Law Times

Law TiMes • March 5, 2012 loss of investment. Investments had passed through office in Ontario. Plaintiff brought action against defendants in Ontario. Defendants brought motion for Ontario court to decline jurisdiction. Motion allowed. Merely routing funds through Ontario not sufficient to establish presumption of real and substantial connection to Ontario. Alleged wrongdoing related to mismanagement of funds did not occur in Ontario. Even if presump- tion of real and substantial con- nection applied parties had so little connection to the province that presumption could easily be rebut- ted by defendants. Furthermore, other factors such as fairness weighed against Ontario assuming jurisdiction. Galaxy Dragon Ltd. v. Topwater Exclusive Fund IV LLC (Nov. 17, 2011, Ont. S.C.J., Allen J., File No. CV-10-403821) 209 A.C.W.S. (3d) 317 (10 pp.). Employment GENERAL Plaintiff 's interpretation created irrational and commercially unrea- sonable distinction Plaintiff was former executive and member of board of directors of defendant corporation. Plaintiff asserted that certain changes in membership of board of direc- tors triggered "change of control" clause in his employment con- tract thus entitling him to resign and receive substantial severance payment. Both parties brought motions for summary judgment. Motion by defendant allowed and motion by plaintiff dismissed. It made no sense that persons no lon- ger associated with corporation or no longer alive could somehow be counted when determining who fell within category of independent directors and whether change of control clause had been triggered through new board appointment. Plaintiff's interpretation created irrational and commercially unrea- sonable distinction between direc- tors appointed to fill vacancies on board and directors appointed to increase size of board to eight or more directors. Interpretation put forward by defendant was both commercially reasonable and con- sistent with underlying purpose of change of control clause, namely to protect both the corporation and the employee in times of transition. Fisher v. First Uranium Corp. (Dec. 2, 2011, Ont. S.C.J., Stinson J., File No. CV-10-414945-0000) 209 A.C.W.S. (3d) 329 (8 pp.) Family Law CHILD WELFARE Relationship not beneficial and meaningful to child Child was Crown ward. Society sought order terminating super- vised access visits between respon- dent and child. Society argued respondent failed to co-operate with society and foster parents. Motion was allowed. Respondent was focused on respondent's best interests rather than child's. Relationship between respondent and child was not beneficial and meaningful to child. Access order was no longer in best interests of child. Access order was terminated. Children's Aid Society of Ottawa v. N. (A.) (Nov. 14, 2011, Ont. S.C.J., Power J., File No. 93-FL-769) 209 A.C.W.S. (3d) 336 (29 pp.). SUPPORT Conduct of mother and new spouse did not reach level to justify striking out claims Parties had two children. One child began living with father. Father brought motion to change. Father sought to terminate obligation to pay child support for child living with father and sought custody of that child. Father sought to termi- nate child support for other child on basis other child had moved out of mother's home. Father sought child support. Child living with father brought application claim- ing child support from mother and new spouse. Mother sought for father's motion to change to be dis- missed. Mother had new spouse. Father and child living with father brought motions to strike mother and spouse's pleadings based on failure to produce ordered finan- cial documents. New spouse brought motion for order for dis- closure of financial records from father. Conduct of mother and new spouse in relation to financial dis- closure was unacceptable. Mother's explanation for inability to provide information for 2011 was not com- pelling. There was no justification for new spouse's failure to disclose many items and delay in provid- ing other items. New spouse failed to exercise due diligence in con- nection with obligation to provide proof of 2010 and 2011 income. Conduct of mother and new spouse did not reach level of conduct to justify striking out claims. Mother and new spouse made last minute efforts to provide financial infor- mation. Appropriate remedy was order for costs and another order for disclosure with strict deadlines. Additional disclosure sought by father and child was relevant and necessary to properly move pro- ceedings forward. Father was to make disclosure to new spouse of items set out. Spettigue v. Varcoe (Nov. 7, 2011, Ont. S.C.J., Chappel J., File No. F 1130/98; F 643/10) 