Law Times

Law Times • November 2, 2015 Page 15 www.lawtimesnews.com Plaintiff asserted he was not in courtroom for entire proceed- ing and would have accepted of- fer to settle had he known about it. Defendant asserted plaintiff was in courtroom at time of of- fer and rejected offer with shake of his head. Parties did not agree to settlement. Plaintiff instruct- ed defendant to accept subse- quent proposal for settlement. Plaintiff accused defendant of concluding settlement without instructions to do so. Plaintiff brought solicitor's negligence action. Action dismissed. De- fendant was not negligent. Plaintiff was aware of offers to settle negotiated in court but refused to accept them. Plaintiff gave instructions to reject settle- ment brokered by justice because plaintiff was adamant that no money be paid into court even small disputed amount. When defendant accepted subsequent offer, defendant was acting on clear instructions to settle. There was no basis to find that defen- dant would have proceeded to advice borrower's solicitor of ac- ceptance if she had by then re- ceived plaintiff 's email rescind- ing previous acceptance. Defen- dant proceeded on plaintiff 's in- structions previously given and plaintiff rescinded them too late. DeGroot v. McFarlane (Aug. 24, 2015, Ont. S.C.J., Wein J., File No. 503/10) 257 A.C.W.S. (3d) 471. Real Property CO-OWNERSHIP Estate established deceased's intention to exclude co-owner Deceased and respondent were in common law relationship in 1979 and they purchased home in 1980 in both names as joint ten- ants. Relationship deteriorated and respondent moved out of home in 1983. Since 1983 deceased lived in property and paid all carrying and maintenance costs until his death in 2014. Deceased died without will. Deceased's family thought that property was in deceased's name alone. Deceased's estate wanted to sell property and had attempted to locate respondent without success. Estate applied for order to dispense with service on respondent and for order vest- ing title in property in name of estate. Application granted. All reasonable steps had been taken to locate respondent and personally serve her. One joint tenant could acquire full title to property by way of adverse possession. Deceased had actual possession of proper- ty by himself for 32 years. There was no clear and direct intention by deceased to exclude respon- dent but such intention could be inferred. Facts supported notion that deceased believed he had full ownership of property. Estate sat- isfied onus of demonstrating facts establishing deceased's intention to exercise possession of property with intention to exclude respon- dent co-owner. Vesting order was issued declaring estate as legal and beneficial owner of property. Post Estate (Trustee of) v. Hamil- ton (Aug. 21, 2015, Ont. S.C.J., MacDougall J., File No. 124/15) 257 A.C.W.S. (3d) 498. Tort LIBEL AND SLANDER Impugned statements by law- yers were clearly incapable of bearing defamatory meaning Appellant, obstetrician and gy- necologist, commencing action on several grounds against re- spondent lawyers who represent- ed appellant's former patients in complaints with College of Phy- sicians and Surgeons of Ontario and medical malpractice actions against appellant. Respondents brought successful motion to strike out appellant's statement of claim in its entirety. Appeal dismissed. Motion to strike out pleading on basis that statement at issue was incapable of defama- tory meaning only granted in clearest of cases. Impugned state- ments were clearly incapable of bearing defamatory meaning. Some statements were purely in- formational and made no com- ment in any way on merits of on- going litigation. They were neu- tral in description of appellant. Appellant's own pleading sup- ported references to numerous women who had come forward and issued claims against appel- lant. Allegations that form basis of potential or ongoing claims do not amount to defamation. State- ment which describes pursuit of public review process rather than private review process be- fore college did not even men- tion appellant. Comment about why college may impose restric- tions on physician's practice was purely factual statement about restrictions imposed on appel- lant's medical licence by college. Statement describing nature of allegations against appellant is not defamatory. Not possible to make claim for champerty with respect to complaints made to college. Damages cannot be awarded in those proceedings so there would be no profits to share. Champerty and mainte- nance claim was premature since none of underlying actions or complaints had yet concluded. Claim for maintenance not ac- tionable without proof of actual loss. Where underlying action or defence is valid and legitimate use of court system, there can be no damages based on champerty and maintenance. Malicious prosecution requires proceeding initiated by defendant, termi- nated in favour of plaintiff, that defendant had no reasonable and probable cause to initiate pro- ceeding and acted with malice. There was no allegation that pro- ceedings terminated in favour of plaintiff nor was element of mal- ice properly pleaded. Pursuant to Regulated Health Professions Act, 1991, actions for malicious prosecution based on complaints to college are effectively barred. Reference to complaint to col- lege having been made may be proven at trial, but nothing from complaint record is admissible in civil action. Frank v. Legate (Sep. 18, 2015, Ont. C.A., P. Lauwers J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59283) 257 A.C.W.S. (3d) 483. Wills and Estates WILLS Doctrine of cy-press was applied Deceased's will provided for cash legacies of $100,000 each to Alcoholics Anonymous, Rena- scent Centre and World Wildlife Fund. Each bequest was followed by words "in perpetuity". Alco- holics Anonymous could only accept $5,000. Trustee applied for interpretation of will. Appli- cation granted. True meaning, intent and effect of words "in perpetuity" in respect of each charitable gift was that $100,000 legacy would remain intact and any income earned from money would be used by charitable or- ganization to fund charitable activities. Given disclaimer by Alcoholics Anonymous of all but $5,000 of legacy, it was im- possible to carry out bequest as instructed. Doctrine of cy-press was applied. From wording of will it was clear that deceased had general overriding charitable intention. Deceased was recov- ering alcoholic and received as- sistance and support from both Alcoholics Anonymous and Re- nascent Centre. It was in keeping with deceased's general intention that disclaimed $95,000 be paid to Renascent Centre in trust, with capital held in perpetuity and net