Law Times

Law Times • march 21, 2016 Page 15 www.lawtimesnews.com CASELAW Divisional Court quashing her appeal on issue of jurisdic- tion of Law Society hearing panel. Motion dismissed. Rule 22 of Rules of Civil Procedure (Ont.) required that parties must agree to invoke special case procedure for determi- nation of point of law. ey must agree on point of law, and they must submit their stated case with elements re- quired by prescribed form. As necessary preconditions were absent, lawyer's motion under R. 22 to state special case to determine jurisdic- tion issue was dismissed. Coady v. Law Society of Upper Canada (Dec. 10, 2015, Ont. C.A., K. van Rensburg J.A., In Chambers, CA M38163) 262 A.C.W.S. (3d) 513. Civil Procedure PARTIES Motion to identify three defendants by their real names was granted Plaintiff alleged he was assault- ed when he tried to verbally assist bouncer at defendant night club. Plaintiff named several Doe patrons and three Doe employees in statement of claim, and said he did not learn names of employees until examination for discov- ery of club's owner. Plaintiff previously requested iden- tity of employees from defen- dant, who refused, brought R. 3.10 motion but only learned names of two Doe patrons who had been criminally charged and obtained Crown brief, but it did not name em- ployees. Motion by plaintiff to correct misnomer by amend- ing statement of claim to identify three Doe employees by their real names. Motion granted. Statement of claim described position of Doe employees, who were clearly identified by owner in exami- nation for discovery. ere were only four employees working that night, and three Doe employees would have clearly recognized themselves in descriptions in statement of claim, as two were work- ing on patio and one was club manager. ere was no preju- dice to addition of named de- fendants and this was proper motion to correct misnomer. General v. 515679 Ontario Ltd. (Jan. 4, 2016, Ont. S.C.J., T. Maddalena J., Hamilton 11- 29212) 262 A.C.W.S. (3d) 332. Conflict of Laws FOREIGN JUDGMENTS Peruvian divorce recognized for purposes of determining marital status of parties in Canada Parties were born and raised in Peru and they were married in Peru. Parties moved to Can- ada but separated six months later. Parties both became permanent residents of Can- ada and eventually acquired Canadian citizenship. Parties jointly decided to pursue di- vorce in Peru, which they ob- tained. On understanding that Peruvian divorce met test for recognition in Canada, wife remarried. Legal opinion wife received was based on mis- understanding that husband was residing in Peru when divorce was granted and that parties had been separated for at least one year, which was incorrect. Husband decided to remarry and he required le- gal opinion that Peruvian di- vorce would be recognized in Canada but he had difficulty obtaining opinion. Husband applied for divorce. Applica- tion dismissed. Peruvian di- vorce should be recognized pursuant to s. 22(3) of Divorce Act (Can.) for purposes of determining marital status of parties in Canada. Wife provided expert opinion that Peruvian divorce was valid under Peruvian law. ere was no evidence of any fraud having been committed that might have affected jurisdic- tion of notary who granted Peruvian divorce. Both par- ties consented to divorce in Peru, and there was no evi- dence that either party was denied natural justice. ere was real and substantial con- nection between both parties and Peru, as they were both born and raised in Peru; were married in Peru; they lived in Peru at time of marriage until they arrived in Canada; they only lived in Canada for six months before they separated; they continued to be Peruvian citizens at time of divorce; they had extended family in Peru; had valid Peruvian na- tional identification docu- ments; and had state pensions in Peru. Real and substantial connection was not restricted to current links to country but it was connections that exist- ed when divorce proceedings were commenced and when divorce was granted that were most relevant to analysis. Par- ties were more closely con- nected to Peru when divorce proceedings were initiated and when divorce was granted. Wilson v. Kovalev (Jan. 8, 2016, Ont. S.C.J., Deborah L. Chap- pel J., 2855/14) 262 A.C.W.S. (3d) 349. Injunctions INTERLOCUTORY RELIEF Funds in trust were sub- ject to injunction Plaintiff corporation had commenced action against defendant, a former key em- ployee, as well as her husband and son, seeking a variety of relief on the basis they were involved in fraudulent scheme of unauthorized payments, bonuses, and use of corporate funds for personal expens- es. Defendants denied any fraud and counterclaimed for wrongful dismissal, mental distress and loss of reputation. Defendant wife and husband had also been charged crimi- nally with fraud and posses- sion of property obtained by fraud. Defendants asserted they had paid $310,000 for legal services in the civil and criminal matters thus far, as well as $100,000 received from family, and were unemployed and had exhausted their funds so could not pay for services for pending criminal trial, which was scheduled to last 30 days. Plaintiff obtained order for CPL, interlocutory injunc- tion and disclosure, which was granted on consent as no opposition was filed. Defen- dants had sold their residence and $148,405.86 net proceeds remained in trust. Motion by defendants for order permit- ting proceeds from sale of their residence to be released from trust so they could cover the cost of their defence in criminal proceedings. Mo- tion dismissed. Relief sought engaged equitable principles. Interlocutory injunction ap- plied to all of defendants' as- sets, including real estate, and had been granted on con- sent. Consent interlocutory injunctions were intended to remain in place until trial, and funds in trust were sub- ject to that injunction. Mo- tion was essentially request to set injunction aside, but defendants had not tendered evidence to meet test under R. 59.06(2)(b) and (d) of