209 A.C.W.S. (3d) 394 (28 pp.). Fiduciaries REMEDIES Son's failure to disclose costs award resulted in breach of fiduciary duty Plaintiff was union. Defendants were father and son. Father was union organizer until he retired after which time he continued to help union executive on volunteer basis. Son was both a paid union employee and a volunteer member of the executive committee. After union terminated son's employ- ment son brought wrongful dis- missal suit against union. Father was also implicated in lawsuit by way of third party claim. $57,143 from union bank accounts was used to pay for son and father's legal fees in this lawsuit. Despite fact that son and father were awarded more in costs following trial than they actually contributed towards their legal fees they never turned over any part of costs award to union. Union brought present legal proceedings against father and son for money paid by union towards father and son's legal fees in previous lawsuit. Action against father dismissed CASELAW and action against son allowed for $23,000. It was clear that constitu- tion of union was breached on sev- eral grounds by payment of these legal fees. However, the breaches were not committed by father or son but rather by other members of union executive. Since there was no contractual obligation to return funds received for costs neither son nor father committed breach of contract by retaining costs award. Son continued to work as officer for union after dismissal from paid employment, and thus had fiducia- ry duty towards union. Son's failure to disclose costs award and to avoid influencing members of execu- tive resulted in breach of fiduciary duty when payments were made to him and received by him. As father was not in fiduciary position action against him unfounded. In general damages awarded, where fiduciary breached his duty needed to put principal back in position it would have been had breach not occurred. Son responsible to reim- burse union for $23,000 which was amount paid by union on his behalf. St. Denis v. Manoni (Nov. 7, 2011, Ont. S.C.J., Ellies J., File No. 07-CV- 37827) 209 A.C.W.S. (3d) 406 (23 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Accused did not mention medical condition when given breath demand Accused appealed conviction for refusing to provide a breath sample. He alleged trial judge erred in his application of reasonable doubt and that he rendered judgment against the weight of evidence. Accused claimed he was not able to provide breath sample due to medical condition. Accused's phy- sician provided supporting testi- mony regarding medical condi- tion. Appeal dismissed. Accused was given adequate amount of times to provide breath sample and adequate notice of consequences of his failure to do so. Accused did not mention medical condition when he was given breath demand. It was only after accused was arrested and given his Charter rights that he wanted to give sample. Law does not allow accused to choose when he wants to give sample. Trial judge did not err in his determination of guilt. R. v. Marquis (Nov. 15, 2011, Ont. S.C.J., McMunagle J., File No. 09-2262) 98 W.C.B. (2d) 180 (10 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT During questioning accused not in detention Accused was being charged with drug related offences. Accused sought evidence to be discarded due to alleged violation of his Charter rights. Accused claimed that by blocking his vehicle at pet- rol station and demanding identi- fication, peace officers physically detained him and failed to provide his rights to counsel at first avail- www.lawtimesnews.com able opportunity. Due to breach of his Charter rights, evidence of drugs should not be admitted. Application dismissed. Court affirmed that police did not block vehicle of accused and that he vol- untarily provided his identifica- tion. Court affirmed that, during questioning, accused was not in detention in the light of applicable jurisprudence and that there was no obligation to tell accused that he had right to retain counsel until after drugs were located. Peace officer read him his rights after arrest and provided him his right to counsel immediately upon his arrest at first moment possible in sequence of events. R. v. Nunez-Robles (Nov. 16, 2011, Ont. S.C.J., Wilson J., File No. 1-598796) 98 W.C.B. (2d) 192 (13 pp.) TRIAL WITHIN REASONABLE TIME Trial judge in error to put reason for delay on Crown instead of mak- ing it neutral Crown appealed stay of proceed- ings given in accused's favour on charges of sexual assault and sexual interference on basis his trial was not conducted in reasonable time. Central issue was how to properly characterize delay that resulted