Law Times

Law Times • June 15, 2009 price contract. S. refused to sign contracts that did not pay S. by hour. Parties were willfully blind or so preoccupied parties failed to turn minds to predicament. Each party operated under fun- damental misconception as to how compensation would be paid. There was no acceptance of offers on terms made by ei- ther party. No oral agreement existed. S. was entitled to be paid reasonable value for work done on quantum meruit basis. Defendant was to pay $36,082. Counterclaim was dismissed. 1579137 Ontario Ltd. v. Atlan- tis Marine Construction Inc. (Mar. 27, 2009, Ont. S.C.J., Gilmore J., File No. CV-06- 0744) Order No. 009/091/007 (21 pp.). Corporations DIRECTORS Director was found personally liable Plaintiff supplied ingredients to baking industry. Defendant was plaintiff's customer. When order was delivered, defendant had ceased operations without notice to plaintiff. New bakery was set up with many of same employees. Bakery was now operated by co-defendant. Ac- tion was allowed against defen- dant and director in amount of $22,311. Actions of defendant and defendant director were oppressive and prejudicial to in- terests of plaintiff. Director was found personally liable. Direc- tor did not manage defendant in accordance with legal obliga- tions. Director was required to compensate creditor for amount of outstanding indebtedness. Far East Foods Products Ltd. v. 1104742 Ontario Ltd. (Feb. 27, 2009, Ont. S.C.J., Bielby J., File No. CV-3113-00SR) Order No. 009/085/041 (8 pp.). Courts ABUSE OF PROCESS Action in conspiracy and defamation dismissed as abuse of process Defendants were employees of Ministry. Defendants' allega- tions about conduct and moti- vation of plaintiff while plain- tiff was employed by Ministry led to plaintiff's suspension and dismissal from employment for cause. Plaintiff's grievance was settled. Settlement con- tained release clause and refer- ence abandonment of variety of other claims in consideration of payment plaintiff received. Plaintiff brought action for damages for conspiracy and def- amation. Defendants brought motion to dismiss action as abuse of process. Board ruled it had jurisdiction to hear dis- pute and declaration was made plaintiff breached provisions of settlement. Board did not usurp court's jurisdiction. Ministry was entitled to become inter- vener as added party without need for further order. Action was abuse of process. Action was stayed permanently. Plain- tiff breached deemed undertak- ing rule. Plaintiff's allegations in statement of claim of tortious conduct by defendants were based entirely on documents and information disclosed to plaintiff in course of grievance procedure. Potential of preju- dice to Ministry outweighed prejudice to plaintiff from ap- plication of rule. Antoncic v. Wylie (Mar. 30, 2009, Ont. S.C.J., Cavarzan J., File No. 07-35577) Order No. 009/090/004 (31 pp.). Criminal Law PROCEEDS OF CRIME Application for forfeiture of money as proceeds of unlawful activity was dismissed Respondent's vehicle was stopped to inquire about whereabouts of vehicle's plates. There was outstanding unen- dorsed order for respondent's arrest on charge of possession of marijuana. Constable mistak- enly believed warrant was for trafficking. Constable searched respondent and vehicle find- ing $700, marijuana and brass knuckles. Respondent told con- stable there was approximately $26,000 in packsack behind driver's seat. Respondent was charged with possession of controlled substance and pos- session of prohibited weapon. Respondent pleaded guilty and received absolute discharge on both counts. Applicant sought order to forfeit $25,709 to Crown in right of Ontario as proceeds of unlawful activ- ity. Application was dismissed. Money was to be returned to respondent. Evidence relied on by Crown depended on infer- ences to be drawn from certain circumstances. There were no contextual facts. Crown did not discharge onus of proof. Ontario (Attorney General) v. Cuenca (Feb. 10, 2009, Ont. S.C.J., Shaw J., File No. CV-06- 0172) Order No. 009/068/019 (19 pp.). Debtor And Creditor RECEIVERS Balance of convenience favoured appointment of receiver Debtor worked for creditor. Debtor misused authority to divert funds from creditor to debtor. Debtor diverted $4.2 million from creditor. Amounts in accounts were miniscule in comparison to amount di- verted. Creditor was granted Mareva injunction and cer- tificates of pending litigation against debtor's residence and cottage. Creditor sought ap- pointment of investigatory re- ceiver over debtor and debtor's related entity. Creditor showed strong prima facie case against debtor. Without appointment of received creditor's right to recovery could have been seri- ously jeopardized. Balance of convenience favoured grant- ing appointment of receiver. It was just and equitable to grant receiver power to request entry into two residential premises similar to powers in paragraphs of model commercial list Anton Piller order. Provisions were to require debtor or named indi- viduals to attend premises with receiver. CASELAW Loblaw Brands Ltd. v. Thorn- ton (Mar. 23, 2009, Ont. S.C.J., Brown J., File No. CV-09-373422) Order No. 009/089/078 (5 pp.). Employment DUTIES OF EMPLOYEE Plaintiff 's actions contrary to conflict of interest policy and duties to employer Plaintiff's action alleging ter- mination without cause. De- fendant business software de- velopment and sales company terminated plaintiff's employ- ment as director of sales and marketing plaintiff after secretly discovering developing competitive product while em- ployed with it. Plaintiff simulta- neously involved with long-term product planning for employer. Plaintiff