Law Times

Law Times • November 9, 2015 Page 15 www.lawtimesnews.com of claim until more than year after that. Court must consider conduct of insured, gravity of breach and disparity between value of property forfeited and damage caused by breach in determining whether to grant relief. Motion judge misstated length of breach as six months and 17 days; length of breach for giving proof of claim was about 22 months. Motion judge did not err in finding that prejudice to insurer was minimal. Any prejudice suffered because it could not conduct its own in- vestigations and medical exam- inations at early date was out- weighed by harm to employee from his being unable to pursue claim. Insurer delayed over one year to provide information to employee concerning claim, had available to it abundance of medical information from date of accident and made no request to examine employee or to have him assessed after being given notice of claim. Motion judge exercised discretion reasonably in granting employee relief from forfeiture. Dube v. RBC Life Insurance Co. (Sep. 21, 2015, Ont. C.A., John Laskin J.A., J.C. MacPherson J.A., and J. MacFarland J.A., File No. CA C60100) Decision at 248 A.C.W.S. (3d) 432 was af- firmed. 257 A.C.W.S. (3d) 702. Mortgages VALIDITY Compelling reasons existed to find mortgage to be "sham" Second mortgage was registered against parties' matrimonial home, with husband's father as mortgagee. Mortgage contained no payment or interest provi- sions but principal balance was payable one year after executed. When parties separated, mort- gage remained unpaid. Father made demand for repayment. Three months later, when hus- band commenced divorce pro- ceedings, father brought action against parties for repayment. Husband did not defend ac- tion and father obtained default judgment against him. Father's action against wife dismissed. Mortgage invalid and unen- forceable against wife. Where evidence contradictory, wife's preferred over husband's and father's. Compelling reasons existed to find mortgage to be "sham". Common intention not established. Principal amount not advanced when mortgage entered into. Mortgage not re- lated to any tangible or substan- tiated debt to father. Mortgage was never intended to be repaid. Throughout marriage, there was intermingling of funds by father, husband and their com- panies, which continued in re- lation to funding of construc- tion for home. Wife relied on husband's representation that mortgage was to protect them against potential lien claimants. Father only demanded payment after separation. Large por- tion of alleged mortgage funds came from company in which husband, not father, had inter- est and which existed largely for husband's benefit. Wife did not receive independent legal advice and was pressured into entering mortgage because she refused to sign marriage contract. A. (A.) v. G. (Z.) (Jul. 14, 2015, Ont. S.C.J., Kruzick J., File No. Toronto FS-08-344363, CV-08- 366516) 257 A.C.W.S. (3d) 711. Professions BARRISTERS AND SOLICITORS Assertion that solicitor was retained on pro bono basis was supported by evidence Client suffered from schizo- phrenia and was on public dis- ability pension. Client wanted solicitor to bring malpractice claim against veterinarian but did not have ability to pay for legal services. Client believed solicitor agreed to act on pro bono basis. Solicitor claimed he agreed to act on deferred pay- ment basis in event that client recovered anything. No written retainer was prepared. Claim proceeded, and settlement was reached. Solicitor invoiced cli- ent $65,978.98 but later reduced amount sought to $34,000. Cli- ent brought application for dec- laration that solicitor had acted on pro bono basis and for related relief. Application granted. So- licitor's services had been pro- vided on pro bono basis. Given power imbalance between so- licitors and clients, preference was to be given to clients' under- standing of retainer agreement in absence of clear evidence to contrary. Solicitor failed to meet heavy onus on him to es- tablish that client agreed to pay for his services apart from dis- bursements. Client's assertion that solicitor was retained on pro bono basis was supported not only by client's own state- ments but also by statements of others, including solicitor. Most significantly, solicitor had represented to judge, opposing counsel, and client at pre-trial conference that he was working on pro bono basis at trial. Solici- tor's suggestion that he would get paid if anything was covered was in nature of contingency agreement, which was required to be in writing pursuant to s. 28.1 of Solicitors Act. Risk of not recovering anything did not make matter pro bono. Client's offer to split recovery in event that solicitor held out for higher settlement amount was consis- tent with pro bono arrangement. John Doe v. MacDonald (Aug. 10, 2015, Ont. S.C.J., M.D. Fa- ieta J., File No. CV-14-516242) 257 A.C.W.S. (3d) 724. Torts NEGLIGENCE Physical contact between hockey players occurred in course of play Plaintiff played recreational hockey in league operated by defendant T. Games in league were non-contact, meaning that body checking, cross-checks or shoving into boards were not permitted. However, as playing hockey carried inherent risk of injury, T required every player to sign waiver, which plaintiff signed. Plaintiff claimed that de- fendant C intentionally or reck- lessly checked him into boards from behind in contravention of rules of play in league and caused plaintiff to fall to boards. Plaintiff suffered fractured right tibia and fibula. Plaintiff claimed that T knew or should have known that C was dan- gerous player and failed to take adequate steps to protect safety and security of players in league. Plaintiff claimed he was no lon- ger able to participate in recre- ational, household, employment and athletic activities. Plaintiff brought action seeking damages for injuries. Action dismissed. By agreeing to play hockey and accepting its inherent risks, player also accepted or gave his implied consent that there was some risk of injury. Hockey player never assumes risk that he might suffer intentional or reck- less battery by another player in non-contact league. Based on evidence, plaintiff shot puck just seconds before impact. C's in- tention in skating toward plain- tiff was to get puck from him be- fore he shot it. Fact that plaintiff made play immediately before C reached him did not mean that C's act was no longer