Law Times

Law Times • January 25, 2016 Page 15 www.lawtimesnews.com its owner, JT, relying on breach of s. 99(2) of Environmental Pro- tection Act, nuisance and negli- gence. Trial judge found Thorco not liable, concluding that Mid- west failed to prove waste petro- leum hydrocarbons contamina- tion lowered value of its property. She held that remedy under s. 99(2) not available since MOE had already ordered Thorco re - spondents to remediate Midwest's property. Midwest appealed. MOE intervened, contesting finding that order to remediate precluded recovery under s. 99(2) of act. Appeal allowed. Section 99(2) aimed at minimizing harm caused through discharge of pol - lutants by requiring prompt re- porting and clean-up regardless of fault, and at ensuring parties that suffer damage are compensated through statutory right to recov - ery. Trial judge's interpretation undermined legislative objective of establishing separate, distinct ground of liability for polluters and inconsistent with plain lan - guage and context of provision. MOE order and recovery under s. 99(2) not mutually exclusive. Trial judge erred in finding no com - pensable "loss or damage" under s. 99(2) established. Recent case law ref lects "polluter pays" princi- ple, which provides that whenever possible, party that causes pollu- tion should pay for remediation, compensation and prevention. Plain reading of s. 99(2) of act also suggests that parties entitled to recover full cost of remediation. Midwest not required to prove actionable nuisance in order to succeed in s. 99(2) claim. Nor did Midwest have obligation to estab - lish its property was clean when purchased. Midwest commenced action within two years of buying property and discovering con - tamination; that was all that was required. Section 99(2) of act pro- vides that action lies against own- er of pollutant and person who controls pollutant. JT, as Thorco's principal, had sole control of Thorco, which owned the waste petroleum hydrocarbons, during relevant period. Thorco was small business with day-to-day opera - tions effectively controlled by JT. Thorco and JT jointly and sever- ably liable under s. 99(2). Midwest Properties Ltd. v. Thordarson (Nov. 27, 2015, Ont. C.A., K. Feldman J.A., C.W. Hou - rigan J.A., and M.L. Benotto J.A., File No. CA C56758) Decision at 226 A.C.W.S. (3d) 1039 was re- versed. 260 A.C.W.S. (3d) 419. Personal Property LIENS Notice of sale of truck was not deficient Respondent S entered into lease with applicant for commercial dump truck in working condi- tion. S went into arrears on lease payments. S authorized repairs to truck by respondent C. When repairs were done S did not pick up truck. C asserted lien on truck. C ultimately sold truck for $48,000 without notice to appli - cant. Applicant sought damages for breach of lease agreement by S and improper sale of vehicle by C, contrary to Repair and Storage Liens Act. Application was granted and applicant was awarded damages. C appealed. Appeal allowed; application dis - missed. Application judge made several errors. Application judge erred in finding that C's notice was deficient. Notice contained statement about redemption; no - tice was on letterhead of C, which was person to whom payment was to be made; and notice was sent by named representative of C. Application judge misappre - hended evidence in finding that notice was deficient in failing to provide particulars of sale. Notice was properly served on applicant. C did not have obligation to keep truck operational while it sat in yard because repairs remained unpaid. Evidence established that sale price of truck was not im - provident. C did not have obliga- tion to repair truck before offer- ing it for sale. Correia v. Smith (Nov. 5, 2015, Ont. C.A., K. Feldman J.A., P. Lauwers J.A., and M.L. Benotto J.A., File No. CA C60185) Decision at 251 A.C.W.S. (3d) 512 was re - versed. 260 A.C.W.S. (3d) 385. Professions BARRISTERS AND SOLICITORS Negligence action against lawyer was statute-barred Plaintiff paid RBC, BMO and BNS amount in mortgage default insurance after seven residential mortgage loans went into default. Plaintiff sought to recover money if paid to approved lenders. De - fendant was lawyer who acted on purchase and mortgage loan transactions for approved lend- ers. Plaintiff claimed defendant was negligent in failing to disclose material facts to approved lenders before they advanced plaintiff in - sured loans. Plaintiff asserted that had defendant not been negligent, mortgage loans would never have been made. Plaintiff sued defen - dant. Defendant brought motion for summary judgment