Law Times

PAGE 18 permission to attend, observe and report on recount to increase public confidence in integrity and validity of recount proceeding. Terms ad- dressing concerns regarding secrecy of ballot and integrity of process imposed. Hearing held for disputed ballots in four categories: (i) ballots appearing to be marked by a num- ber; (ii) a ballot on which the voter had written words in addition to a mark; (iii) ballots marked by voters over the candidate's name; and (iv) ballots marked by voters for more than one candidate. Validity of dis- puted ballots determined in accor- dance with jurisprudence directing inquiry as to voter intention before rejection. Judicial Recount of the 40th General Election in the Electoral District of Kitchener-Waterloo held on October 14, 2008 (Re) (Nov. 19, 2008, Ont. S.C.J., Gordon J., File No. C-1000-08) Order No. 008/345/081 (32 pp.). Family Law Motion by father for order requir- ing mother to bring children back to Ontario or for interim custody. Mother and father were involved in matrimonial proceedings over many years. Mother had interim custody of children on consent. Father was convicted of harassing mother and was required to stay away from her as part of probation. Mother alleged father breached probation order more than 20 times. Mother took children to another province without notice to anyone in order to escape father's abuse. Motion granted. Mother was required to return to Ontario with children by specified date or else father was to be granted in- terim custody. Mother had not demonstrated material change that would have justified relocating with children. Most recent consent order was made after father had been convicted. Mother provided no evidence of continuing harass- ment after that time. Mother did not indicate any problems with access. Improvement in mother's financial situation after move was not relevant as nothing indicated particular problems prior to move. Mother's unilateral conduct reflect- ed fundamental lack of apprecia- tion of importance of maintaining children's relationship with father. Liao v. Liao (Nov. 28, 2008, Ont. S.C.J., Gordon J., File No. D-17,642/07) Order No. 008/336/058 (5 pp.). CUSTODY No material change justifying mother's relocation with children Judgments And Orders RES JUDICATA Change to Rule gave rise to special circumstances for re-adjudication notwithstanding res judicata insurer returned to court to seek order under revised rule motions judge held matter was res judicata. Insurer's appeal allowed. Assuming res judicata applied, motions judge erred in principle in finding there were no special circumstances that called for matter to be re-adjudicat- ed. Change in rule 36.01 gave rise to special circumstances. Motion judge also erred in finding respon- dents would be prejudiced. Any prejudice could be addressed by re- quiring insurer to pay all costs and expenses associated with examina- tion and by trial judge's discretion whether to admit the evidence. TD Insurance Home and Auto v. Sivakumar (Litigation Guardian of) (Dec. 11, 2008, Ont. C.A., Rosenberg, Sharpe and Blair JJ.A., File No. C48634) Appeal from 166 A.C.W.S. (3d) 564 allowed. Order No. 008/350/035 (4 pp.). Limitations TORT Second action governed by limitation provisions that Infant sustained serious head injury. Mother told hospital staff child in- jured by fall down stairway. Several months later family took position injuries sustained in automobile accident. Three experts retained by family's auto insurer opined that in- juries likely caused by fall. Insurer's application under rule 36.01 of Rules of Civil Procedure (Ont.), for order for examination of experts to preserve their evidence dismissed because insurer not "party" as no action commenced. Civil Rules Committee subsequently amend- ed rule to provide for definition of party to include party to pending or intended proceeding. When Plaintiff born on November 13, 1982 and suffered serious brain in- jury which rendered him mentally incompetent. Medical malpractice lawsuit commenced on his behalf on November 13, 2002 against ob- stetrician who provided plaintiff's mother with medical care dur- ing pregnancy and hospital. New Limitations Act, 2002 (Ont.), came into effect on January 1, 2004. On May 17, 2006 second lawsuit com- menced on plaintiff's behalf against doctors who treated plaintiff after his birth while he was in hospital. Complete hospital chart in relation to plaintiff's birth received by plain- tiff's litigation guardian in February 2003. Review of chart would have disclosed postnatal care plaintiff re- ceived from defendants in second action. In spring of 2007 plaintiffs moved to consolidate two actions. Some of defendants in second ac- tion moved to have it struck out. On December 18, 2007 motion judge found, based on provisions of Act, that second action com- menced