Law Times

Law timeS • SEPTEMBER 29, 2008 Guidelines and provided that father would no longer be able to claim tax deduction for child support. Separation agreement did not include special provi- sions respecting financial obli- gations of parties. Fallis v. Garcia (May 27, 2008, Ont.S.C.J., Mossip J., File No. FS-06-058202-00) Order No. 008/154/122 (24 pp.). PROPERTY It was not appropriate to vary equalization payment Appeal by husband from de- cision setting aside marriage and ordering husband to make equalization payment of $5.3 million to wife. Parties mar- ried in 1996, had two children, and separated in 2003. Parties entered into marriage contract two days prior to marriage. Trial judge found that husband failed to make full disclosure of his significant assets, that his disclosure was incomplete and inadequate, and that failure to make full disclosure was delib- erate attempt to mislead wife. Appeal dismissed. It was not appropriate to vary equaliza- tion payment. Section 5(6) of Family Law Act (Ont.) was not engaged. It was not appropriate to consider decrease in value of husband's assets subsequent to valuation date. Husband could have disposed of his shares to hedge against setting aside of contract. No ordinary creditor should share burden of debtor's reversal of fortune. LeVan v. LeVan (May 15, 2008, Ont. C.A., Doherty, Borins and MacFarland JJ.A., File No. C46049) Appeal from 82 O.R. (3d) 1; 32 R.F.L. (6th) 291 with supplementary reasons at 82 O.R. (3d) 1 at p. 76; 32 R.F.L. (6th) 359 dismissed. Order No. 008/141/034 (24 pp.). Judgments And Orders Master erred in dismissing mo- tion to set aside registrar's or- der to dismiss action for delay. While master applied correct principles, she made two errors of fact, one of which was caused by deficiencies in material be- fore her, as disclosed in new material filed on appeal. There was no prejudice to respondent if dismissal was set aside and sig- nificant prejudice to appellant. While solicitor did not move as promptly as she should have, motion to set aside was sched- uled within six months of her learning of dismissal. This was not inordinate delay. Master's order set aside and registrar's dismissal of action set aside on term that appellant must either set action down for trial or ar- range status hearing within 60 days. Gao v. de Kayser (June 6, 2008, Ont. Div. Ct., Swinton J., File No. 14/08) Appeal from 164 A.C.W.S. (3d) 695 allowed. Or- der No. 008/162/195 (5 pp.). SETTING ASIDE Registrar's dismissal of action should have been set aside Pensions H.B. provided pension plan for its employees. H.B. sold one of SURPLUS Trial judge erred in finding equitable right to rateable portion of surplus its divisions. Employees of that division became employees of successor employer. Successor employer established pension plan for transferred employees. Respondents transferred em- ployees brought action for decla- ration that H.B. had improperly taken contribution holidays and paid pension plan expenses from its pension plan into successor pension plan. Trial judge erred in declaring that transferred em- ployees had equitable right to rateable portion of actuarial sur- plus in fund at time of sale and that H.B.'s failure to transfer that portion of surplus consti- tuted breach of trust. H.B. had no obligation to transfer surplus from its ongoing pension pan. Trial judge did not err in hold- ing that H.B. was entitled to pay plan expenses from fund. After 1984, as result of further amendment of trust agreement, all plan and fund expenses, in- cluding trustee funds, could be paid from fund and they were. Action dismissed. Burke v. Hudson's Bay Co. (May 20, 2008, Ont. C.A., Doherty, Weiler and Gillese JJ.A., File No. C44742) Appeal from 145 A.C.W.S. (3d) 160; 51 C.C.P.B. 66; 25 E.T.R. (3d) 161 with supplementary reasons at 149 A.C.W.S. (3d) 878; 54 C.C.P.B. 43; 26 E.T.R. (3d) 142 was al- lowed. Order No. 008/142/097 (30 pp.). Sale Of Land UNDERTAKING No error in requiring compliance with undertaking to obtain permission to register easement CASELAW were not negligent in operation of their bicycle were not borne out by evidence. Evidence es- tablished that R.J. was travelling too fast for road conditions and was not keeping proper lookout. Oakville's failure to keep road in proper repair was substan- tial contributing factor to acci- dent. Liability apportioned 60% to Oakville and 40% to R.J. and N.J. Johnson v. Milton (Town) (June 4, 2008, Ont. C.A., Moldaver, Cronk and Blair JJ.A., File No. C45852) Appeal from 150 A.C.W.S. (3d) 504; 25 M.P.L.R. (4th) 17 was allowed in part. Order No. 008/157/070 (18 pp.). CASES Contempt Of Court ONTARIO CRIMINAL GROUNDS Defendant's failure to disclose information was in contempt of order Application judge did not err in law in ordering E to comply with its undertaking to pro- ceed to obtain city's permission to register easement over Block 392. Order that TKA's Certifi- cate of Pending Litigation in re- lation to Block 392 be vacated and discharged was stayed until balance of judgment was execut- ed. If certificate was discharged before easement was registered, E. would be able to close its sale of townhouses to its purchasers without notice of TKA's interest. TKA's