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PAGE 18 utes of Settlement. Parties were in common law relationship for four and one-half years and wife had three children from previ- ous relationship. Parties, both represented by lawyers, were in process of negotiating settle- ment but had some remaining issues in dispute. Wife advised husband that she was unable to sign anything as she was enter- ing residential alcoholism treat- ment program. Husband signed Minutes of Settlement and or- der made on that basis. Motion judge found that those Minutes of Settlement were no longer open when husband signed them as new Minutes were being contemplated and parties were not ad idem. Husband argued essential terms had been agreed upon so it was open to him to sign Minutes of Settlement. Ap- peal dismissed. Parties had con- ducted themselves as though a formal document was essential. Husband had previously made that explicit by refusing to sign when he disagreed with a single term. Wife's letter stating she was in treatment demonstrated husband knew Minutes were no longer open for him to sign. Andrews v. Lundrigan (Feb. 23, 2009, Ont. C.A., Winkler C.J.O., Rosenberg and Moldav- er JJ.A., File No. C49079) Or- der No. 009/056/073 (9 pp.). Professions Action for damages brought against hospital, doctors and nurses in connection with med- ical care provided to pregnant woman. Pregnant woman was admitted to hospital after mem- branes ruptured. Child labour had to be induced by use of oxytocin drug. Emergency cae- sarean delivery was performed after baby was determined to be in distress. Baby was born with severe health problems. Child, aged 17, had cerebral palsy and developmental and seizure dis- orders and was quadriplegic. Child's brain injury resulted from lack of oxygen for several minutes prior to birth. Action dismissed. Defendants owed duty of care to mother and child. Brain injury sustained by child at birth did not result from actions or lack of actions of defendants. Evidence did not support finding of negligence on PHYSICIANS AND SURGEONS Brain injury sustained at birth did not result from defendants' negligence caused or materially contribut- ed to child's injury. Defendants provided proper medical care. Defendants met standard of care applicable to each of them. Cause of brain injury cannot be explained or inferred from evidence. Randall v. Lakeridge Health Osha- wa (Feb. 17, 2009, Ont. S.C.J., Glass J., File No. 99660/99) Order No. 009/054/049 (39 pp.). part of defendants that Sale Of Goods REMEDIES OF BUYER Telephone and voicemail system was suited to Plaintiff was practising lawyer. Plaintiff agreed to purchase telephone and voicemail system from defendant for law office. Defendant installed system. Plaintiff claimed plaintiff was induced to purchase system by negligent misrepresentation. Plaintiff claimed system was not fit for plaintiff's intended purpose. Action was dismissed. Evidence established system was suited to plaintiff's busi- ness needs. There was no prob- lem with what was supplied or in manner it was installed. Subsequent attendances by trainer from complaint calls after initials installation were not necessarily evidence train- ing was ineffective or fell below standard of care. Evidence did not establish defendant failed to diagnose problem with sys- tem. Problems were more likely result of user issues. Problems with system were not material cause of plaintiff's inability to pay transaction levies to LPIC. Problems with system were not cause of failing of plaintiff's real estate practice. Conway v. Bell Canada (Feb. 2, 2009, Ont. S.C.J., Aston J., File No. 01-CV-220805CM3) Order No. 009/035/214 (9 pp.). plaintiff 's business needs Sale Of Land DUTY OF VENDOR Vendor breached best efforts obligation in failing to contact planning department CASELAW Plaintiff refused and struck girlfriend on arm. Girlfriend called campus police. Plaintiff was arrested and charged with assaulting girlfriend. Charge was withdrawn. Plaintiff brought action against univer- sity for damages for negligence of employees for false arrest, wrongful sault and battery, malicious prosecution and breach of rights under Canadian Charter of Rights and Freedoms. Ac- tion was dismissed. Constable was justified in arresting and charging plaintiff with assault. Arrest was not racially moti- vated. Plaintiff was not wrong- fully charged and imprisoned and Charter rights were not violated. Plaintiff did not prove plaintiff was maliciously pros- ecuted by defendant. Small v. Stec (Feb. 3, 2009, Ont. S.C.J., Jenkins J., File No. 51190SR) Order No. 009/035/224 (16 pp.). imprisonment, as- ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE Fresh evidence regarding non-disclosure of alibi evidence and witness statements was admissible on appeal from 1972 murder conviction Plaintiff agreed to purchase land from defendant. Defen- dant was to use best efforts act- ing in good faith to obtain con- sent to severance of lands from committee. Defendant did not obtain severance by closing date. Defendant claimed agree- ment was terminated. Plaintiff claimed specific performance. Action was allowed. Defen- dant breached best efforts ob- ligation in failing to contact planning department. Plaintiff established defendant's breach of contract cause plaintiff loss of chance of closing transac- tion. Claim for specific perfor- mance failed. Plaintiff did not show fair, real and substantial justification for claim for spe- cific performance. Calculation of damages was not so difficult as to be speculative. Defendant did not show plaintiff miti- gated loss by subsequent pur- chases or that plaintiff ailed to take advantage of reasonable opportunity to mitigate loss. Plaintiff was entitled to judg- ment of $1,935,500. Southcott Estates Inc. v. Toronto Catholic District School Board (Jan. 30, 2009, Ont. S.C.J., Spiegel J., File No. 05-CV- 283735PD3) Order No. 009/035/222 (32 pp.). Torts Plaintiff and girlfriend had argument. Girlfriend asked girlfriend to leave apartment. FALSE ARREST AND IMPRISONMENT Constable justified in arresting and charging plaintiff with assault Accused convicted in 1972 of 1967 murder. Conviction up- held and appeal to Supreme Court of Canada dismissed. In 2006, Minister of Justice referred matter to Ontario Court of Appeal to determine admissibility of fresh evidence and, if evidence admissible, decide matter as appeal