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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Charter Of Rights ENFORCEMENT OF RIGHTS Where police knowingly and In course of police interrogation on different matter, accused, aged 71, made incriminating statement respecting sexual activities with three young persons. Statement and subsequent similar statement were made without accused be- ing properly informed of right to counsel pursuant to s. 10(b) of Canadian Charter of Rights and Freedoms. On third questioning, months later, accused was properly advised of right to counsel and re- fused to talk about sexual incidents until police told him they knew of previous statement. Accused then made similar statement. Third statement was not excluded at trial and accused was convicted of sex- ual interference. Conviction was upheld on appeal. Appeal allowed. Third statement was tainted by Charter breaches that marred earli- er statements. Third statement was part of same transaction or course of conduct as earlier statements. Police knowingly and deliberately made use of earlier statement that they had obtained from accused in manner infringing Charter. This was sufficient to taint subsequent statement and cry out for its ex- clusion pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms. R. v. Wittwer (June 5, 2008, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ., File No. 32130) Appeal from 219 C.C.C. (3d) 449 allowed. Order No. 008/161/052 (16 pp.). deliberately used earlier statement obtained in violation of Charter, subsequent statement was tainted and therefore excluded CIVIL CASES Arbitration ONTARIO JURISDICTION Terms of arbitration agreement applied and action stayed Parties entered agreement for sup- ply of air charter services for de- fendant team. Plaintiff claimed defendant did not pay for services provided. Plaintiff brought mo- tion for order validating service of statement of claim and setting aside notice of action dismissal. Plaintiff sought judgment for US$125,000. Defendant brought motion for order that purported service of statement of claim was invalid and further order dismiss- ing or permanently staying action. Plaintiff argued arbitration agree- ment was not engaged because there was no dispute because de- fendant did not advise reasons for non-payment. Plaintiff's argu- ment was rejected. Terms of agree- ment applied. Plaintiff's motion to validate service did not need to be dealt with. Action was stayed. Par- ties were to proceed to arbitration in accordance with agreement. Sport Hawk USA Inc. v. New York Islanders Hockey Club (May 5, 2008, Ont.S.C.J., Wilson J., File No. 05-CV-303286PD3) Order No. 008/128/032 (4 pp.). Civil Procedure CLASS ACTIONS Leave to appeal decision Statement of claim alleged that D., through vertical conspiracies with its distributors and certain Tier 1 manufacturers in automotive industry, unlawfully fixed prices of engineering resins it produced for use in automotive parts. Pro- posed class included person who purchased resins directly from D., and not just persons who acquired resins through one of its autho- rized distributors. Motions judge certified action as class action in respect of D.'s pricing and distri- bution arrangements with its three authorized distributors. Motion judge established common issues and narrowed proposed class by restricting it to purchasers required by customer to use only engineer- ing resins manufactured by D. or its authorized distributors exclud- ing three named distributors. No reason to doubt correctness of mo- tion judge's decision. Motions to grant leave to appeal by plaintiff to enlarge class and by defendants to restrict it dismissed, as well as mo- tion for leave to appeal on com- mon issues of loss and liability. Axiom Plastics Inc. v. E.I. Du- Pont Canada Co. (May 16, 2008, Ont. Div. Ct., Kiteley J., File No. 11-2008; 12-2008) Leave to appeal from 160 A.C.W.S. (3d) 221; 46 C.P.C. (6th) 234; 87 O.R. (3d) 352 was refused. Order No. 008/143/090 (19 pp.). certifying action for unlawful price fixing was refused DISCOVERY School records were producible under rule 30.10 of Rules of Civil Procedure (Ont.) September 15, 2008 • Law times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. ing to infant defendant. Motion was allowed. Plaintiff's pleadings made records relevant and materi- al. School records were producible under rule 30.10 of Rules of Civil Procedure (Ont.). Court was or- dering guardian to provide consent and therefore guardian was not in breach of duty to child. There was no evidence as to circumstances in which police collected information from child. Only trial judge could exclude evidence on this ground. Lee v. Toronto District School Board (May 5, 2008, Ont.S.C.J., Fergu- son J., File No. 100792-99) Order No. 008/128/010 (5 pp.). INTERPLEADER Appeal by law firm from interpleader order was allowed on liability would render dam- ages trial unnecessary. Bifurcation would likely result in considerable savings in litigation costs and court time. Bifurcation would minimize delays without causing real preju- dice to plaintiffs. Kovach (Litigation Guardian of) v. Kovach (May 2, 2008, Ont.S.C.J., Chapnik J., File No. 01-CV-219386CM4) Order No. 008/128/046 (9 pp.). Constitutional Law CHARTER OF RIGHTS Appeal from decision striking causes of action in challenge to Appeal by law firm from inter- pleader order requiring them to pay $139,130 into court instead of $87,487.14. Clients had paid $139,130 to law firm in trust. Law firm billed clients $51,642.86 and recovered this amount from trust account. Remainder of funds in trust account became subject of dis- pute. Law firm sought interpleader order for payment of $87,487.14 into court. Appeal allowed. Law firm was not disinterested stake- holder in funds it recovered from trust account. Interpleader order was therefore not