to have professional negligence action dismissed as statute-barred. Mo - tion granted. Action was statute- barred. Acting reasonably and us- ing reasonable diligence plaintiff ought to have discovered subro- gated solicitor's negligence claim around time it paid insurance proceeds to approved lenders for deficiency in mortgage recovery. At that time plaintiff could have made inquiries of approved lend - ers and required them to obtain defendant's report and convey- ancing file material. Canada Mortgage and Hous- ing Corp. v. Greenspoon (Nov. 9, 2015, Ont. S.C.J., Perell J., File No. CV-12-453043) 260 A.C.W.S. (3d) 392. Securities Regulation PROCEDURE Shareholder denied leave to commence action for secondary market misrepresentation Corporation S Inc. was Vancou- ver-based, publicly traded com- pany that owned and operated mining properties in China. S Inc. periodically released infor- mation about particular mining project. This information includ- ed technical reports prepared by consultants. S Inc. became subject of anonymous postings on inter- net questioning S Inc.'s informa- tion. S Inc. suffered drop in share price. British Columbia Securities Commission conducted investi- gation and identified shortcom- ings in S Inc.'s information. S Inc. was expected to take corrective action and did so. Shareholder commenced proposed class ac - tion against S Inc. for damages for statutory misrepresentation and non-disclosure and for common law misrepresentation. Share - holder brought motion for leave to commence action for secondary market misrepresentation under s. 138.8 of Securities Act. Motion dismissed. Anonymous internet posting that alleged misrepre - sentation and caused significant drop in share price could qualify as "corrective disclosure" under s. 138.3 of act. Act did not define phrase "publicly corrected" or re - quire that public correction be is- sued by corporation itself. None- theless, leave under s. 138.8 of act required that action be brought in good faith and that there was reasonable possibility that action would be resolved at trial in favour of shareholder. Good faith was es - tablished, but action had no rea- sonable possibility of success. Sec- ond consultant who prepared up- dated report indicated his figures were not materially different than those reported previously when all circumstances were taken into account. This evidence was not controverted by shareholder. Fact that commission took no further action negated suggestion that its identified deficiencies amounted to actionable negligence. Share - holder also failed to establish ma- terial change requiring disclosure. Mask v. Silvercorp Metals Inc. (Oct. 22, 2015, Ont. S.C.J., Edward P. Belobaba J., File No. 13-480848-CP) 260 A.C.W.S. (3d) 403. ONTARIO CRIMINAL CASES Breathalyzer PROOF OF BLOOD- ALCOHOL LEVEL Finding of no bolus drinking was fully supported by evidence Accused appealed his conviction for driving "over 80". Accused brought application at trial to exclude certain evidence pursu - ant to s. 24(2) of Charter alleging breaches of his rights under ss. 8, 9 and 10(b) of Charter. Alterna- tively, accused applied for remedy pursuant to s. 24(1) of Charter precluding Crown from relying on presumption of identity. Trial judge ruled that accused's rights under s. 8 of Charter had been violated, but rejected submission that his rights under s. 10(b) had been violated. Trial judge declined to grant remedy under s. 24(2) of Charter, but granted alternative remedy under s. 24(1) of Charter, precluding Crown from relying on presumption of identity. At tri - al, Crown called expert evidence from toxicologist who opined on blood alcohol concentration of accused at time of driving based on his breath samples. Accused submitted that trial judge erred in accepting expert opinion of toxicologist. Crown filed affida - vit of toxicologist on trial. Crown also called witness who adopted opinion of toxicologist and was cross-examined by counsel for accused. Opinion expressed by toxicologist in affidavit was that projected blood alcohol concen - tration of accused at approxi- mately 11:09 p.m. was 100 to 135 milligrams of alcohol in 100 mill- ilitres of blood. Appeal dismissed. Accused argued that trial judge could not draw common sense inference that accused did not engage in bolus drinking in light of reasonable hypothetical that as little as one drink could have affected projected blood-alcohol concentration. This hypothetical depended on accused falling out - side parametres of blood to breath ratio. Trial judge correctly found that there was no air of reality to this suggestion. Assumption