income used to support treatment programs at Rena- scent Centre. Kubiak Estate, Re (Jun. 18, 2015, Ont. S.C.J., L.A. Pattillo J., File No. 01-2234/12) 257 A.C.W.S. (3d) 499. ONTARIO CRIMINAL CASES Charter of Rights SEARCH AND SEIZURE Charges stayed in case of obvious collusion by police Accused was charged with pos- session of heroin for purpose of trafficking and sought Charter stay alleging s. 8 breach. Accused contended that major crimes of- ficer orchestrated traffic stop of accused who was suspected drug trafficker and then further or- chestrated pretext to search his car by putting powdered heroin on top of console. Scene of crime officer was only called to investi- gate and record state of accused's vehicle after it was searched and not before. Both officers testified to patently untrue story about hearing accused's licence plate over radio and they stuck to that story until it was undermined by recordings. Defence counsel ex- plained that she had purposely not asked Crown counsel for pre-trial disclosure of dispatch tapes; instead, she requested pro- duction at opening of trial based on prior experience that police routinely review tapes before they testify if they were produced in Crown disclosure and tailor their testimony to match tapes. Application granted, charges stayed. Obvious collusion and its denial by officers was disturbing and led inevitably to conclusion that there was something other than licence plate that prompted two officers to attend at arrest of accused in parking lot that day. Experienced police officers on major crimes unit did not call scene of crime officer to examine and document crime scene prior to search and course of conduct by police suggested strategy de- signed not so much to investigate crime scene but to cover their own tracks which could not be condoned. R. v. Tran (Sep. 3, 2015, Ont. S.C.J., E.M. Morgan J., File No. CF-15-90000036) 124 W.C.B. (2d) 126. Trial ACCUSED NOT REPRESENTED BY COUNSEL Accused was granted funding for counsel Accused charged with first de- gree murder. Accused applied for order pursuant to s. 7 of Cana- dian Charter of Rights and Free- doms directing that government pay for such funding as was nec- essary to make full answer and defence, and for stay of proceed- ings until government provided funding for counsel. Accused was denied Legal Aid on basis that he had means to fund his own defence. Accused was ter- minated by his employer as result of his arrest and had no income. Accused's credit privileges had been terminated by bank and he was forced to sell his house for less than assessed value. Ac- cused's application for Legal Aid was refused on basis that he had transferred title to his property for value less than fair market value, because of his spouse's in- come, and because he had used pension payout to pay various debts, and did not make payment of legal fees priority. Three weeks prior to commencing present application, accused and his wife separated and separation agreement purported to make parties financially independent of each other. Application al- lowed. Accused's property was in state of disrepair, and it was unlikely that any disposition by bank would have yielded any more by way of proceeds than transaction made by accused. Given circumstances, house was sold at fair market value under conditions where there was little chance that not going through with transaction would have yielded more money to accused. Consideration of spouse's in- come should not have disquali- fied accused from assistance. Funds of about $50,000 had been paid on accused's behalf toward legal fees, presumably by his spouse. There was no evi- dence that money available after accused's arrest was spent on lavish lifestyle or for anything other than necessities of life. Identification evidence in case was most important, and de- fence was not one that accused could have embarked upon on his own, where amicus might have been engaged for some part of trial, or where full-time coun- sel was not required. If convict- ed, accused faced incarceration for rest of his life. Accused had grade 10 education and no ex- perience with legal matters. It was in best interests of justice for accused to be represented at trial, and accused was not in fi- nancial position to fund counsel privately. R. v. Josipovic (Aug. 12, 2015, Ont. S.C.J., Lofchik J., File No. 15-4910) 124 W.C.B. (2d) 195. Trial CONDUCT OF TRIAL Reasoning of trial judge disclosed no reasonable apprehension of bias Accused appealed conviction for one count of assault and two counts of assault with weapon. Accused allegedly pushed his aunt to f loor and hit his daugh- ter with piece of wire and with laptop computer. Accused's aunt testified at trial and denied that accused had assaulted her. Accused was born in Afghani- stan. Trial judge put very little weight on aunt's evidence, hold- ing that she was suffering from depression, had issues with her memory, and that her "head was not right". Trial judge pre- ferred evidence that daughter gave in her statement to police on day they were called to fam- ily home, rather than evidence she gave at trial, given contrast in her demeanour and manner between two statements. Appeal dismissed. Reasoning of trial judge and reasons for sentence disclosed no reasonable appre- hension of bias, nor did they in- dicate that trial judge relied upon cultural factors. Accused's sub- mission that Crown pursued line of questioning aimed at exposing cultural basis for his actions and for complainants' reluctance to testify against him was not sup- ported by trial transcript. Ques- tions of Crown were not improp- er, but were directly responsive to complainant's own testimony. There was nothing in judgment to indicate that trial judge gave more weight to daughter's KGB statement because it was under oath, rather than affirmation, as was her trial testimony. Trial judge's references to accused's specific community, as well as to more general community at large, did not give rise to reason- able apprehension of bias. Trial judge was mistaken about aunt's evidence, as she did not testify that her head was not right. Trial judge did not misapprehend sub- stance of material parts of aunt's evidence, and error did not play essential part in reasoning process that resulted in conviction. Trial judge gave detailed reasons why he preferred daughter's evidence in her police statement. Reading reasons as whole, trial judge did not place disproportionate weight on daughter's demeanour in rely- ing on KGB statement. R. v. Siddiqi (Jul. 25, 2015, Ont. C.A., David Watt J.A., David Brown J.A., and L.B. Roberts J.A., File No. CA C59170) 124 W.C.B. (2d) 128. LT CASELAW

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