Law Times

Law Times • OcTOber 5, 2015 Page 15 www.lawtimesnews.com Respondents decided to erect gated fence over strip of land leading to and from beach. Applicants maintained fence and gate made it very difficult to transport items to and from beach; prevented all vehicular access to and from beach; im- peded access for guests and ten- ants with mobility problems; and there was major inconve- nience associated with having to lock and unlock gate numer- ous times each day. Applicants sought declaration confirming their rights of way over strip of land; mandatory order requir- ing respondents to remove all obstructions from strip; and permanent injunction restrain- ing respondents from interfer- ing with applicants' use and enjoyment of strip. Application granted. Easement that appli- cants enjoyed fell into category of one granted on widest pos- sible terms. Developer who granted easement clearly in- tended it be as broad as possible in both words and effect. Con- trol measures that respondents implemented clearly constitut- ed substantial interference with applicants' intended use and enjoyment of easement. Such substantial interference with applicants' rights was not justi- fied by any demonstrable and reasonable need of respondents to implement their chosen con- trol measures, which were not necessary, effective, even-hand- ed or workable. Respondents' control mechanisms could not be condoned or permitted. Ap- plicants were granted declara- tion confirming their rights- of-way over strip. Applicants were granted injunctive relief compelling removal of fence and gate and enjoining respon- dents from erecting or placing other barriers across strip of land without prior court autho- rization. Przewieda v. Caughlin (Jul. 16, 2015, Ont. S.C.J., I.F. Leach J., File No. 3520-14, 3988-14) 256 A.C.W.S. (3d) 226. Restitution TRACING No error in finding that money used to make restitutionary payments could not be traced back to plaintiff 's funds Defendant P was employed by defendant company and he pleaded guilty to stealing $670,000 from company. P was deported and company was no longer in operation. P had made restitutionary payment of $390,000 to company pur- suant to arrangement made on his sentencing. Some of pay- ments benefited defendant R, shareholder and director of company. Plaintiff was victim of fraud. Plaintiff claimed that P made restitutionary pay- ments with funds he stole from plaintiff. Plaintiff brought ac- tion to recover money from P, company and R. Trial judge found that money P stole from plaintiff could not be traced to money received by company. Assuming plaintiff 's funds could be traced to company, trial judge found that company and R were not in knowing re- ceipt of funds and R was not unjustly enriched because there was juristic reason for enrich- ment. Action was dismissed. Plaintiff appealed. Appeal dis- missed. Trial judge did not err by excluding P's statements that he used plaintiff 's money to make restitutionary payments to company, given P's abundant dishonesty and contradictory statements that he made. Giv- en exclusion of P's admission, there was no direct evidence that plaintiff 's money had been used to make restitutionary payments to company. P had pool of money available to him other than money he stole from plaintiff. No error in finding that plaintiff had not estab- lished that $150,000 could be traced back to its funds. With respect to $40,000 restitution- ary payment made out of P's ac- count, direct evidence showed that stolen funds from plaintiff could be traced to P's bank ac- count where it was mixed with other funds. Trust funds could be traced into mixed accounts. However, even assuming that $40,000 could be traced into company's account there was no basis for finding liability on R personally. Healthy Body Services Inc. v. 1261679 Ontario Ltd. (Jul. 9, 2015, Ont. C.A., R.G. Juri- ansz J.A., J. MacFarland J.A., and P. Lauwers J.A., File No. CA C57889) Decision at 233 A.C.W.S. (3d) 525 was affirmed. 256 A.C.W.S. (3d) 229 Torts LIBEL AND SLANDER Defence of fair com- ment not available Appellant was tenured profes- sor at university until he was dismissed. Appellant authored personal blog that was pur- posely critical of university. Appellant referred to respon- dent as "house negro" of presi- dent of university. Respondent sued for defamation. Appel- lant read statement on second morning of trial indicating he would not participate further. Appellant did not call evidence in his defence. Jury awarded general damages of $100,000 and aggravated damages of $250,000. Trial judge endorsed verdict and ordered substantial indemnity costs of $444,895 against appellant. Trial judge granted permanent injunction requiring appellant to remove offending material from In- ternet and to refrain from fur- ther defamation of respondent. Appellant sought new trial. Appeal dismissed. Defence of fair comment was not avail- able to appellant. Appellant called no evidence and with- out evidence could not estab- lish criteria for fair comment. Trial judge's finding of malice defeated defence of fair com- ment in any event. There was no request from appellant that jury be told to watch video and trial judge did not err in failing to instruct jury to watch video. Given jury's finding of liability grounded in malice, there was no reason to interfere with trial judge's exercise of discretion in connection with costs. Rather than attempting to prove his right to freedom of expression should, at law, overcome re- spondent's right to protect her reputation, appellant refused to participate in trial. Appellant did not satisfy burden to rebut presumption of judicial impar- tiality. Reasonable, informed person would not think it more likely than not that trial judge would not decide fairly. St. Lewis v. Rancourt (Jul. 8, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., Robert J. Sharpe J.A., and M.L. Benotto J.A., File No. CA C59074) 256 A.C.W.S. (3d) 233. NEGLIGENCE No special relationship of prox- imity giving rise to duty of care concerning safety of lake AH drowned while he was guest with his family at defen- dants' cottage. He was non- swimmer who went into lake with his daughter on inf latable tube he had brought with him to cottage. His surviving fam- ily members sued defendants in negligence. They claimed defendants made representa- tions lake was safe. Defendants brought motion for summary judgment