also involving second employee in project with false assurances that project was or would be authorized and was not prohibited. Plaintiff's plan deliberate and clandestine, and plaintiff lied when confronted with it. Action dismissed. Plain- tiff's actions contrary to conflict of interest policy and duties to employer. Immaterial that prod- uct largely created on plaintiff's own time. Employee had duty to use creative skill to generate concepts for employer's benefit. Trust foundation of employ- ment relationship irreparably breached. Corso v. Nebs Business Prod- ucts Ltd. (Mar. 17, 2009, Ont. S.C.J., Strathy J., File No. 06-CV-310205PD2) Order No. 009/079/459 (30 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Detention after officers satisfied that there were no driving infractions was unreasonable Accused charged with posses- sion of cocaine for purpose of trafficking and possession of marijuana. Police stopped ve- hicle accused was travelling in after they ran the licence plate and discovered it was registered to a "G1" driver and was be- ing operated at a prohibited time for that class of driver. There were no driving issues but officers' suspicion was heightened because a CPIC check revealed that driver had been charged with possession of firearm in a motor vehicle. Officers questioned driver and passengers because of driver's charge. Accused and a passen- ger were arrested after accused was searched and drugs were discovered. Sections 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Officers were entitled to stop car because car was registered to "G1" driver but by the time they approached passengers and ran CPIC checks they were satisfied that there were no driving infractions. New www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. BestCase includes: • Canadian Criminal Cases • Dominion Law Reports • Labour Arbitration Cases • Land Compensation Reports • Ontario Municipal Board Reports • All-Canada Weekly Summaries • Canadian Labour Arbitration Summaries • Weekly Criminal Bulletin • Canada Law Book's Western Digest Services No more photocopying required to get copies of decisions exactly as they appear in a law report! Only on BestCase will you find images of reported decisions as they appear in our law reports, in a pdf file, complete with headnotes. Also available are images of original judgments as released by the court, with the official court stamps and signatures. Continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). NEW! Disburse your costs BestCase now allows you to track research, generate reports and manage your passwords using the new Disbursement Manager. Contact your Account Manager for pricing and more information www.canadalawbook.ca • 1-800-263-2037 Canada Law Book is A Division of The Cartwright Group Ltd. detention was arbitrary and unreasonable. Although ques- tioning was done in good faith, breaches were serious. Admis- sion of evidence would bring administration of justice into disrepute. Evidence excluded. R. v. Chronopoulos (Apr. 21, 2009, Ont. S.C.J., Harvison Young J., File No. 1583360) Or- der No. 009/113/017 (8 pp.). SEARCH AND SEIZURE Search of car was unreasonable Accused charged with posses- sion of cocaine, possession for the purpose of trafficking, and possession of proceeds. Accused applied for order excluding evi- dence seized from his vehicle in breach of his rights under Ca- nadian Charter of Rights and Freedoms. Officers responded to 9-1-1 call concerning a man who was passed out in vehicle. Accused was observed in driv- ers seat with seat belt on, head against driver's door and keys in ignition, vehicle running, and gear in drive. Ambulance ar- rived at scene and attended to accused. Officers checked his car and found drugs and para- phernalia in accused's car. Ap- plication allowed and evidence excluded. Initial inquiries and actions undertaken by officers were reasonable but subsequent search of car was not. There was no basis pursuant to officer's duty to protect health and safe- ty. Accused was conscious and responsive and was already be- ing attended to by paramedics. Search constituted unreason- able search and seizure. Breach was serious and admission of evidence have negative effect on administration of justice. PAGE 15 R. v. Hewitt (Apr. 7, 2009, Ont. S.C.J., Pattillo J., File No. CR-07-FD000879) Order No. 009/103/067 (16 pp.). Environmental Law WATER POLLUTION Corporate accused found not guilty of failing to comply with Certificate of Approval Corporate accused charged with failing to comply with a Cer- tificate of Approval by exceed- ing the effluent limit for oil and grease contained in the effluent discharged from an "oil sepa- rator" in contravention of the Ontario Water Resources Act, R.S.O. 1990, c. O.40. Accused not guilty. Crown failed to es- tablish guilt beyond a reasonable doubt. Letter of accused that Crown sought to rely on as an admission against interest docu- ment had a number of deficien- cies and was given little weight. Relevant sample relied on by Crown was not a "legal sample" and was not subject to the same rigors and controls to which a legal sample would be subject. Attaching very little weight to the sample the Crown relied on, court was left with reasonable doubt that the actus reus had been established. In the alterna- tive the court would have found accused not guilty on basis of due diligence as its procedures were such that the court could not imagine anything more the accused could reasonably have done prior to that day to prevent the excess reading. R. v. Petro-Canada (Apr. 28, 2009, Ont. C.J., Manno J.P.) Order No. 009/119/007 (28 pp.). LT Find the best in…

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