Rules of Civil Procedure (Ont.), so did not meet threshold re- quired and, in any event, their disclosure was incomplete. Ball Media Corp. v. Imola (Jan. 11, 2016, Ont. S.C.J., D.J. Gor- don J., CV-12-118) 262 A.C.W.S. (3d) 467. Negotiable Instruments PROMISSORY NOTES Judge's interpretation of promis- sory note entitled to deference JB sold her shares in company to appellant ACCE, which was controlled by her ex-husband, appellant RB. Part of purchase price was paid by vendor take back note (VTB) for $1.85 million payable to respon- dent. RB guaranteed VTB. Aer some initial payments payable in May and July 2012, appellants were required to make 16 quarterly payments in amount of $100,000 each, commencing in October 2012, with final payment of $50,000 in October 2016. VTB contained acceleration clause providing that, upon default of two quarterly pay- ments, entire amount of note became due and payable. Ap- plication judge found that ac- celeration clause was triggered when appellants failed to make October 2014 and Janu- ary 2015 payments. Although appellants eventually made October 2014 payment, they remained in default of January 2015 payment. Appellants ap- pealed. Appeal dismissed. Ap- plication judge's interpretation of promissory note was enti- tled to deference. His conclu- sion that failure to make full payment due October 2014 and payment due January 2015 amounted to default in making two quarterly install- ments was reasonable. While part payment was made, ap- pellants did not cure full de- fault. Written notice of default had been given to appellants. 1871335 Ontario Ltd. v. Acce International Ltd. (Jan. 7, 2016, Ont. C.A., Pepall J.A., Pardu J.A., and Roberts J.A., CA C60923) 262 A.C.W.S. (3d) 508. Torts LIBEL AND SLANDER Defence of qualified privilege applied Parties both owned commer- cial condominiums in con- dominium complex. Plaintiff was real estate agent and de- fendant was locksmith. De- fendant was elected to first board of directors of complex in 2008. He sought election to the condominium's board again in 2011. Prior to annual general meeting (AGM) he obtained number of proxies from other unit holders, in- cluding that of H, who signed on behalf of his wife, who was in Hong Kong. At AGM de- fendant was informed that another party, C, was seeking to register proxies, including one from H's wife. C said she obtained proxies from plain- tiff. Defendant was re-elected. When he later showed C's proxy to H, he was told that it could not be genuine. Defen- dant subsequently sent email to 14 people questioning mo- tivation of plaintiff 's company in using forged proxy and stat- ing that further investigation was needed. Proxy turned out to be genuine. Plaintiff sued defendant for defamation. Defendant relied on defence of qualified privilege. Action dismissed. Impugned words, in their ordinary and plain meaning, asserted that proxy was forgery that was obtained by plaintiff and provided to C as part of organized plan to subvert election of direc- tors. Meaning was obviously defamatory of plaintiff. How- ever, defence of qualified privilege applied. Defendant believed proxy to be forgery because he had received infor- mation from H that signature on proxy could not be that of his wife. Defendant acknowl- edged source of his belief in email and indicated need for further investigation. Defen- dant honestly believed words used in email were true. ere was no evidence of malice. Wan v. Lau (Jan. 7, 2016, Ont. S.C.J., D.L. Corbett J., CV-11- 424289) 262 A.C.W.S. (3d) 540. Ontario Criminal Cases Defences DE MINIMIS NON CURAT LEX No error in applica- tion of de minimus prin- ciple in assault case Accused and female com- plainant were in relationship. Accused asked complainant if he could borrow her car to drive to work. Complainant refused because accused was suspended driver but she of- fered to drive him to work. Accused refused offer and he grabbed complainant by her shoulders, pushed her down onto couch and told her that relationship was over if she did not give him keys. Complain- ant threw keys on couch and le home. Accused chased complainant and he caught her and put his arms around neck. Witness saw accused choking complainant and he told him to let her go. Accused denied that he choked com- plainant. Trial judge found that accused's version of events was contradicted by evidence of complainant and witness and he rejected accused's evi- dence. Judge also found that principle of de minimis non curat lex did not exoner- ate accused for even though pressure he inflicted on com- plainant's neck lasted for only 10 seconds it was serious be- cause it started to interfere with complainant's breathing. Accused appealed conviction for assault. Appeal dismissed. Judge did not err in his appli- cation of de minimis principle. R. v. Wojcik (Nov. 17, 2015, Ont. S.C.J., André J., SCA(P) 471/14) 127 W.C.B. (2d) 101. ENTRAPMENT Words spoken by under- cover officer were part of bona fide inquiry Accused was convicted of traf- ficking in cocaine aer selling drugs to undercover officer with accused subsequently seeking stay based on entrap- ment. Initial comments by undercover officer in first cell phone contact aer receiv- ing anonymous information about accused were essentially "I hear you sell drugs" to which accused immediately re- sponded that he had both co- caine and heroin for sale. Ap- plication dismissed. Evidence of undercover officer was un- contradicted that he initially asked accused if he sold drugs. Accused chose not to testify either on trial or on stay ap- plication and did not meet onus to prove entrapment on balance of probabilities. Words spoken by undercover officer were part of bona fide inquiry and legitimate inves- tigatory step. Response by ac- cused added confirmation to anonymous source informa- tion. When accused offered to sell both cocaine and heroin in response to request for co- caine he was not importuned. R. v. Charles (Dec. 23, 2015, Ont. S.C.J., B.P. O'Marra J., CR- 15-90000141-0000) 127 W.C.B. (2d) 132.

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