from conviction. tarily confessed to murder in 1972. Hours later, he recanted confession and had maintained innocence ever since. Experts testified at trial that accused's psychological profile rendered confession Accused volun- able. In 1998, accused discov- ered 1968 report of investigat- ing officer referring to verified alibi. Officer now claimed he had subsequently discredited alibi. Report also referred to witness statements that con- tradicted testimony against ac- cused. Accused alleged report and statements not disclosed to trial counsel. In 2002, ac- cused obtained two new expert reports concerning reliability of confession. Appeal allowed and new trial ordered. Infor- mation about non-disclosure of alibi evidence and witness statements admissible. Cred- ible evidence suggesting of- ficer discounted alibi met by equally credible evidence to contrary. Accused established non-disclosure of report or its substance. Evidence not ad- missible on basis of trial fair- ness. Crown counsel had no obligation to disclose alibi he believed was discredited. In any event, accused did not give notice of reliance on alibi defence. However, evidence inherently unreli- www.lawtimesnews.com admissible under Palmer test. Defence counsel would have proceeded differently if aware of report. Had jury been able to assess verification and al- leged discounting of alibi and consider they could have been left with reasonable doubt about ac- cused's guilt. Confession con- tained factual inaccuracies and not so compelling that guilty verdict inevitable. Undisclosed evidence could reasonably be expected to have affected ver- dict. Defence counsel could not have learned about evi- dence through due diligence. New expert reports not admis- sible as fresh evidence, as they failed to meet cogency require- ment. Substance of reports had been put before jury through experts called at trial. Convic- tion quashed but not appropri- ate to substitute acquittal as evidence could reasonably sup- port conviction. MacPherson J.A. dissenting. R. v. Phillion (Mar. 5, 2009, Ont. C.A., Laskin, Moldaver and MacPherson JJ.A., File No. C45857) Order No. 009/068/029 (88 pp.). witness statements, Assault COMMON ASSAULT Accused only used such force as was necessary to effect arrest of complainant May 4, 2009 • Law TiMes 3811-998-07-02026-00) Or- der No. 009/071/029 (8 pp.). Charter Of Rights Trial of the accused, a police officer, for assaulting the com- plainant whom he arrested. Complainant claimed that he told a friend named A, who was being interrogated by police, to tell them to leave him alone. Accused then approached the complainant and asked him for his ant refused to provide it, was assaulted by the accused and was asked to provide it again. As he reached to provide it the accused assaulted him several times and then arrested him. Accused testified that A came out of the bar and swore at the police. He and his partner sep- arated A from his friends and spoke to him. Complainant then approached and swore at the police. Accused approached the complainant and asked him for his identification. Be- cause of the crowd and because the accused's family was in the vicinity the accused wanted to remove him from the immedi- ate location. Complainant re- fused to provide identification and swore at the accused and was arrested. Accused sprayed the complainant with pepper spray and struck the complain- ant because he resisted arrest and resisted having handcuffs being put on him. Accused found not guilty. Accused was a reliable witness while the com- plainant was not. Complainant resisted arrest by refusing to be handcuffed and the accused employed reasonable force in a potentially volatile situation to effect that arrest. Accused only used such force as was neces- sary to effect the arrest. Com- plainant was to blame for what happened. R. v. Connor (Mar. 4, 2009, Ont. C.J., Blouin J., File No. identification. Complain- allowed. Accused's right to be free from arbitrary detention and imprisonment, his right to retain counsel without delay and his right to be free from cruel and unusual punishment were violated by the length of the detention in the vehicle while being cuffed, the physi- cal discomfort he experienced and the delay in the imple- mentation of his right to coun- sel. Accused was granted a stay because no other remedy could adequately recognize the viola- tion of rights involved. R. v. Bennett (Mar. 9, 2009, Ont. C.J., Renaud J., File No. 08- 45) Order No. 009/071/018 (16 pp.). Application by the accused for a stay of proceedings because his rights under the Canadian Charter of Rights and Free- doms were violated. Accused was charged with impaired driving and having care and control while his blood alcohol level was above the legal lim- it. He drove away from a bar when he was stopped by a po- lice officer. The officer formed the belief at 2:00 a.m. that the accused was impaired. He ar- rested him at 2:10 a.m. and informally advised him of his rights, including his right to counsel. He read him his rights at 2:16 a.m.. Officer hand- cuffed the accused and placed him in the rear of the vehicle. They arrived at the police sta- tion at 2:49 a.m. but the offi- cer was told they would have to wait as there were two other in- dividuals waiting to be tested. During the waiting period the accused was left in the rear of the vehicle while being cuffed. Handcuffs were removed when the accused was brought inside the station for booking. He did not get to speak to counsel un- til 4:03 a.m.. Accused was in restraints for one hour and 40 minutes, most of the time be- hind his back, and two hours elapsed from when he was de- tained until he got to speak to counsel. Officer knew that the accused had no warrants or record and conceded that the accused was co-operative throughout. He had no con- cern about weapons. Accused suffered discomfort from be- ing ARBITRARY DETENTION OR IMPRISONMENT Length of detention in vehicle while handcuffed violated accused's Charter rights handcuffed. Application ENFORCEMENT OF RIGHTS Trial court was Accused convicted of several prostitution related offences. Section 212(1)(2.1) of Crimi- nal Code called appropriate forum for constitutional challenge tory minimum sentence of five years. Trial judge sentenced accused to five years but indi- cated that she would not have but for mandatory statutory minimum. Accused appealed for manda-