Law Times

lAw Times • April 16, 2012 relation to unauthorized modi- fication to common elements. Corporation sought order that owner comply with provisions of s. 98 of Condominium Act, 1998 (Ont.). Lien registered on title to unit was validly registered and owner had yet to pay interest and legal costs of $550. Notice of sale issued was flawed in that it included unsecured debts for unauthorized alteration of roof. Amounts were in default more than 90 days prior to registra- tion of certificate of could not form part of amount required to be paid under notice of sale. Notice of sale was not valid. New notice of sale was required to be issued in proper form. Amounts were owed by owner for expenses incurred to turn on water and unauthor- ized alteration of roof. Expenses formed charges that could be added to common expenses for unit but Corporation was out of time to recover costs. Owner was ordered to enter agreement with Corporation with respect to alteration of roof forthwith. Channa v. Carleton Condominium Corp. No. 429 (Dec. 14, 2011, Ont. S.C.J., Polowin J., File No. 09-46682/10-49099) 210 A.C.W.S. (3d) 801 (22 pp.). lien and Torts provided by members at face value Defendant was credit reporting agency. Plaintiff claimed defen- dant breached duty by stor- ing and distributing incorrect credit information about plain- tiff provided by Tarion without considering accuracy of infor- mation. Plaintiff claimed defen- dant breached duty by failing to properly investigate accura- cy of Tarion information after plaintiff disputed information. Defendant was consumer report- ing agency within meaning of Consumer Reporting Act (Ont.). Defendant as consumer report- ing agency had recognized legal duty to plaintiff as consumer. Claim was properly character- ized as negligence claim. Claim for defamation was not appli- cable because provision of credit card report fell within realm of qualified privilege. Action pro- ceeded only as negligence claim. Claim was dismissed. Defendant did not breach duty by accept- ing credit card information from Tarion without further consid- eration. Defendant set up rea- sonable procedures in attempt to ensure accuracy and fairness of information that it stored and distributed. Defendant was entitled to accept data provid- ed by members at face value. Plaintiff ' LIBEL AND SLANDER Defendant entitled to accept data mation regarding consumer debt should not be accepted into database until purported credi- tor obtained judgment against consumer was not fair or just. Act did not proscribe report- ing on debt prior to judgment being obtained. Defendant was not required to adjudicate dis- putes. Data came from approved member and there was no obvi- ous error on face of information. Defendant initiated investigation within reasonable time. Creditor s suggestion that infor- fulfilled duty to investigate and carried out investigation hon- estly, accurately, with skill and diligence and in accordance with statutory obligations. Spencer v. Equifax Canada Inc. (Dec. 7, 2011, Ont. S.C.J., Henderson J., File No. 09-11133) 210 A.C.W.S. (3d) 810 (17 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT CAUSING BODILY HARM Accused charged with assault causing bodily harm and assault on two different women as well as possession of marijuana for which he pleaded guilty. Second com- plainant testified to coming upon accused holding complainant by hair and slamming her head into pavement. Complainant testified that when she tried to intervene accused punched her in mouth. Accused was pushed down by complainant, got up and egged her on to fight before leaving in cab that she had called. Accused found guilty. Bodily harm com- plainant testified that Court found evidence of accused's mother totally unbelievable CASELAW evidence to make out service. R. v. Driffield (Nov. 18, 2011, Ont. C.J., Feldman J.) 98 W.C.B. (2d) 721 (6 pp.). Charter of Rights Accused charged with rob- bery with handgun. Issue at trial was identification and accused applied for exclusion of evidence. Complainant went to go have ciga- rette in his car when three males jumped into his vehicle, pistol whipped him with butt end of gun, robbed him of his wallet contain- ing $100 and took his car keys. Complainant was assaulted and threatened. Attackers then drove off in four door red Honda civic. One of attackers left cellphone in complainant' amounted to taking control over accused prior to arrest RIGHT TO COUNSEL No orders from officers which number of cellphone gave police name of accused who was on police system associated with