of ratio was based on scientific in - formation upon which expert was entitled to rely. Finding that there was no bolus drinking was there- fore finding that accused did not drink 2 to 2.75 standard drinks within approximately 15 minutes of driving. This finding was fully supported by evidence which was set out in detailed and thorough reasons of trial judge. R. v. Jordaan (Nov. 2, 2015, Ont. S.C.J., Forestell J., File No. 5-55/14 SCA) 125 W.C.B. (2d) 611. Extraordinary Remedies MANDAMUS Mandamus ordered requiring justice to release sentencing decision within 30 days Application by regional munici- pality for order of mandamus to compel justice of peace to render her sentencing decision regarding one of five accused, named AN, in more timely manner. Applicant also sought order of mandamus that directed justice to accept guilty pleas of all accused. All ac - cused were charged with speed- ing offence. Joint submission was made in which all accused would plead guilty to amended charge of disobeying sign and they would each be fined $200. Justice ac - cepted AN's guilty plea and she reserved her ruling on sentence until June 15, 2016, which was nine and one-half months away. Application allowed. AN's right to be tried within reasonable pe - riod of time included right to be sentenced within reasonable pe- riod of time. That right would be infringed with nine and one-half month delay contemplated by justice's decision to reserve deci - sion on sentence. Mandamus was granted that ordered justice to release her sentencing decision within 30 days. There was no rea - son in law for justice to refuse to accept proposed resolution and guilty pleas. Mandamus was therefore issued that directed jus - tice to accept guilty pleas of other four accused. York (Regional Municipality) v. Newhook (Nov. 5, 2015, Ont. S.C.J., M.L. Edwards J., File No. CV-15-124046) 125 W.C.B. (2d) 635. Sentence PREVENTIVE DETENTION Designated offender designa- tion upheld on appeal Accused appealed his designation as dangerous offender and sen- tence of indeterminate sentence imposed after his conviction on number of offences arising out of kidnapping and sexual assault of 12-year-old girl. Based on ac - cused's history of violence, his manipulation of women and girls, and his psychiatric diagnoses, sentencing judge found his risk of re-offending was significant. One doctor said this risk was moder - ately high while another doctor said it was moderate. Both doctors expressed concern about accused living in community. Accused would need to take anti-androgen medication to reduce his sex drive and would also need number of other treatments and tight su - pervision. Doctor reported that accused had personality disorder with antisocial traits. Sentenc- ing judge noted that accused had completed treatment programs while serving previous penitentia- ry sentences, yet he had commit- ted more serious predicate offence of sexual assault and kidnapping of 12-year-old girl while still on probation. Appeal dismissed. On appeal, accused asserted that in concluding that he could not trust accused's assurances about taking anti-androgen medica - tion, trial judge failed to take into consideration accused's history of compliance with counselling while in penitentiary on number of previous occasions in 2006 and 2008. There was no merit to this submission as trial judge specifi - cally referred to fact that accused had participated in treatment programs before and had gone on to escalate his violent behaviour when he was released. Trial judge considered possibility of long- term supervision order and how it could operate in accused's case and gave full and careful reasons for his conclusion that accused could not be supervised in com - munity and why compliance with medication could not be assured in accused's case: accused was reluctant to take medication, and his assurances that he would take it were unreliable. Finding of un - reliability was based not only on accused's tendency to lie, but also on his escalated violent behaviour following his programs in peni - tentiary. Trial judge's assessment and conclusion was entitled to significant deference on appeal, absent clear legal error, clear and material factual error, or unrea - sonable finding. Court saw no er- ror in trial judge's analysis or his conclusion. R. v. Tippett (Oct. 19, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., K. Feldman J.A., and Paul Rouleau J.A., File No. CA C51754) Decision at 97 W.C.B. (2d) 494 and 97 W.C.B. (2d) 554 were affirmed. 125 W.C.B. (2d) 691. CASELAW

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