outside limitation period. Plaintiffs' consolidation motion dismissed and second action struck out. Plaintiffs' appeal to Ontario Court of Appeal allowed. Proper application of transition provisions in s. 24 of Act leads to conclusion that second action governed by limitation provisions that operated prior to January 1, 2004. Section 24(5) applies because former limi- tation period did not expire before January 1, 2004 and limitation period under Act would apply if claim based on act or omission that took place on or after January 1, 2004. Claim discovered prior to January 1, 2004. Litigation guard- ian discovered claim in February 2003 when she obtained hospital records. Her knowledge can be imputed to plaintiff for purpose of discovering claim although not for purpose of triggering running of limitation period. Former limi- tation period applies and includes postponement or suspension of limitation period due to mental incapacity. Second action brought in time. Section 21 of Act, which provides that court has no discre- tion to add parties after expiration of limitation period, does not apply to second action since it was not statute-barred. St. Jean (Litigation Guardian of) v. Cheung (Dec. 3, 2008, Ont. C.A., operated before new Limitations Act (Ont.) came into effect CASELAW Rosenberg, Borins and Gillese JJ.A., File No. C47654) Appeal from 155 A.C.W.S. (3d) 1212, 85 O.R. (3d) 275 allowed. Order No. 008/343/101 (20 pp.). Torts CONVERSION Defendants wrongfully converted equipment Action for damages for wrong- ful conversion. Plaintiff was trustee in bankruptcy. Plaintiff took possession of three pieces of equipment owned by bank- rupt. Defendant, which stored equipment, sold equipment to third parties. Action allowed. Plaintiff was awarded $19,320. Defendants clearly wrongfully converted three pieces of equip- ment. Defendants took equip- ment knowing it did not be- long to them and disposed of it. Defendants did not pay anything for equipment, and received no bill of sale. Bluestar Enterprises Ltd. (Trustee of) v. Shaver (Dec. 8, 2008, Ont. S.C.J., Glithero J., File No. 05-21425-SR) Order No. 008/345/124 (15 pp.). Action for damages for injury sustained as result of slip and fall. Plaintiff sustained right shoul- der injuries when she slipped and fell on sidewalk in front of con- dominium building. Action dis- missed. Condominium was not occupier of municipal sidewalk. Condominium had no control or ownership over sidewalk. There was no evidence that anything flowed from condominium's property on to adjoining municipal sidewalk. Mere assumption of snow clearing from municipal sidewalk was not enough. Coulson v. Hamilton (City) (Dec. 9, 2008, Ont. S.C.J., Glithero J., File No. 03/9597) Order No. 008/345/101 (15 pp.). NEGLIGENCE Condominium was not occupier of municipal sidewalk ONTARIO CRIMINAL CASES Appeal GROUNDS Inadequacy of reasons for Appeal from order dismissing motion to quash order for com- mittal for trial. Grounds that the judge that determined the reasons for committal were in- adequate erred in conducting his own review of the evidence to determine whether it justified committal. Appeal dismissed. Inadequacy of reasons given for committal for trial is not per se a jurisdictional error. Application judge's review of the evidence satisfied him that a consideration of the reasons in the context of the evidence left no doubt as to the basis upon which the ac- cused was committed for trial. If he engaged in a review of the evi- dence to support the committal, he applied a test that was overly favourable to the accused. R. v. Suissa (Dec. 9, 2008, Ont. C.A., Doherty, Rosenberg and Cronk JJ.A., File No. C48216; C48217) Order No. 008/358/063 (3 pp.). committal for trial not per se jurisdictional error www.lawtimesnews.com Appeal by the accused from her conviction for second degree mur- der. Accused and the victim had a dispute and the victim ransacked her belongings. She also said that if the accused was present she would harm her. Accused was warned the victim was looking for her and was going to harm her. She confronted the victim and fatally stabbed her in the chest with a knife. She re- lied on self-defence, provocation, intoxication and lack of intent to commit murder. Accused raised three grounds related to the trial judge's instructions to the jury. Appeal dismissed. Judge did not err in his instructions regarding the use the jury could make of the post-offence conduct. Such con- duct was relevant to two issues that pertained to whether the accused was guilty of murder or man- slaughter. Those issues were in- toxication and provocation. Judge did caution the jury regarding the use of post-offence conduct. His instructions accurately conveyed the fundamental point that the jury should exercise care in the use of such conduct and should not assume that the evidence sup- ported a finding