available with re- spect to additional $51,642.86. In addition, clients had not requested order that $51,642.86 be paid into court. Marks & Marks LLP v. Galetta Renewable Energy & Environmen- tal Network Co-operative Corp. (Green) (Apr. 18, 2008, Ont. C.A., Moldaver, Cronk and Blair JJ.A., File No. C47105) Order No. 008/119/229 (3 pp.). SEVERANCE Master erred in holding bifurcation could never be ordered in actions where jury notice filed Plaintiff claimed infant defendant assaulted plaintiff in schoolyard while at school. Plaintiff and infant defendant were seven years old at time of incident and were in grade two. Motion was for production of school and police records relat- Defendant reversed passenger van from private driveway into path of vehicle travelling on road. Defen- dant pled guilty to failing to yield to right of way of other vehicle. Minor plaintiffs were passengers in defendant's van. Defendants sought to have issue of liability tried first before jury. Defendants motion for order bifurcating trial was dismissed. Plaintiffs and de- fendants filed jury notices. Appeal was allowed. Order was set aside. Order was granted severing trial of liability issues from those involv- ing damages. To hold bifurcation could never be ordered in actions where jury notice was filed was erroneous interpretation and ap- plication of law. Master erred in not considering merits of defen- dants' motion. Liability issue to be tried was not complex. Issue was distinct from damages issues that were more complex. There was substantial likelihood finding www.lawtimesnews.com Motion judge struck number of causes of action in appellants' statement of claim in proposed class proceeding that challenged provision of autism and education services to children with autism. Appeal related only to striking of claims for negligence, breach of fiduciary duty, breach of s. 7 of Canadian Charter of Rights and Freedoms and for Charter dam- ages. Appeal allowed in part. Ap- pellants' age-based discrimination claim was struck without leave to amend on basis of stare decisis. While certain aspects of s. 15(1) of Charter claim based on disability discrimination may be sustainable at law, at least at pleadings stage, those aspects of statement of claim did not currently constitute pre- cise pleading as required by rule 25.06 of Rules of Civil Procedure (Ont.). Disability discrimination claim struck with leave to amend. Claim for Charter damages based on government negligence also struck with leave to amend to plead concisely basis for remedy sought. Appellants granted leave to amend their negligence claim against school boards regarding operation of programs. Claims as amended may be subject to fur- ther challenge. Sagharian (Litigation Guardian of) v. Ontario (Minister of Education) (May 23, 2008, Ont. C.A., Lang, MacFarland and Rouleau JJ.A., File No. C47003) Appeal from 156 A.C.W.S. (3d) 88; 154 C.R.R. (2d) 85 was allowed in part. Order No. 008/149/036 (14 pp.). provision of autism and education services was allowed in part Contracts FORMATION Plaintiff entitled to specific performance of share purchase agreement to buy shares without renegotiat- ing price. Application granted. Plaintiff U. Inc. was granted order for specific performance of agree- ment to purchase shares. It was ordered that S. Ltd. pay plaintiff amount equal to total amount of dividends paid on shares. S. Ltd. unconditionally agreed to sell 100,000 common shares of B. to plaintiff for $50 per share. Reason- able person would conclude that parties intended to contract. Both parties committed themselves to essential and material terms of agreement and both reasonably ex- pected to be bound to terms. UBS Securities Canada Inc. v. Sands Brothers Canada Ltd. (Apr. 30, 2008, Ont.S.C.J., Pepall J., File No. 06-CL-6794) Order No. 008/127/022 (23 pp.). Action for damages for breach of consulting agreement. Plaintiff and defendant entered into acqui- sition agreement and consulting agreement whereby plaintiff was to provide services to defendant over three-year period. Plaintiff stopped providing services to defendants approximately one year later. Plain- tiff sought remaining 24 months of payments under consulting agree- ment. Action allowed. Plaintiff was awarded $120,000 plus pre- judgment interest representing 12 months of fees under contract. De- fendant repudiated parties' agree- ment by fundamentally changing plaintiff's responsibilities in com- pany in way that undermined his position and status. Plaintiff was not dismissed for cause. Parties in- tended that plaintiff's minimum entitlement in case of relationship breaking down was payment of 12 months, and it was implicit that minimum entitlement was not subject to mitigation. Eady v. TrekLogic Technologies Inc. (Apr. 30, 2008, Ont.S.C.J., Her- man J., File No. 04-CV-280897 CM3) Order No. 008/127/046 (21 pp.). PERFORMANCE AND BREACH Defendant repudiated consulting agreement by fundamentally changing plaintiff's responsibilities Debtor And Creditor ENFORCEMENT Renewal of mortgage did not amount to new consideration Application for specific perfor- mance of share purchase agree- ment. Defendant S. Ltd. entered into negotiations with plaintiff U. Inc. for purchase of shares of B.. Draft share purchase agreement was sent to U. Inc.. B. announced that it decided to list shares without offering new shares. S. Inc. refused Applicant bank sought to enforce a debt it claimed was owed by re- spondent husband and wife for line of credit. Line of credit had been allowed however on tak- ing mortgage against newly built home it was agreed between par- ties that a large portion of mort- gage would be used to pay off line of credit. Administrative error by applicant resulted in line of credit not being closed. Respondent hus- band was principal borrower and

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