Law Times

Law Times • OcTOber 26, 2015 Page 15 www.lawtimesnews.com nesses was not required. Brosnan v. Bank of Montreal (Jul. 29, 2015, F.C., Simon Fothergill J., File No. T-1332-14) 256 A.C.W.S. (3d) 664. ONTARIO CIVIL CASES Civil Procedure COMMENCEMENT OF PROCEEDINGS Libel and Slander Act notices did not sufficiently specify matter Action arose out of two publica- tions, one broadcast and other printed. Plaintiff alleged that defamatory statements were made that created link between it and Hamas supporters that attended pro-Palestinian rally. Defendants brought motion under R. 21.01(1)(a) of Rules of Civil Procedure to determine whether plaintiff complied with notice requirements un- der s. 5 of Libel and Slander Act prior to bringing action. Mo- tion granted; action dismissed. Sufficiency of notice under act was question of law and was properly before court on R. 21 motion. Notice requirement was mandatory and failure to provide sufficient notice was absolute bar to proceeding. No- tice had to sufficiently identify matter complained of. Notice must be specific enough to pro- vide defendants with opportu- nity to correct or limit harm. Notices here identified matter complained of but they did not sufficiently specify matter com- plained of, as was possible given specificity of statement of claim. Notices provided were in nature of plaintiff 's interpretation of words spoken and published than they were direct references to them. Notices provided here did not meet requirements of s. 5(1) of act. CUPW v. Quebecor Media Inc. (Jul. 15, 2015, Ont. S.C.J., Pel- letier J., File No. 14-62129) 256 A.C.W.S. (3d) 738. Municipal Law ACTIONS AGAINST MUNICIPALIT Y Section 398(1) of City of Toronto Act, 2006 did not require that claim against city be struck Plaintiff was struck by streetcar while attempting to cross road at median planted with trees, and onto fixed rails. Plaintiff commenced action against operator of streetcar, transit agency, and city. Transit agency brought motion for summary judgment. Motion sought dis- missal of action against city. Transit agency admitted legal responsibility for maintenance and structure of trees on medi- an. Motion dismissed. Agency and city had different view re- garding responsibility for trees and mediation. Transit agency's admission could not bind an- other party. Section 398(1) of City of Toronto Act, 2006 did not require that claim against city be struck. To apply, s. 398(1) required that claim relate to transit agency's property. Me- dian and trees were owned by city. Agreement between transit agency and city to share costs and responsibility of mainte- nance did not alter result. Tran- sit agency's wish to assume all liability did not automatically remove city as co-defendant. Plaintiff was entitled to con- tinue action against potentially liable city. Agarwal v. Lee (Jul. 3, 2015, Ont. S.C.J., Hood J., File No. CV-08-00356047) 256 A.C.W.S. (3d) 711. Professions BARRISTERS AND SOLICITORS No error in Master's dis- missal of motion to remove lawyers of record Plaintiffs alleged that defen- dants owed them money as result of services plaintiffs ren- dered under contingency agree- ment. Plaintiffs brought motion to remove lawyer and law firm as lawyers of record for defen- dants. Motion was dismissed. Plaintiffs appealed. Appeal dis- missed. Master did not make any palpable and overriding error in deciding that solicitor- client privilege over invoice had been waived. Master did not err in failing to find that past solicitor and client relation- ship between lawyer and female plaintiff prevented lawyer and law firm from acting for de- fendants in present litigation. Master did not make any pal- pable and overriding error or misapprehend evidence. Master considered all facts and relevant legal principles in arriving at decision. Boudreau v. Loba Ltd. (Aug. 4, 2015, Ont. S.C.J., Kershman J., File No. Ottawa 13-59218) Decision at 252 A.C.W.S. (3d) 601 and 253 A.C.W.S. (3d) 783 were affirmed. 256 A.C.W.S. (3d) 719. ONTARIO CRIMINAL CASES Evidence HEARSAY Trial judge did not err in finding that interview state- ment was spontaneous Accused's boyfriend, L, killed complainant in his bedroom with knife while accused was standing outside residence with friend. Thirteen hours after complainant was killed, police interviewed accused about kill- ing. Nearly six hours into inter- view, police informed accused that she was being charged with first degree murder, and she replied that she was innocent ("interview statement"). At ac- cused's trial, trial judge admit- ted interview statement as spon- taneous out-of-court statement made when first confronted with accusation of crime. Ac- cused was acquitted. Crown ap- pealed. Appeal dismissed. Trial judge did not err in finding that accused was first confronted with accusation of committing crime during her police inter- view. Members of accused's family confronted L and ac- cused about what had happened to complainant and asked ac- cused if he had killed her, but they did not accuse L of partici- pating in murder. Trial judge did not err in finding that inter- view statement was spontane- ous. Considerations supporting this finding included that trial judge expressly considered 13- hour gap between offence and interview statement and that he had advantage of comparing accused's trial testimony to her police interview. Trial judge did not rely on presumption of in- nocence to wrongly assume that presumptively innocent person can never anticipate being con- fronted with charge of premedi- tated murder. Trial judge only said that in assessing whether interview statement was spon- taneous, he could not presume that accused and L planned and executed murder and thus had time to concoct story. Appellate cases relied on by Crown on is- sue of spontaneity were distin- guishable, since in those cases issue of spontaneous statement was not raised at trial. Trial judge did not err by failing to excise part of accused's police interview before it was shown to jury. Editing out and isolat- ing part of accused's police in- terview would likely have un- dermined jury's ability to assess probative value of interview statement. R. v. Liard (Jun. 9, 2015, Ont. C.A., John Laskin J.A., Gloria Epstein J.A., and K. van Rens- burg J.A., File No. CA C55410) 123 W.C.B. (2d) 550. Extradition and Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Section 