of guilt for mur- der. Accused's trial counsel did not object to the instruction on such conduct. Well-established that the common sense inference instruc- tion should be given to the jury in a case like this one. Instruction that was provided did not displace the burden on the Crown to prove the case beyond a reasonable doubt. Instruction was adequate. It brought home to the jury that they were to consider all evidence that pertained to the mens rea required for murder. It left them with the clear understanding that they were to consider the cumu- lative effect of all of the evidence. Trial counsel also did not object to this aspect of the charge. R. v. Gould (Dec. 16, 2008, Ont. C.A., Sharpe, Blair and Rouleau JJ.A., File No. C47226) Order No. 008/352/167 (6 pp.). Trial judge did not err in instructions to jury SENTENCE APPEAL Trial judge erred in failing to make requested DNA and SOIRA orders March 16, 2009 • Law TiMes Ont. C.A., Doherty, Rosenberg and Cronk JJ.A., File No. C48596) Order No. 008/358/069 (2 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Superior Court had jurisdiction Application by accused to find that amendments to Criminal Code violated ss. 7 and 11(d) of Canadian Charter of Rights and Freedoms and should not be ap- plied retroactively. Accused ap- plied directly to Ontario Court of Justice as opposed to Superior Court. Application dismissed. This was not proper case for Superior Court to assume juris- diction. Trial courts were in bet- ter position to consider Charter applications and Superior Courts should only exercise jurisdiction in cases where it was more appro- priate forum. There were no fac- tors in this case that bring it into jurisdiction of Superior Court. R. v. Khan (Jan. 14, 2009, Ont. S.C.J., MacDonnell J., File No. M 169/08) Order No. 009/015/068 (6 pp.). over challenge to constitutionality of Criminal Code provisions SEARCH AND SEIZURE Inventory search of vehicle did not breach s. 8 of Charter Crown appealed sentencing judge's decision not to order DNA samples, registration under the Sex Offender Information Registration Act ("SOIRA") and forfeiture of accused's computer. Appeal allowed, accused to pro- vide DNA sample and register as required by the SOIRA provisions for ten years. Trial judge had no ju- risdiction to exempt accused from the operation of "Christopher's Law", the provincial legislation. Trial judge did not err in declin- ing to order forfeiture of the com- puter as he was entitled to con- clude a further penalty by was of forfeiture was not needed in the circumstances. There was no evi- dence forfeiture may have been justified because the offensive ma- terial on the computer could not be totally removed from the com- puter. Trial judge erred in failing to make the requested DNA and SOIRA orders as they were both mandatory subject to exemptions that were not established. No basis for holding that the impact on ac- cused's privacy, security or liberty flowing from the orders would be grossly disproportionate to the public interest served by making the order. R. v. F. (R.W.) (Dec. 22, 2008, Appeal by accused from convic- tions for possession of marijuana and possession of cocaine for the purpose of trafficking. Accused stopped for "stunt driving". Officers conducted inventory search of vehicle before impound- ing it. Officer found cocaine, marijuana, cell phones and a digital weigh scale contained in nylon CD case which was found inside black bag. Accused argued that his s. 8 Charter rights were breached and that fruits of search should have been excluded from evidence. Appeal dismissed. Trial judge concluded that police were conducting inventory search and the search was not a sham or con- ducted for an improper or ulterior purpose. For inventory searches to be meaningful police must be able to search and itemize the contents of objects such as purses, wallets, and bags. Search of the black bag and its contents, and the CD case and its contents was reason- able and justified. Search did not constitute breach of accused's s. 8 Charter rights. R. v. Wint (Jan. 20, 2009, Ont. C.A., Winkler C.J.O., Rosenberg and Moldaver JJ.A., File No. C49340) Order No. 009/021/224 (5 pp.). Defendant was arrested without warrant in his apartment for mis- chief to data and possession of child pornography. While defen- dant consented to officers entering his apartment, officers' movement into defendant's apartment from where they stood upon entering was warrantless search. Officers looked into defendant's computer without consent. Evidence seized from computer was excluded from trial due to violation of de- fendant's s. 8 Charter rights. R. v. Choudhry (Jan. 12, 2009, Ont. S.C.J., Pattillo J., File No. CR-08-PR000508-0000) Order No. 009/014/114 (26 pp.). Evidence seized from computer was excluded Defences

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