Law Times

Law Times • February 22, 2016 Page 15 www.lawtimesnews.com CASELAW unequal scrutiny. Business Development In- surance Ltd. v. Caledon May- field Estates Inc. (Dec. 7, 2015, Ont. C.A., Karen M. Weiler J.A., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C60371) Deci- sion at 253 A.C.W.S. (3d) 489 was affirmed. 261 A.C.W.S. (3d) 480. Securities Regulation REMEDIES Person or company was promoter if they, acting alone or in conjunc- tion with others, took initiative in founding, organizing or substantially reorganizing business of issuer Company O reorganized so that two business lines would be sep- arated into two publicly traded corporations, including com- pany P. Company P issued press release announcing that it had sold common shares for gross proceeds of over $82.5 million, but it later made series of correc- tive disclosures where it revealed that it had materially overstated revenues and accounts receiv- able. Company P was delisted and its shares were worthless. Applicant investor alleged that company P's revenue was ma- terially overstated in two docu- ments it released, circular and prospectus. Investor maintained that respondent bank was liable for misrepresentations because it was promoter and knowingly inf luenced release of documents. Investor brought motion for leave to commence proceedings against bank pursuant to Part XXIII.1 of Securities Act. Motion judge dismissed motion. Inves- tor appealed. Appeal dismissed. When considered in light of rel- evant text, context and legislative purpose, investor's interpretation of promoter was clearly implau- sible. Person or company was promoter if they, acting alone or in conjunction with others, took initiative in founding, organiz- ing or substantially reorganiz- ing business of issuer. Active and autonomous involvement of or- ganization or reorganization of company was required. Promot- er exercised meaningful control over reporting issuer's business. Promoter was not someone who was casually connected with is- suer but was someone who played driving role in founding issuer and exercised inf luence compa- rable to officer or director. Text, context and purpose of promoter provisions all supported conclu- sion that person or company that merely provided advice or assisted during issuer's organiza- tion or reorganization could not be promoter. Promoter must be active participant, driving force or at very heart of issuer. Expan- sive interpretation of promoter that imposed liability solely on basis of proximity to decision- makers, without any regard for actual role played by party, would not promote greater protection for investors or deter corporate misconduct. Evidence provided by investor was insufficient to justify granting leave. Evidence was insufficient to demonstrate bank took initiative in founding, organizing or substantially reor- ganizing business of companies. Evidence did not support conclu- sion bank knowingly inf luenced release of circular or prospectus. Goldsmith v. National Bank of Canada (Jan. 13, 2016, Ont. C.A., K.M. Weiler J.A., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C60615) Decision at 254 A.C.W.S. (3d) 734 was affirmed. 261 A.C.W.S. (3d) 481. Wills and Estates ESTATE ADMINISTRATION Dismissal of motion to replace respondent as estate trustee upheld on appeal Appellant brought action alleg- ing respondent sister breached fi- duciary duty she owed to mother by keeping mother in her home after she was too infirm to remain there in order to secure benefit under mother's will. Motion judge determined claim had to be advanced by mother's estate, of which respondent was sole trust- ee. Appellant's motion to replace respondent as estate trustee with herself or friend was dismissed. Appellant commenced further motion to replace respondent as estate trustee with unnamed in- dependent trustee. Motion judge dismissed motion on ground is- sue was identical to issue decided on previous motion. Appellant appealed. Appeal dismissed. Mo- tion judge did not err in dismiss- ing motion, as issue was substan- tially same as what was decided on previous motion. To allow appellant to bring another appli- cation to appoint unnamed inde- pendent trustee would be to give her second chance on same issue. Question of whether unnamed independent trustee should be appointed could have and should been raised on prior motion. Pri- or order was final. Motion judge did not err by failing to exercise discretion to permit motion to proceed. Appellant had no ten- able claim to discretionary relief and court should not exercise jurisdiction to relieve from con- sequences of issue estoppel. Heston-Cook v. Schneider (Dec. 11, 2015, Ont. C.A., Rob- ert J. Sharpe J.A., E.A. Cronk J.A., and B.W. Miller J.A., File No. CA C60516) 261 A.C.W.S. (3d) 495. ONTARIO CRIMINAL CASES Appeal GROUNDS Trial judge's decision to hear evi- dence from witness before dismissing s. 11(b) application did not give rise to reasonable apprehension of bias Accused convicted of fraud over $5,000 and two counts of utter- ing forged documents for her role in assisting "straw buyer" to obtain mortgage. Mortgagee bank suffered loss of $118,873 as result of fraud. Accused submit- ted circumstances surround- ing trial judge's Charter s. 11(b) ruling gave rise to reasonable apprehension of bias. Accused submitted trial judge should not have heard evidence from main Crown witness (afternoon of first trial day) before making her s. 11(b) ruling (start of second trial day). Accused claimed this chronology exposed trial judge to critical pieces of Crown case and this may have inf luenced her s. 11(b) ruling. Accused sub- mitted fact that trial judge deliv- ered her reasons for s. 11(b) rul- ing 15 months after application, and after hearing two more days of evidence, suggested again that her s. 11(b) ruling may have been tainted by evidence she heard. Accused appealed her convic- tion. Appeal dismissed. Trial judge indicated she was inclined to hear from first witness, after indicating that she would re- serve her decision on s. 11(b) ap- plication. This witness had trav- elled from Australia rather than attend on earlier trial date, and was subject of material witness warrant. Witness was present when argument was completed on s. 11(b) application. Crown indicated that he was content to proceed with evidence of first witness that afternoon. Defence counsel was silent. Trial judge's decision to hear few hours of evi- dence