6(1) of Canadian Charter of Rights and Freedoms right of child was not engaged Applicant sought judicial re- view of decision to surrender regarding conspiracy charges of importing 100 kilograms of marijuana. Canadian border authorities located US $59,540 in applicant's car panelling. Ap- plicant argued Charter rights of child were affected as minister's reconsideration decision indi- cated that he was fully aware of applicant's role as sole caregiver of child and aware of assessment report. Assessor noted applicant rented apartment from mother who supported him and there were also several siblings caus- ing minister to conclude that applicant's surrender would not leave child without support and care of family member. Applica- tion dismissed. It was reasonable for minister to make decision as all relevant factors were consid- ered. Section 6(1) of Canadian Charter of Rights and Freedoms right of child was not engaged in this case as child was not person sought for extradition and that extradition of applicant would not result in removal of her child from Canada. United States of America v. Pak- ulski (Jul. 21, 2015, Ont. C.A., Janet Simmons J.A., M. Tulloch J.A., and Grant Huscroft J.A., File No. CA C57319) 123 W.C.B. (2d) 557. Trial ACCUSED NOT REPRESENTED BY COUNSEL Decision requiring province to fund accused's chosen coun- sel was reversed on appeal Province appealed decision requiring province to fund accused's chosen counsel on charges of first degree murder. Ontario no longer disputed that accused could not fully fund counsel from his own resources and that he required counsel to ensure fair trial. Ontario only sought leave of Court to Ap- peal counsel of choice appoint- ment, arguing that application judge erred in ordering Ontario to pay for specific counsel ac- cused wished to represent him. In interests of moving this case along, Ontario had agreed to fund accused's chosen counsel even if successful on this appeal. Leave to appeal granted; ap- peal allowed: order appointing accused's counsel of choice as state-funded counsel, at rate to be negotiated in good faith, set aside; in accordance with On- tario's position on this appeal, accused's counsel would not be removed. Application judge's decision to order publicly-fund- ed counsel of choice in this case was contrary to binding deci- sion of court. Facts did not sup- port either of narrow and rare exceptions. Application judge's reasons did not refer specifically to applicable test; they did not include any analysis of its com- ponents; and they did not ref- erence any evidence capable of satisfying either exception. Ac- cused relied simply on complex- ity of case and familiarity of his counsel of choice with details of it. Accused did not explain why it would not be possible for other competent counsel to protect his fair trial rights. On application judge's reasoning, nearly any accused person fac- ing serious charge and complex trial could succeed on counsel of choice application once he or she ran out of money to pay his or her lawyer. That broad avail- ability did not fit with intended rarity of counsel of choice order. There was nothing in applica- tion judge's reasons to support need for payment of enhanced rates above those authorized by Legal Aid to ensure that accused received competent counsel. Ontario v. Hafizi (Jul. 17, 2015, Ont. C.A., J.C. MacPherson J.A., J. Simmons J.A., and H.S. LaForme J.A., File No. CA C58939) Decision at 113 W.C.B. (2d) 601 was reversed. 123 W.C.B. (2d) 602. CHARGE TO JURY Trial judge did not err in instructions on causation Accused appealed his convic- tions for manslaughter and aggravated assault. Accused was charged with second de- gree murder in tragic death of 15-year-old girl who was shop- ping with her sister on Boxing Day in 2005, was hit by stray bullet during gunfight between two groups of young men on very crowded Yonge Street in Toronto, just north of Eaton Centre. Following jury trial ac- cused was convicted of man- slaughter in relation to death of young girl and four counts of aggravated assault in relation to four other individuals wounded by stray bullets. Crown's theory of causation was that accused, gunman who shot victim, and others in their groups had de- cided, prior to any shots being fired, to engage in gunfight on public street. Crown's theory of accused's role was that he owned and carried 9mm hand- gun and passed it to co-accused, convicted of second degree murder in shooting, possibly after firing shots himself. Ac- cused submitted that trial judge erred by failing to instruct jury that, in order to establish cau- sation against accused, Crown had to prove mutual gunfight theory with respect to accused in order to find that his conduct was "significant contributing cause" to victim's death. Ac- cused claimed this amounted to non-direction on key ele- ment of causation. Appeal dis- missed. Highlighted passages were appropriate combination of instruction on applicable le- gal principles and setting out, in clear and succinct fashion, positions of parties on those is- sues. They were not, as accused asserted, devoid of content on former and entirely concerned with latter. It was true that trial judge did not convert her sum- mary of opposing positions of parties into precise ques- tion for jury to answer about mutual decision to engage in gunfight. However, combina- tion of judge's simple and clear summary of parties' positions on "mutual shootout" issue and legal instruction she gave would have focussed jury's attention appropriately to answer ques- tion posed in final paragraph of above passage which stated it would be up to jury to de- termine if Crown had proven sufficient causal relationship between actions of accused and victim's death. In that vein, it was important to note that ex- perienced defence counsel did not object to this component of jury charge. This was not surprising given that accused's core position, advanced in his closing address, was that he was not involved at all in gunfight: he did not have gun on Boxing Day, he did not fire gun and he did not do anything to assist anyone else in firing gun. R. v. Woodcock (Jul. 17, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. La- Forme J.A., File No. CA C53297) 123 W.C.B. (2d) 561. LT CASELAW

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