search warrant. Accused matched one of assailant' s vehicle. Checking when police drove by address they had on file they saw vehicle also matching description of assail- ants. When police later pulled over that vehicle driver fled on foot and driver' s description and tained inch and a half cut to top of her head requiring three stitches to close wound and in addition, she scraped her elbow while fall- ing to ground while in clutches of accused sustaining minor injury to her elbow which was cleaned up at hospital. Nurse witness confirmed injuries. Court found evidence of accused' to have been present and to have witnessed altercation occur in sim- ilar fashion to version claimed by accused, totally unbelievable and did not even believe she was there. Court rejected accused' s mother, who had claimed Court accepted version of events given by complainants. R. v. Fournier (Jan. 3, 2012, Ont. C.J., Villeneuve J., File No. 11-309) 98 W.C.B. (2d) 688 (10 pp.). s evidence. Breathalyzer Court found officer's testimony ADMISSIBILITY OF CERTIFICATE Accused charged with impaired driving and driving "over 80". Officers pulled over accused' just barely sufficient evidence to make out service vehicle when he was seen to be unable to keep his vehicle in its lane and then failed to stop for red light. Accused was arrested for impaired operation and brought to detachment to give breath sam- ples. Accused gave breath read- ings of 190. Officer testified he served accused with "exact cop- ies" of Certificate of Qualified Technician and he showed him that they were exactly same and reviewed them with him, but told court that accused refused to sign his name as having received cer- tificate. Certificate of Analysis admissible, accused guilty of driv- ing "over 80", but count stayed in light of impaired operation con- viction. Court found officer' timony was just barely sufficient s s tes- she sus- mined. Officers attended accused's residence. Accused's family mem- s identity was never deter- bers declined to sign statement saying accused had been home all day. Picture of accused' and daughter was found on phone. Same picture of young man that was on phone was found on wall in accused' s girlfriend admitted, accused guilty. Police officer' s residence. Evidence erly characterized as introductory and preliminary, as intended to determine how to proceed there- after and to rule out accused as a potential suspect. Questioning was respectful and police did not set out to deliberately interrogate accused while depriving him of right to counsel. There were no threats, promises, oppression or police trickery. Prior to accused' s questions could be prop- arrest, there were no orders from officers which amounted to tak- ing control over him. Officers did not have reason to detain accused until he was arrested when it was determined that phone belonged to accused. Until that time accused had been co-operative with police and there had been no reason to Caution him. R. v. Barnett (Dec. 14, 2011, Ont. S.C.J., Backhouse J., File No. 09-30000734-0000) 98 W.C.B. (2d) 740 (12 pp.). s Drug Offences IMPORTING Accused was arrested when she returned to Canada from working vacation in Panama. About two pounds of cocaine was discovered in her suitcase. Accused main- tained that she had no knowledge that illicit drug was in her posses- sion. Accused was striper and per- formed "extras" as prostitute and therefore maintained she was not in financial difficulties. Accused claimed that she was brought to for whom accused supposedly brought items even existed Little evidence that woman www.lawtimesnews.com Panama to entertain a client and on her return trip a friend of that client asked her to bring some of her things on flight home with her because she had over packed and that she had put those things into her luggage. Accused' was searched and arrested before accused was. Accused denied that she abandoned her suitcase out of last-minute concern that she might be caught with bottles con- taining cocaine. Accused found guilty. Only rationalinference that could be drawn was that accused did know, prior to entering coun- try, that her luggage contained prohibited substance. Court' conclusion as to accused's lack s "client" s of credibility as a witness arose for number of reasons including on account of inconsistencies in her testimony, and between tes- timony and out-of-court utter- ances, implausibility of aspects of her story, established deception on some matters, and her manner of presentation at trial. Accused' prior criminal record for