incidental or unrelated to advancement of game or that it demonstrated intention to cause injury. There was insufficient evidence that C's intention in skating toward plaintiff was to injure him. Plaintiff had played in league for several years and he understood nature of league and assumed inherent risk that injury could occur even in non-contact rec- reational league. Physical con- tact between players occurred in course of play and fell within ac- cepted inherent risks. Insofar as contact was intentional, plaintiff impliedly consented to being body-checked in course of play. C was not liable. Given C was not liable for plaintiff 's injury T could not be held liable. Even if T had been found to be negli- gent in not providing safe envi- ronment to play hockey, waiver was complete defence. Levita v. Crew (Sep. 1, 2015, Ont. S.C.J., Firestone J., File No. 08- CV-366572) 257 A.C.W.S. (3d) 747. ONTARIO CRIMINAL CASES Evidence CONFESSIONS AND ADMISSIONS Some of accused's statements to undercover officer were admissible Application by Crown for rul- ing as to admissibility of state- ments made by accused to un- dercover police officer. Crown tendered four audio recordings of conversations between ac- cused and officer. Accused was charged with first degree mur- der of his girlfriend. Crown alleged that accused and vic- tim lived together in common law relationship and they were parents of a boy. Victim went missing on December 4, 2010. Accused did not report her missing but on December 11, 2010 her sister called police and reported that victim had been missing for week. Police inter- viewed accused several times over next year. Recordings were made in June, July, August and September 2012. Accused was known basketball player and fan and officer portrayed him- self as basketball enthusiast. Officer pretended to be living with girlfriend who had mental health issues. He told accused that he felt trapped in that re- lationship and he wanted to get out of it. Officer also said that he and girlfriend had four- year-old daughter. Two hunt- ers found skeletal remains of victim on September 21, 2012, which was after last recording was made. Application allowed in part. Accused's statements to officer regarding possible ways to kill person, how to dispose of dead body and how to cover up crime were not admissible. Victim was not killed by any of methods discussed by accused with officer. Methods that ac- cused discussed was merely non-specific generalized talk and it was irrelevant. Much of conversation between accused and officer was boastful locker room talk and it was not reliable. Advice that accused provided to officer about disposing of dead body and covering up killing was not ref lected in condition of victim's remains. This evi- dence was also unreliable and it had little probative value. His statements regarding nature of his relationship with victim, in- cluding his animus towards her, were admissible. Crown and de- fence counsel were to attempt to agree on best way to edit audio recordings so as to eliminate inadmissible parts of conversa- tions. Much of routine mun- dane conversations were not to be edited out as those portions were necessary for jury to un- derstand relationship between accused and officer and context of discussions. R. v. Sharples (Jul. 8, 2015, Ont. S.C.J., J.R. Henderson J., File No. 38/14) 124 W.C.B. (2d) 25. Motor Vehicles CRIMINAL NEGLIGENCE CAUSING DEATH Convictions for criminal neg- ligence causing death or bodily harm upheld on appeal Trial judge convicted accused of three counts of criminal negligence causing death or bodily harm for high-speed crash where passengers died. Accused had engaged in in- tentional high-speed driving while egged on by passengers and failed to negotiate curve in rural road. Passenger testi- fied about accused's pattern of intentional high speeding. Crown called expert about pat- tern of speeding and crucial curve speed. Accused testified car forced off road by oncom- ing vehicle. Trial judge rejected accused's evidence and con- cluded he engaged in wanton pattern of high-speed driving without regard for lives of pas- sengers. Appeal from convic- tion dismissed. Trial judge did not err in accepting evidence of passenger after considering difficulties and inconsisten- cies with evidence. Absent pal- pable and overriding error no basis for appeal court to inter- fere. Trial judge did not apply stricter standard of scrutiny to evidence of accused. Verdicts not unreasonable as conclusion of criminal negligence based on accused's entire course of con- duct while driving. R. v. Laine (Jul. 9, 2015, Ont. C.A., John Laskin J.A., J. Mac- Farland J.A., and Paul Rouleau J.A., File No. CA C58184) 124 W.C.B. (2d) 270. Trial PLEAS Trial judge properly held trial counsel was not ineffective Accused pleaded guilty to fire- arms offences after trial coun- sel negotiated for other charges to be withdrawn. Trial counsel removed from record follow- ing pre-sentence report. Second counsel brought application to strike guilty pleas on basis ac- cused's social phobia meant he could not comprehend pro- ceedings. Accused and trial counsel testified on applica- tion and medical report being filed. Trial judge dismissed ap- plication on basis accused had not demonstrated mental and physical challenges affected procedural fairness of plea. Ac- cused's appeal from convictions dismissed. Trial judge correctly applied limited cognitive capac- ity test in refusing to set aside guilty pleas. Only evidence sug- gesting accused misunderstood proceedings came from accused who mainly blamed this on trial counsel's deficient advice. Trial judge properly held trial counsel was not ineffective in representation on guilty pleas. Trial counsel's evidence as well as lack of mention of failure to comprehend pleas in pre-sen- tence report supported conclu- sion pleas were voluntary. Sec- ond counsel's representation of accused did not amount to miscarriage of justice. Second counsel could have made more diligent efforts to obtain medi- cal evidence and investigate claim of ineffective assistance of trial counsel. No prejudice to accused as no medical evidence had surfaced pending appeal to support his claims and trial counsel's evidence on applica- tion to set aside pleas was cred- ible. R. v. Baylis (Jun. 29, 2015, Ont. C.A., Doherty J.A., David Watt J.A., and M.L. Benotto J.A., File No. CA C52256) 124 W.C.B. (2d) 207. LT CASELAW

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