- vision between deceased's chil- dren was $347,000. Testator amassed costs of approximately $30,000, and sought for costs to be paid from estate. Ex-wife's costs also totalled approximate- ly $30,000, and ex-wife sought for trustee to pay her costs. It was not appropriate that costs be paid for out of estate, with exception of certain of costs incurred by trustee. Parties in- curred litigation costs that far outweighed any potential ben- efi t that could have accrued to children. Viau v. Kozicki (Mar. 23, 2010, Ont. S.C.J., Gordon J., File No. E5552/09) 187 A.C.W.S. (3d) 578 (13 pp.). ONTARIO CRIMINAL CASES Extraordinary Remedies MANDAMUS Order was granted directing justice to enter convictions for three offence notices City brought application seeking order of mandamus with certiorari in aid with respect to quashing of three certifi cates of off ence. Justice of peace quashed certifi cates on basis they were not signed. CASELAW Certifi cates related to three individuals charged with dif- ferent provincial infractions. Order in nature of certiorari granted quashing three deci- sions, order in nature of man- damus granted directing jus- tice to enter convictions for three off ence notices. City had standing to bring application because under memorandum of General understanding transferred Attorney relevant functions to city. Superior Court of Justice was appro- priate forum in which to seek prerogative remedy for action for which appeal was inappro- priate. Electronic signature of police offi cer affi xed to certifi - cate of off ence was presumed to be correctly affi xed in ac- cordance with offi cer's offi cial duties pursuant to Provincial Off ences Act (Ont.) and its regulations. London (City) v. Caza (Mar. 12, 2010, Ont. S.C.J., Mor- issette J., File No. 10627) 87 W.C.B. (2d) 183 (5 pp.). Evidence HEARSAY Hearsay evidence was admissible at murder trial Application by both accused, who were charged with mur- der and Crown to introduce separate statements that were made by deceased to his spouse prior to his death. Evidence violated hearsay rule but could be admitted under principled approach to rule if it was necessary and reliable. Both applications allowed. Necessity requirement was satisfi ed because victim was dead. Evidence that Crown wished to introduce was re- liable as it was made in cir- cumstances where there was no reason for deceased to lie. It was amply corroborated by other evidence. Evidence that accused wished to introduce, that deceased told his wife that accused deserved beating, was also admitted and accused was permitted to cross-examine wife about that statement. R. v. Docherty (Jan. 28, 2010, Ont. S.C.J., Wein J., File No. CR6/09) 87 W.C.B. (2d) 147 (6 pp.). OPINION EVIDENCE Drug recognition experts had to be qualified as expert witnesses Application by Crown to in- troduce evidence of drug rec- ognition expert on issue of drug impairment. Two accused were charged with operating motor vehicle while their abil- ity to do so was impaired by drugs. Peace offi cer, who rea- sonably suspected that person had drug in their body and who within preceding three hours operated vehicle, could demand that person perform physical co-ordination tests to determine whether grounds existed for examination and evaluation by drug recogni- tion expert. If grounds existed offi cer could then demand that person submit to evalu- ation. If evaluation provided reasonable grounds that per- son's ability to operate mo- www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM tor vehicle was impaired by drugs, evaluating offi cer could demand that person was to provide saliva, urine or blood sample. Evaluating offi cer was peace offi cer who was quali- fi ed by regulation to conduct evaluations under s. 254(3.1) of Criminal Code. Th at offi cer had to be certifi ed drug rec- ognition expert who was ac- credited by International As- sociation of Chiefs of Police. Crown claimed that drug rec- ognition expert did not have to be qualifi ed as expert witness since expert was analogous to qualifi ed technician for taking breath samples. Court decided that the evaluating offi cer had to establish his or her qualifi - cations as set out in applicable regulation. Evaluating offi - cer could testify as to evalu- ation conducted pursuant to s. 254(3.1). Evaluating offi cer could testify that demand was made pursuant to s. 254(3.4) of Code. Any opinion by eval- uating offi cer as to impairment by drug, other than for pur- pose of making demand pur- suant to s. 254(3.4) would not carry weight of expert opinion unless criteria for admission of expert evidence were satisfi ed. It was incorrect to analogize status of drug recognition ex- pert to that of qualifi ed techni- cian. Rather, drug recognition experts had to be qualifi ed as expert witnesses. R. v. Wakewich (Mar. 1, 2010, Ont. C.J., DiGiuseppe J., File No. 091844; 085535) 87 W.C.B. (2d) 158 (6 pp.). Trial PRESENCE OF ACCUSED Accused's application for permission to sit outside prisoner's dock allowed in part Application by accused, who was charged with murder, for order that would permit him to sit outside prisoner's dock. He wanted to sit at table, near his counsel, to accommodate communicating with her and to avoid stigma that was attached to sitting in dock. Th ere were no security issues in this case. Application allowed in part. Trial would be lengthy and it would be diffi cult for accused to sit on bench in dock for ex- tended period without moving. It was necessary for him not to move because bench sometimes squeaked distractingly when person moved. Jury chairs were altered to allow appropriate sightlines and small table was set up outside dock to permit ac- cused to make notes on proper chair while he was in control of attending offi cers. As trial pro- gressed this arrangement posed some diffi culty with sightlines for jurors, with viewing of large exhibits and slides and crowd- ing of one row in back of jury box. It was also discovered that uncomfortable bench in dock could be removed such that comfortable chair and writing table could be placed inside. R. v. Docherty (Mar. 16, 2010, Ont. S.C.J., Wein J., File No. CR6/09) 87 W.C.B. (2d) 222 (8 pp.). LT PAGE 15 Starting from $62.50 per month More value for your money! 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