dishon- esty was also relevant to her truth- fulness. There was little evidence that woman for whom accused supposedly brought items even existed. R. v. Harris (Jan. 16, 2012, Ont. S.C.J., Hill J., File No. CRIMJ(F)245/10) 98 W.C.B. (2d) 706 (36 pp.). s Jury Application by accused, who was charged with murder, to chal- lenge prospective jurors for cause and to ask them specific ques- tions. Accused claimed challeng- es were necessary for him to have fair trial because publicity of his arrest, statements in media from June and July of 2008 that victim' commencement date significant Passage of time between media reports of arrest and trial EMPANELLING murder had been solved and cir- cumstances of her death might impact negatively on jurors' abil- ity to determine his guilt or inno- cence without bias or prejudice. Application dismissed. Passage of time between media reports of arrest and trial commencement date, which was in February 2012, was so significant that no realistic possibility of prejudice could exist. Opening address at commencement of trial, which would stress accused' s tion of innocence, would deal with possibility of juror partial- ity that might exist from media reports about this case. R. v. E. (C.) (Jan. 9, 2012, Ont. S.C.J., Desotti J., File No. 1525/10) 98 W.C.B. (2d) 713 (9 pp.). s presump- Sentence Accused was remorseless psychopath who was beyond rehabilitation FRAUD AND FALSE PRETENCES Accused sentenced to 10 years' incarceration after being con- victed of fraud over $5,000 and theft over $5,000 after he used his position as power of attorney that his 86-year-old mother had given him and put unauthor- ized mortgages on her property for his own use. Crown had also proven that accused used same fraudulent PAGE 19 his lawyer out of moneys on two separate occasions having gone so far as to lie about his mother' proven that accused attempted to obstruct justice by influencing his mother' s death. Crown had also when, despite no contact order, she visited him in jail. This was not first time that accused had been convicted of defrauding his mother. Accused' s testimony at trial significant assets before accused's s mother had actions and had lost everything to point of needing to stay at shelter because of his thefts. Accused was 57 years old with 69 prior convictions for crimes of dishonesty as well as a num- ber of similar convictions U.S.A. Court found accused was remorseless psychopath who was beyond rehabilitation and gave sentence far in excess of what Crown was requesting. R. v. Kaziuk (Jan. 24, 2012, Ont. C.J., Baldwin J., File No. 09-4027) 98 W.C.B. (2d) 759 (20 pp.). in Appeal by Crown from sentence imposed on accused young per- son. Accused was born on April 19, 1993. On July 15, 2010 she had altercation with complain- ant, who was her roommate. She threatened to kill complainant and threw several kiwi fruits at her. Those objects struck com- plainant. Accused was subject to probation order when this occurred. She was charged with assault with weapon and other offences. Accused pleaded guilty to common assault and with failing to comply under s. 137 of Youth Criminal Justice Act (Can.). She was sentenced to two years of probation. Major issue in appeal was validity of condition of optional counsel- ing in probation order. Since sentencing accused was doing well. She attended counseling for anger management. She was Sentencing judge wanted counselling to be meaningful which would only occur if voluntary Young Persons SENTENCE and she attended all necessary pre-natal classes. Accused com- pleted 41.5 hours of 80 hours of community service that she had to do. Appeal dismissed. It was unfortunate that sentenc- ing was delayed for six months. Considering accused's age and fact two seven months pregnant adjournments were appropriate. Sentencing judge exercised her discretion correctly. She want- ed counseling to be meaning- ful and that would only occur if counseling were made volun- tary. Sentence was proper since accused' that Crown consented to of three adjournments, scheme to defraud voluntarily attended counseling and she appeared to be doing well in her life at present. Weapons prohibition was not necessary as this offence did not involve a weapon. Crown did not raise issue of weapons prohibition and DNA order at original sentenc- ing hearing and court would not allow it to be raised now. R. v. F. (J.) (Dec. 23, 2011, Ont. S.C.J., McDermot J., File No. CR-10-Y177) 98 W.C.B. (2d) 784 (9 pp.). s situation improved, she LT

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