to dismiss plaintiffs' claims. Motion granted. Even accepting alleged statements were made by defendants to ef- fect that lake was safe and that one could walk for miles, those statements did not amount to negligent misrepresentation. Facts did not establish there was any special relationship of proximity giving rise to duty of care on part of defendants con- cerning safety of lake. AH was well-educated adult. He knew he was non-swimmer. AH gen- erally did not go further than water up to his waist. He made decision to go out further on inf latable tube, putting himself at risk. Plaintiffs' action was dismissed. Hashemi-Sabet Estate v. Maz- zulla (Jul. 16, 2015, Ont. S.C.J., M.L. Edwards J., File No. CV- 12-110530) 256 A.C.W.S. (3d) 241. ONTARIO CRIMINAL CASES Appeal GROUNDS Reasonable probability that verdict would have been dif- ferent had evidence been adduced not established Accused appealed his convic- tion for carrying concealed weapon and possession of weapon for dangerous pur- pose. Accused allegedly depos- ited "shank " in fellow inmate's pocket at detention centre. Sole ground of conviction appeal was alleged incompetence of counsel. Crown's case rested entirely on evidence of one witness, correctional officer, who swore she saw accused place shank in pocket of other inmate. Trial judge found of- ficer's evidence credible and reliable. Trial judge rejected assertion that absence of video evidence went against Crown, noting there was no evidence closed-circuit cameras would have captured transfer. Nor was trial judge prepared to draw ad- verse inference from Crown's failure to call other inmate. Ac- cused took issue with counsel's failure to pursue disclosure of video recordings of events at detention centre or to bring lost evidence application on learning that video had been destroyed; counsel's failure to seek adjournment of trial, when accused requested that other inmate be called as witness; and counsel's failure to call accused to testify. Accused asserted he did not testify because he was coerced by his counsel. Trial counsel said decision not to call accused was tactical one, based on his experience with accused as witness in previ- ous case, and accused accepted his advice. Appeal dismissed. Accused had not established reasonable probability verdict would have been different had evidence been adduced. There was no evidence video record- ing device would have cap- tured transaction. In absence of that evidence, and in view of accused's delay in request- ing production of video, it was unlikely lost evidence applica- tion would have been success- ful. It would be matter of pure speculation to conclude other inmate's evidence would have probably affected outcome of proceeding and there was no evidence it would have. Ac- cused had strong motive to fabricate claim of coercion by counsel. Put more generously, time and ref lection may have caused accused to persuade himself that counsel's strong advice amounted to coercion. It was obvious accused knew his way around courtroom and was well-informed of his legal right, further causing court to doubt his claims of coercion. Counsel performed as instruct- ed and conducted what trial judge described as "skillful and vigorous" cross-examination of correctional officer. Court was not persuaded counsel coerced accused not to testify or other- wise ignored his instructions. R. v. Nwagwu (Jul. 13, 2015, Ont. C.A., G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Benotto J.A., File No. CA C57022) 123 W.C.B. (2d) 308. Charter of Rights FUNDAMENTAL JUSTICE Constitutional challenge to Mutual Legal Assistance dismissed V and L were subject of ex parte applications for gathering and sending orders under ss. 18 and 20 of Mutual Legal Assistance in Criminal Matters Act. V and L argued that ex parte presump- tion for those proceedings violated ss. 7 and 8 of Charter. Application judge dismissed application for declaration of invalidity. Appeal dismissed. Applications for gathering and sending orders were investiga- tive and not adjudicative pro- ceedings. Ex parte presumption was for valid policy reasons in- cluding need for confidentiality and expedition. Act contained sufficient safeguards to comply with ss. 7 and 8 of Charter. United States of America v. Vis- comi (Jun. 30, 2015, Ont. C.A., Janet Simmons J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C57211, C57910, C59973, C59982) Decision at 120 W.C.B. (2d) 538 was affirmed. Decision at 107 W.C.B. (2d) 377 was re- versed. 123 W.C.B. (2d) 347. Sexual Offences SEXUAL ASSAULT Trial judge was entitled to accept testimony of complain- ant and accused's ex-girlfriend Accused appealed his convic- tions for sexual assault, voyeur- ism, and breach of probation. Charges against accused arose from incident involving ac- cused and his then sexual part- ner. On day in question, parties had sexual intercourse three times. It was common ground that first and third times were consensual. However, criminal charges were laid with respect to second episode of sexual in- tercourse. Crown contended accused choked complainant and had sexual intercourse with her while she was uncon- scious and videotaped sexual activity without her knowl- edge. Trial judge decided that these offences were made out and convicted accused. Appeal dismissed. Court did not think isolated example where com- plainant's testimony differed from her trial testimony, on subject of conversation between parties after chocking incident, was sufficient to overturn trial judge's findings. Trial judge was entitled to accept testimony of complainant and accused's ex-girlfriend, confirmed in im- portant respects by accused's own testimony. Core of defence at trial was vigorous attack on complainant's credibility based on inconsistencies between her testimony at trial and her prior statements. In this context, points of consistency on essen- tial aspects of allegations were relevant to credibility and reli- ability assessment of complain- ant's evidence. Both complain- ant's account of sexual incident and accused's ex-girlfriend's testimony about what accused told her about incident ("he had continued to have sex with her while she was unconscious") precluded alternate defence of honest but mistaken belief. R. v. Perkins (Jul. 10, 2015, Ont. C.A., G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Ben- otto J.A., File No. CA C57985) 123 W.C.B. (2d) 311. LT CASELAW

• Cover