from this witness before she formally dismissed s. 11(b) application next morning did not give rise to reasonable appre- hension of bias. There was noth- ing in ruling on that application to suggest it was affected by evi- dence heard before application was dismissed. Nor did fact that s. 11(b) ruling was delivered 15 months later once trial had re- sumed raise bias concern. Dur- ing trial, rulings with reasons to follow is common and necessary practice. Reasons on s. 11(b) ap- plication in this case were very comprehensive and addressed carefully and in detail submis- sions that parties, especially accused, made at application hearing. There was not even hint ruling was coloured by evidence heard between day trial judge announced her ruling (second trial day) and day she delivered her reasons. R. v. Montoya (Nov. 17, 2015, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Par- du J.A., File No. CA C56257) 126 W.C.B. (2d) 312. DNA Identification EVIDENCE Evidence did not support inference that accused deposited his DNA on shopping bag during robbery Accused was convicted of rob- bing bank. Accused submitted trial judge erred by relying en- tirely on evidence confirming that accused's DNA was present on plastic shopping bag used in robbery to support finding of guilt in absence of any other evidence linking accused to crime. Accused appealed his conviction. Appeal allowed; conviction set aside; acquittal entered. Verdict was unreason- able. Judge, who saw witnesses and was in best position to assess their evidence, found that only evidence identifying robber was DNA evidence. Generic nature of evidence relied on by Crown was insufficient to support con- clusion that accused's DNA was deposited on plastic bag during robbery. Plastic shopping bags are commonplace, portable, dis- posable and reusable. In light of these factors, and because of generic nature of eyewitness de- scriptions relied on by Crown, eyewitness evidence simply did not go far enough to be capable of supporting inference that ac- cused deposited his DNA on shopping bag during bank rob- bery. R. v. Ahmed (Dec. 4, 2015, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., File No. CA C60160) 126 W.C.B. (2d) 375. Murder FIRST DEGREE MURDER Reasonable inference that logically arose from evidence was that kill- ing was planned and deliberate Four accused on trial for first degree murder and attempted murder. Three accused entered residence of man they heard had large amount of marijuana and cash on hand, armed with baseball bat, bear spray and duct tape, with their faces masked. Fourth accused, driver, re- mained in car. Target of robbery was seriously injured and his young friend died as result of in- juries sustained before accused f led scene, being startled by car pulling into driveway. At end of Crown's case, all four argued evidence tendered by Crown was insufficient to support Crown's assertion planned and deliberate murder had occurred, or that ac- cused were culpable for attempt- ed murder. Crown's theory was accused had plan to steal com- plainant's money and drugs and to kill any witnesses and assert- ed that deceased was murdered while forcibly confined. Accused applied for directed verdicts of acquittal on first degree and at- tempted murder. Application dismissed. Jury was entitled to assess overall manner in which events unfolded inside residence and to draw inferences from that conduct about what perpetrators of attack intended. Reasonable inference that logically arose from evidence was killing of de- ceased was planned and deliber- ate murder, and attack on com- plainant was part of planned and deliberate murder that simply was not completed. This was not inference that necessarily must be drawn, but one that may be. Jury could conclude complain- ant was held at knifepoint and beaten and forced to watch in- truders further bludgeoning al- ready fatally stricken deceased, until he revealed location of his money and drugs. Jury could accept complainant's evidence that as deceased moaned, while already subdued and duct-taped, intruders "finished him off " with additional, repeated, force- ful blows to his exposed head. Jury could infer clear intention all along was to kill deceased. Ultimately, and based on whole of evidence about what hap- pened before, during and after attack, jury could conclude what happened inside residence hap- pened according to plan; at least until man who drove into drive- way arrived. If jury concluded accused who went inside resi- dence intended to kill, and that killing was planned and deliber- ate, then they would reasonably be able to infer that driver know- ingly and intentionally partici- pated in planned and deliber- ate murder. Evidence indicated driver was part of both planning and execution of plan, and it was open to conclude he was critical in planned joint venture. R. v. Hong (Jul. 15, 2015, Ont. S.C.J., Boswell J., File No. 13325/13) 126 W.C.B. (2d) 405. Terrorism OFFENCES Trial judge did not err in instruc- tions regarding conduct element of s. 83.18 of Criminal Code Jury convicted accused of par- ticipating in or contributing to activities of terrorist group. Ac- cused attended camp organized by others for purpose of creating group to plan terrorist attacks. Accused provided some comput- er assistance to co-accused after camp concluded. Police seized documents and letters from ac- cused's room concerning jihad, radical religious views, terror- ism and violence. Accused's de- fence related to his knowledge of character and purpose of group meeting at camp. Accused's ap- peal from conviction dismissed. Trial judge did not err in in- structions of conduct element of s. 83.18 of Criminal Code. Conduct element did not require proof what accused did actu- ally enhanced ability of group to carry out terrorist activity or that risk of harm was beyond de minimis. Accused's conduct ex- pressly included in s. 83.18(a) and (b) definitions of participating in or contributing to activity of ter- rorist group. Defence at trial was directed at knowledge of charac- ter of group and not directed to actus reus of offence. Failure to include instruction sought did not give rise to reasonable likeli- hood jury misunderstood essen- tial elements of offence. R. v. Ansari (Aug. 19, 2015, Ont. C.A., G.R. Strathy C.J.O., David Watt J.A., and Glo- ria Epstein J.A., File No. CA C52883) 126 W.C.B. (2d) 401.

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