when trial judge granted request by defence for adjournment over objection of Crown, because of familiarity of Crown prosecutor with accused and his wife. Issues also arose with respect to whether trial judge erred in finding that accused had proved sufficient prejudice to justify stay of proceed- ings against him. Appeal allowed, new trial ordered. Court found that trial judge should not have given adjournment as there was no direct evidence that either accused or his wife would have been com- promised in their abilities as wit- nesses, nor was there any other evidence sufficient to justify that interference. Court accepted that trial judge had discretion to give adjournment to preserve appear- ance of fairness even when there was no actual conflict of interest but found trial judge was in error to put reason for that delay on Crown instead of making it neu- tral. Most of prejudice suffered by accused was charge related and not specifically delay related. Fact that witness favourable to accused had become hostile to him in interim since adjournment did not mean accused would not receive fair trial and that witness' change of story could undermine her credibil- ity. When impugned adjournment time was removed from occasion there was only 10 and a half month delay from charge until trial. R. v. Orton (Nov. 25, 2011, Ont. S.C.J., Ellies J., File No. 998099433) 98 W.C.B. (2d) 198 (17 pp.). Contempt Of Court GROUNDS Applicant afforded one chance to purge his contempt Application by Commission for order finding respondent in con- tempt for failing to provide proper answers to questions put to him by representatives of Commission and for failing to provide answers to undertakings given by him. Commission issued order pursuant to s. 11(1)(a) of Securities Act (Nfld. PAGE 15 & Lab.) to investigate and inquire into respondent and corporations relating to possible breaches of Act by respondent and corporations, including fraud, illegal distribu- tion of securities and unregistered trading of securities. Respondent had been examined three times by Staff of Commission and on each occasion had given undertakings to provide further information and documents. Application granted. Applicant was afforded one chance to purge his contempt. Respondent was in contempt of requests by Commission for information and documentation regarding alleged transfer of approximately $400,000. Ontario Securities Commission v. Hibbert (Nov. 2, 2011, Ont. S.C.J. (Commercial List), Newbould J., File No. CV 11-9350-00CL) 98 W.C.B. (2d) 199 (12 pp.). Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Fact that corrections officer did not use notes should not have been used to undermine credibility Accused appealed his conviction for possession of marijuana for purposes of trafficking. Accused had also been convicted of simple possession of MDMA. Accused was inmate in prison and female guard noticed strange bulge in pants of another inmate that was in his company and had that man, the accused and another inmate watched by other guards. Guards smelled odour of marijuana and soon noticed bulge was missing from other inmate. While accused, the inmate who appeared to have had a bulge in his pants and third inmate were segregated and strip searched sock containing 171.71 grams of marijuana was found in back of room accused was being searched in. Accused immedi- ately stated that package was not his. Accused was placed in segre- gation. MDMA charge arose out of subsequent search of accused's segregation cell wherein 10.88 grams of substance was found. Segregation cells were thoroughly searched both before and after inmate was put there. Accused took responsibility for MDMA and small amount of marijuana found in segregation cell but main- tained that sock of marijuana was not his. Appeal allowed, new trial ordered. Fact that female correc- tions officer, who testified that all three of inmates involved had been put in room where marijuana was found at one time, did not use her notes in examination should not have been used to undermine her credibility as trial record indicated use of notes was never qualified. Trial judge stated that fact accused stood mute instead of pleading guilty to possession of MDMA undermined his credibility when he had in fact told corrections offi- cers that MDMA was his. Trial judge rejected accused's explana- tion that MDMA was given to him on basis of expert testimony but that expert had never been asked about MDMA and only gave tes- timony regarding large amount of marijuana. R. v. Hewitt (Nov. 14, 2011, Ont. C.A., Rosenberg, Rouleau and Karakatsanis JJ.A., File No. C52964) 98 W.C.B. (2d) 207 (11 pp.). LT

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