Law Times

Law Times • November 24, 2008 (Sep. 22, 2008, Ont. S.C.J., Gordon J., File No. C-229/07) Order No. 008/270/008 (19 pp.). Corporations OPPRESSION Plaintiff was deprived of right to become shareholder Application for oppression rem- edy for wrongful deprivation of shareholder rights or as partner in business. Plaintiff alleged that he and personal defendant agreed that each would have ownership interest in business. Plaintiff alleged that personal defendant was improperly de- priving him of rightful interest. Application allowed. Plaintiff was awarded compensation to- talling $1,373,444.70. Plaintiff had equitable rights. Plaintiff was promised 40 percent inter- est ownership in business by per- sonal defendant by way of verbal agreement. Plaintiff acted on promise and contributed finan- cially to company. Personal de- fendant deprived plaintiff of his right to become shareholder. Fedel v. Tan (Sep. 16, 2008, Ont. S.C.J., Cumming J., File No. 06-CL-6716) Order No. 008/267/038 (39 pp.). SHARES Purchase agreement was approved on terms ruled tapes could be shown to plaintiff and jury for purpose of impeachment. Video evidence on two of the four tapes was rel- evant to plaintiff's credibility as it could undermine testimony. Prejudicial value of tapes did not outweigh probative value. Plain- tiff would have opportunity to explain actions on tapes and call evidence in response. Howe v. Garcia (Sep. 23, 2008, Ont. S.C.J., Walters J., File No. 00-1771) Order No. 008/273/051 (9 pp.). International Law HUMAN RIGHTS Mother was ordered to return children to Romania Commission sought declaration respondents did not comply with securities law. Order cancelling securities held by respondents was refused. Compensation or- der was granted in favour of five individuals. Security interest in securities held be respondent in respondents' favour in priority to security interest granted by respondents to related or non- arms length party. One respon- dent was no longer owner of shares. Commission sought to set aside terms of order and replace them with term cancelling secu- rities held by respondents. Re- spondent who sold shares died. Respondent's death and sale of shares did not constitute new evidence warranting variation of order as far as cancellation was concerned. Purchase agreement was approved on terms. Ontario (Securities Commis- sion) v. von Anhalt (Sep. 19, 2008, Ont. S.C.J. (Comm. List), Pepall J., File No. 04-CL- 5613) Order No. 008/267/066 (11 pp.). Evidence Ruling on voir dire relating to admissibility of videotape evi- dence for purpose of impeach- ing witness testimony. Plaintiff injured in accident caused by defendant and sought general and pecuniary damages. Plaintiff claimed various injuries and de- fendant hired investigator who conducted video surveillance on plaintiff. Defendant sought to have tapes admitted to impeach plaintiff 's testimony. Plaintiff ar- gued tapes inadmissible because they did not establish incon- sistency with evidence at trial. Activity on tapes contradicted plaintiff 's evidence that she was incapable of working, house- work, gardening and other ac- tivities to degree testified. Court ADMISSIBILITY Videotapes admissible for purpose of impeachment Application for order for return of his children. Parties were born in Canada, but lived in several countries. Children were born in England. Parties last cohabitated in Romania. Mother brought children to Canada from Ro- mania on visit, and did not re- turn them. Application granted. Mother was ordered to return children to Romania. Mother's removal of children and their re- tention in Canada was wrongful. Children were habitually resi- dent in Romania. Father did not consent or acquiesce in retention of children in Canada. Kirby v. Thuns (Sep. 17, 2008, Ont. S.C.J., Linhares de Sousa J., File No. FC-08-1270-1) Order No. 008/267/035 (17 pp.). Landlord And Tenant Motion by applicant tenant corporation for declaration that sub-lease between applicant and respondent corporate land- lord had been renewed. Parties entered into sub-lease which included renewal. Tenant had conversation with principal of applicant corporation in which she stated intention to extend lease. Tenant approached appli- cant corporation several times regarding renewal terms. A cou- ple of months later, tenant was informed that lease would not be renewed. Motion granted. Lease was renewed as per option. Ap- plicant tenant did exercise its op- tion to renew in accordance with terms of lease. Conduct of re- spondent was sufficient to waive requirement of strict compliance by way of written notice. 