Law Times

Law Times • December 15, 2008 Motion for leave to appeal from order dismissing motion for or- der striking statement of claim. Statement of claim for damages for defamation did not contain any allegation that defendants published alleged defamatory material. Prior to hearing sub- missions, motion judge indicated he was loathe to strike out state- ment of claim. Motions judge stated that plaintiff entitled to have day in court and entitled to statement of defence. Motions judge asked counsel if he had any submissions and counsel for defendants stated that action should be struck. Motions judge indicated that action would not be struck. Application for leave to appeal granted. Order incon- sistent with leading authorities that stress importance of clear and concise pleadings particu- larly in defamation actions. Also good reason to doubt correct- ness of order made. Underlying issue whether fact party is self- represented warranted disregard of principles of pleading of con- siderable importance. Kambulow v. Toronto Airport Christian Fellowship (July 17, 2008, Ont. S.C.J., Sproat J., File No. 75/08) Order No. 008/205/036 (6 pp.). PLEADINGS Order dismissing motion to strike statement of claim was inconsistent with leading authorities Contracts Trial judge held appellants jointly and severally liable to respondent L. in sum of $49,424 and to re- spondent D. in sum of $34,119 and it was declared that they held sum of $46,447 in trust for benefit of L.. No palpable and overriding error in trial judge's assessment of amounts owing to respondents. Trial judge did not err in imposing personal li- ability on appellant for amounts owed to respondents. Neither contracts in issue nor any oth- er relevant business document mentioned numbered company. At no time during currency of contracts were parties ad item as to involvement of corporate contractor. However, trial judge erred in imposing constructive trust. Constructive trust remedy was sought by respondents to protect against possible bank- ruptcy of one or both of appel- lants. No evidence of pending or even intended bankruptcy of either appellant. Finding of con- structive trust could not stand. Pacitti v. 1439200 Ontario Inc. (Oct. 27, 2008, Ont. C.A., MacPherson, Cronk and Roule- au JJ.A., File No. C47386) Deci- sion at 158 A.C.W.S. (3d) 402; 62 C.L.R. (3d) 144; 30 B.L.R. (4th) 116 was varied. Order No. 008/301/117 (3 pp.). BUILDING CONTRACTS Trial judge erred in imposing constructive trust Family Law SUPPORT No evidence that father willfully unemployed Action regarding child support. Mother and father separated in February 2004 and had two children of marriage. Father's annual income $22,000 from employment insurance benefits. Father laid off from employment as construction electrician at end of December 2007. Father registered with trade union and actively looking for work. Father ordered to pay monthly child support of $335 commencing January 1, 2008. Not reasonable to average father's past income to arrive at current income figure. No evidence that father willfully unemployed. Likely that father would return to work in future, at which time support obliga- tions could be revisited based on change in circumstances. Kajorinne v. Kajorinne (July 8, 2008, Ont. S.C.J., Pierce J., File No. FS-05-0075-DA) Order No. 008/199/088 (20 pp.). Action regarding spousal sup- port. Interim separation agree- ment provided for spousal sup- port. Husband's obligation to pay spousal support terminated effective January 1, 2008 and father to be credited for any over-payment of child and spou- sal support for 2008 and arrears reduced accordingly. At time of trial, wife had more income than husband. Spousal Support Guidelines suggested that no spousal support be paid at hus- band and wife's income levels in any range. Court would not have hesitated to order spousal support if husband's income had been at historical levels. Sig- nificant disparities in incomes of husband and wife during mar- riage. Wife had assumed role of homemaker and caregiver to children. Fresh application could be brought to deal with support issues if either party had mate- rial change in circumstances in future. Spousal Support Guidelines sug- gested that no support be paid Kajorinne v. Kajorinne (July 8, 2008, Ont. S.C.J., Pierce J., File No. FS-05-0075-DA) Order No. 008/199/088 (20 pp.). Limitations DISCOVERABILITY Motions judge erred in granting summary judgment dismissing claims on basis that they were statute-barred CASELAW A.C.W.S. (3d) 405 allowed. Or- der No. 008/288/107 (4 pp.). Professions BARRISTERS AND SOLICITORS Motion to stay discipline Motion by applicant to stay dis- cipline proceedings currently be- fore hearing panel of Law Society of Upper Canada pending dispo- sition of application for judicial review. Discipline proceedings commenced in November 2007 had been in progress for eight months over course of some thir- ty hearing dates. Only remain- ing steps in were for applicant to file written submissions followed by filing of respondent's reply, fi- nal deliberations and decision of panel. Motion dismissed. Given that hearing virtually completed and full right of appeal from de- cision of panel existed, applicant failed to establish either balance of convenience in her favour or that she would suffer irreparable harm should hearing be allowed to progress to conclusion. As to late disclosure of materials af- fecting applicant's preparation of defence in disciplinary hearing, applicant could address issue in closing submissions before panel and request reopening of hear- ing as well as pursuing matter on appeal if necessary. Coady v. Law Society of Upper Canada (July 18, 2008, Ont. S.C.J. (Div. Ct.), Archibald J., File No. 335/08) Order No. 008/205/070 (5 pp.). proceedings pending judicial review was dismissed ONTARIO CRIMINAL CASES Charter Of