easement would be un- enforceable against townhouse owners. Ami v. Elm Thornhill Woods Inc. (June 11, 2008, Ont. C.A., Doherty, Borins and MacFar- land JJ.A., File No. C47846) Decision at 160 A.C.W.S. (3d) 564 was varied. Order No. 008/164/068 (19 pp.). Torts NEGLIGENCE City's failure to keep road in proper repair was substantial contributing factor to accident R.J. was killed and his wife N.J. seriously injured when they lost control of their tandem bicycle while proceeding downhill to- wards single lane bridge and eventually collided with rock embankment. Trial judge de- termined that Town of Oakville was entirely responsible for ac- cident and that R.J. and N.J. were blameless. To extent that R.J. and N.J. expert witness gave impermissible opinion evi- dence, Oakville suffered no ap- parent prejudice. However, criti- cal findings that led trial judge to conclude that R.J. and N.J. Plaintiff moved for order find- ing defendant and non-party in contempt of order, inter alia, prohibiting disposition of ve- hicle. Plaintiff obtained default judgment against defendant and then obtained order prohibiting disposition of vehicle sought to be recovered in satisfaction of judgment. After order made, lien on vehicle was registered, then discharged. Ownership was then transferred to individual non- party and then his corporation, without knowledge of plaintiff. Plaintiff demanded non-party disclose location of vehicle and warned him not to dispose of ve- hicle as defendant's agent. Non- party sold vehicle to strangers to litigation. Motion granted in part. Defendant's failure to disclose information about loca- tion of vehicle was in contempt of order. Non-party not in con- tempt, as no evidence that he received notice of order before lien registered. It could not be determined that defendant dealt with non-party as agent. Valani v. Garrick (June 13, 2008, Ont. S.C.J., Spence J., File No. 07-CV-329694PD3) Order No. 008/189/104 (9 pp.). Election Offences GENERAL Crown failed to prove beyond reasonable doubt that accused intended to affect election election. Accused found not guilty. Crown failed to prove beyond reasonable doubt that accused intended to affect elec- tion through leaflet or interview. Evidence showed accused used complaints about candidate as means of attacking union execu- tive. Evidence showed accused only intended to solicit union members. Even if accused made statements knowing they were false, essential element of of- fence not established. R. v. Clarke (May 13, 2008, Ont. C.J., De Filippis J., File No. 998 06 10556) Order No. 008/141/010 (12 pp.). Evidence Accused appealed conviction for first degree murder. Accused claimed that when deal involv- ing purchase of contraband li- quor fell through, he lured vic- tim to farm, intending to steal purchase money. Accused testi- fied that victim died when tree fell from trailer and struck him. Accused stole money and buried body. Accused became involved in fictional murder plot staged by undercover police officers to obtain incriminating evidence about victim's disappearance. Appeal allowed and new trial ordered. Trial judge erred in ad- mitting all evidence respecting fictional plot as similar fact evi- dence. Only evidence necessary to understand accused's alleged admissions about victim should have been admitted. Prejudicial effect exceeded probative value. Trial judge relied on similarities not sufficiently distinctive to SIMILAR FACTS Trial judge erred in admission of similar fact evidence PAGE 23 compel inference of intention, planning and deliberation and failed to account for significant dissimilarities in context. R. v. Fiorino (July 28, 2008, Ont. C.A., Laskin, Rosenberg and La- Forme JJ.A., File No. C36009) Order No. 008/211/074 (24 pp.). Mens Rea WILFUL BLINDNESS Evidence did not support conclusion that accused wilfully blind as to whether complainant was harassed Accused appealed conviction for criminal harassment. Accused and complainant involved in family law proceedings. Accused parked vehicle outside com- plainant's workplace and took photos. Trial judge accepted accused's explanation that pur- pose was to gather evidence for civil case and that accused did not know that complainant was harassed by conduct. However, trial judge found accused was wilfully blind. Appeal allowed. Considering evidence in context and trial findings, it could not be concluded that accused en- gaged in conduct being wilfully blind to whether complainant was harassed. Not found that accused followed complainant or tried to make her aware of his presence to annoy her, nor that he was warned that complainant considered behaviour to be ha- rassing. No explanation for why complainant did not seek re- straining order in Family Court if she was fearful. R. v. Wease (May 16, 2008, Ont. S.C.J., Gunsolus J., File No. 042663) Order No. 008/141/002 (8 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: Accused charged under s. 91 of Canada Elections Act with making false statement of fact in relation to personal character or conduct of federal election candidate with intention of af- fecting results of election. Can- didate was president of union. 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