1651788 Ontario Inc. v. 1628093 Ontario Inc. (Sep. 10, 2008, Ont. S.C.J., Gilmore J., File No. CV-08-090520-00) Order No. 008/259/046 (7 pp.). RENEWAL OF LEASE Conduct of landlord sufficient to waive written notice requirement Mental Health INCOMPETENT PERSONS Lawyer removed as guardian of property Motion for order removing law- yer as power of attorney, and for passing of accounts. Applicants were children of women diag- nosed with Alzheimer's disease. Woman appointed lawyer as her guardian of her property and personal care. On consent, law- yer was ordered to pass accounts. Lawyer did not pass accounts. Motion granted. Lawyer was re- moved as guardian of property and was ordered to pass accounts. Woman did not have capacity to CASELAW give power of attorney for prop- erty. There was strong evidence of neglect on part of lawyer. Teffer v. Schaefers (Sep. 12, 2008, Ont. S.C.J., Fragomeni J., File No. CV-07-0379-00) Order No. 008/267/017 (31 pp.). Personal Property Security SECURITY INTERESTS Failure to comply with manda- tory provisions of Personal Property Security Act (Ont.) constituted fail- ure of perfection of security interest There was failure of perfection of security interest granted in GSA over collateral not properly de- scribed in financing statement. Appellants brought appeal from disallowance by trustee of estate of D. Inc. of their claim as se- cured creditors over accounts and equipment of D. Inc.. Ap- pellants sold shares of stock to D. Inc.. D. Inc. gave promissory note to appellants covering part of purchase price. D. Inc.'s note was secured by General Security Agreement ("GSA") granting appellants security over its ac- counts and equipment. Appel- lants registered financing state- ment under Personal Property Security Act (Ont.) ("PPSA"), describing collateral as "Other" only and inserting therein "Gen- eral Security Agreement dated June 28, 2007" under optional description of collateral. D. Inc. was later declared bankrupt and defaulted on repayment terms of note. Appeal dismissed. Ap- pellants did not comply with mandatory provisions of PPSA and regulations, having failed to correctly describe collateral in which they claim security inter- est under financing statement. This constitutes failure of per- fection of security interest grant- ed in GSA over collateral not properly described in financing statement. Duelsing Transportation Inc. (Re) (Sep. 25, 2008, Ont. S.C.J., Registrar Nettie, File No. 32-1056216) Order No. 008/273/057 (5 pp.). Professions Appellant's appeal was allowed in part. Order of Appeal Panel was set aside. Hearing Panel's find- ing of professional misconduct was set aside and new hearing was ordered. Appeal Panel's or- der that set aside Hearing Panel's penalty of disbarment was up- held. Twelve-month suspension was to be substituted in event re- spondent was found guilty. Or- der was amended. Respondent's cross-appeal on penalty was al- lowed. Penalty of three months was substituted. Respondent's fresh evidence in form of affi- davit from respondent's son was not admitted. It was available to be put before Appeal Panel, was of limited evidentiary value and could not reasonably have been expected to affect result. Penalty of 12-month suspension was much heavier than penalties in comparable cases. There were mitigating factors. Reprimand would not have been sufficient. Penalty of 12-month suspension was excessive and unreasonable. BARRISTERS AND SOLICITORS Penalty of 12-month suspension was excessive www.lawtimesnews.com Law Society of Upper Canada v. Neinstein (Sep. 25, 2008, Ont. S.C.J. (Div. Ct.), Swin- ton, Matlow and Murray JJ., File No. 117/05) Order No. 008/273/047 (6 pp.). ONTARIO CRIMINAL CASES Defences GENERAL Trial judge obligated to consider defence having air of reality Accused appealed conviction for sexual assault with weapon. Ac- cused fondled and kissed com- plainant while co-accused pen- etrated her vagina digitally and with bottles. Witnesses testified that accused was drunk. Ac- cused was convicted as a party. Trial judge did not specifically refer to intoxication as defence and accused did not raise it. Ap- peal dismissed. Because intoxi- cation defence had air of reality, trial judge obligated to consider it. Trial judge's reasons revealed awareness of defence to specific intent aspect of mens rea for party offence. R. v. Wobbes (July 29, 2008, Ont. C.A., MacFarland, Rou- leau and Epstein JJ.A., File No. C45728) Order No. 008/214/024 (13 pp.). MISTAKE Defendant sought leave to ap- peal and for stay of driving pro- hibition. Defendant asserted that after he was arrested he Duty counsel not considered government official PAGE 15 was told by duty counsel not to provide breath sample. Subse- quently he was found guilty of refuse to provide breath sample. Defendant claimed he relied upon duty counsel and that con- stituted officially induced error. Duty counsel was not considered government official, a necessary element to defence. Applications were dismissed. R. v. Pea (Sep. 22, 2008, Ont. C.A., Gillese J.A. (in Chambers), File No. C49328; M36754) Order No. 008/281/076 (10 pp.). Courts JURISDICTION Accused permitted to be absent from trial Application by accused for per- mission to be absent from trial. Accused's trial extended over several months and he had been present throughout. Accused asked to be absent for one day. Crown did not object to request but raised concern about court's jurisdiction to excuse accused during taking of evidence. Ap- plication allowed. Pursuant to s. 650(2)(b), trial judge has dis- cretion to permit accused to be absent from whole or any part of his trial. However, an ac- cused has no absolute right to be absent; permission must be sought because right of accused to be present is also duty. In this case, accused was fully aware of consequences of his decision to be absent and was content that his counsel would represent his interests. R. v. Drabinsky (Aug. 12, 2008, Ont. S.C.J., Benotto J., File No. P592/06) Order No. 008/231/042 (5 pp.). 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. 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