Rights FUNDAMENTAL JUSTICE Attorney General's power to appeal could not be divested by Crown Attorney's office Appellants G. and his minor daughter B. were involved in motor vehicle accident on De- cember 11, 1999. G. allegedly sustained serious personal inju- ries, including soft tissue injuries to his neck and lower back. It was alleged that B. was also severely injured in collision. Appellant commenced negligence action on September 4, 2002. Motions judge erred in granting summa- ry judgment dismissing claims on basis that they were statute- barred pursuant to two-year lim- itation period established under s. 206 of Highway Traffic Act (Ont.). Parties agreed that mo- tion judge erred by dismissing B.'s claims. Motion judge also erred by dismissing G.'s claim for non-pecuniary damages. Genuine issue for trial existed as to when G. learned or through exercise of reasonable diligence ought to have learned that he had cause of action against re- spondents for general injuries under threshold. Also, issue of whether G.'s pecuniary damages claim was statute-barred was best resolved on full record. Grewal v. Ivany (Oct. 10, 2008, Ont. C.A., Doherty, Cronk and MacFarland JJ.A., File No. C48237) Appeal from 162 Crown applied for leave to appeal accused's conditional sentences for dangerous driving causing death. Accused pleaded guilty. Crown counsel undertook not to pursue appeal if conditional sentences imposed. Applica- tion allowed. Attorney Gen- eral's statutory power to appeal could not be divested by Crown Attorney's office. Crown's trial counsel could not bind Attorney General's discretion to appeal. Granting leave was not abuse of process violating s. 7 of Charter. Plea agreement not dependent on undertaking. Accused's reli- ance on undertaking tempered by other considerations. R. v. Ryazanov (Oct. 2, 2008, Ont. C.A., Laskin, Simmons and Epstein JJ.A., File No. C47317) Order No. 008/280/289 (15 pp.). RIGHT TO FAIR TRIAL Accused police officer entitled to disclosure of disciplinary investigation records sought disclosure of investiga- tion of professional board as well as threat assessment prepared by police and his personnel files at work. All notes and statements created by officer in disciplinary matter were ordered disclosed. However, threat assessment and employee files were not relevant. Application for stay of charges was dismissed. R. v. Hayward (Oct. 3, 2008, Ont. S.C.J., Boswell J., File No. 08-117) Order No. 008/288/047 (10 pp.). Evidence ADMISSIBILITY Autopsy photos were not admissible Accused was charged with second degree murder, several counts of attempted murder and various weapons charges. Crown sought ruling on admissibility of two pieces of evidence it proposed to introduce at trial: four autopsy photographs of deceased show- ing entry and exit wounds and evidence from sister of deceased, who was with deceased prior to shooting but did not see event itself. Accused did not dispute cause of death or object to foren- sic pathologist being called and asked questions about nature of wounds. Evidence ruled inadmis- sible. Since none of salient facts respecting manner of death was disputed by accused there was little probative value in autopsy pictures. There was measure of prejudicial effect as photographs would cause discomfort to ju- rors. It was not apparent that deceased's sister saw anything relevant to actual shoot-out. Probative value of testimony was doubtful though prejudicial po- tential in creating atmosphere of PAGE 15 high emotion and of clouding jurors' judgment was high. R. v. S-R. (J.) (Oct. 3, 2008, Ont. S.C.J., Nordheimer J.) Or- der No. 008/302/025 (6 pp.). Sentence DRIVING OFFENCES Not important that label Crown appealed accused's condi- tional sentences of two years less a day, two years' probation and four-year driving prohibitions for dangerous driving causing death. Accused were speeding and passing each other when one crashed into taxi at intersection, killing driver. Accused pleaded guilty, expressed remorse and were youthful first offenders with positive persistence reports. Sentences included one year of house arrest, one year of curfew and 150 hours of community service. Appeal allowed. Sen- tencing judge did not fail to treat accused's sober, conscious choice to drive dangerously as aggravat- ing. Judge properly considered factors relied on by Crown in support of position that accused were racing. Not important that label "racing" not assigned to conduct. Sentences were de- monstrably unfit. Conditional sentences could satisfy denunci- ation and general deterrence but conditions and length of driving prohibitions were insufficient. House arrest extended to two years and driving prohibitions extended to seven years. R. v. Ryazanov (Oct. 2, 2008, Ont. C.A., Laskin, Sim- mons and Epstein JJ.A., File No. C47317) Order No. 008/280/289 (15 pp.). "racing" not assigned to conduct by sentencing judge LT Obtain Copies of Judgments to copies of original decisions Your 24/7 connection caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. Via E-mail Cost per case $17.50* sales@canadalawbook.ca Via Mail Cost per page $0.60* Minimum charge $10* Plus postage Via FAX Via Courier Cost per page $2.50* Minimum charge $10* Cost per page $0.60* Minimum charge $10* Plus courier charges CaseLaw on Call • order form Attention: Photocopy Service: Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages Accused faced multiple charges of sexual assault and sexual ex- ploitation due to allegations of former stepdaughter. Defendant was police officer and also being disciplined before Professional Standards Bureau. Accused www.lawtimesnews.com Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code:______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 *Add 13% PST & GST on all orders

• Cover
• Remembering Irwin
• Benchers Diary
• Focus On Criminal Law