Law Times

LAW TIMES / MAY 26, 2008 in amount of $79,999.50. It would be extremely excessive to award approximately two-and- a-half times more in costs than amount plaintiff recovered at trial. Plaintiff was not entitled to $50,000 premium sought on basis that counsel undertook work on basis he would not re- ceive any fees or disbursements until successful trial or settle- ment. Plaintiff 's claim reduced by 30% due to defendant's of- fer to settle. Plaintiff 's bill of costs for trial reduced for being excessive. Plaintiff 's disburse- ments disallowed. Barlow v. Citadel General Assurance Co. (Jan. 23, 2008, Ont.S.C.J., Lalonde J., File No. 16384/05) Order No. 008/037/022 (12 pp.). DISCOVERY Second medical examination of plaintiff not appropriate \or necessary School Board (Jan. 30, 2008, Ont.S.C.J., Morawetz J., File No. 07-CV-339233PD2) Order No. 008/043/145 (5 pp.). SUMMARY JUDGMENT Whether agreement was franchise agreement under Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.) was triable issue CASELAW Defendants signed promissory note. Plaintiff Plaintiff was injured in motor vehicle accident. Defence medi- cal predated examination for discovery of plaintiff. Plaintiff decided at pretrial to pursue future wage loss claim. Plaintiff did not serve new medical report suggesting new defence medical was needed to respond. Defen- dant was granted leave to bring motion for second defence med- ical examination. Motion was dismissed. No evidence was pre- sented establishing significant change in plaintiff's medical condition. Second examination was not appropriate or necessary at this stage. de Angelis (Litigation Guard- ian of) v. Hau (Feb. 21, 2008, Ont.S.C.J., Milanetti J., File No. 04-14871) Order No. 008/056/167 (5 pp.). Plaintiffs claimed against defen- dants for damages relating to sei- zure of six dogs owned by plain- tiffs. Plaintiffs' request for order directing defendants to disclose name and address of informant was refused. It would not be ap- propriate for defendants to be required to give name or names of informant or to identify them in any fashion to plaintiffs. All other relevant information or documentation that did not dis- close identity of informant must be provided by defendants. Gavidia v. Roberts (Feb. 7, 2008, Ont.S.C.J., Lemon J., File No. 06-300) Order No. 008/043/148 (7 pp.). Defendants not required to disclose name and address of informant JOINDER Application for consolidation was premature for payment of amount due un- der promissory note and amount for goods sold and delivered. Plaintiff 's motion for summary judgment on promissory note was dismissed. Legal set-off was not available. Debt pleaded was not liquidated sum that could be ascertained with certainty. Eq- uitable set-off was not available because claim was for payment under promissory note. Whether agreement was franchise agree- ment under Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.), was triable issue. If it were franchise agreement, there were other triable issues. Issues could not be determined on summary judgment. Tupperware Canada Inc. v. 1196815 Ontario Ltd. (Feb. 14, 2008, Ont.S.C.J., Herman J., File No. 04-CV-273027CM3) Order No. 008/050/009 (7 pp.). brought claims Constitutional Law Application for order converting application into action or direct- ing trial of whole application and order that this proceeding be consolidated with two actions was dismissed. It was premature, before cross-examination on af- fidavits and examinations for discovery in two actions were complete, to decide whether ap- plication should be converted into action or to decide which issues, if any, should proceed to trial of issue and which issues, if any, should proceed to decision summarily or on paper. Applica- tion was ordered heard at same time as two actions. West Harbour City (I) Residences Corp. v. Toronto Catholic District Appellant owners, employees or patrons of adult entertainment parlours sought relief against province and Attorney General in relation to Smoke-Free On- tario Act. Motion judge correct- ly struck most of causes of action without leave to amend as no tenable cause of action could be established. Motion judge erred in allowing appellants to amend their pleadings to argue that Smoke-Free Ontario Act was ul- tra vires by reason of federal gov- ernment's criminal law power. Pith and substance of legislation was to promote health of Ontar- ians. Smoke-Free Ontario Act was valid pursuant to provincial government's jurisdiction over health. Appellants' federalism claim was ordered struck with- out leave to amend. Club Pro Adult Entertainment Inc. v. Ontario (Attorney Gen- eral) (Mar. 3, 2008, Ont. C.A., Winkler C.J.O., Armstrong and Epstein JJ.A., File No. C46557; C46559; C46560; C46561; C46564) Decision at 154 A.C.W.S. (3d) 64; 150 C.R.R. (2d) 1; 27 B.L.R. (4th) 227 was varied. Order No. 008/064/034 (4 pp.). DISTRIBUTION OF LEGISLATIVE AUTHORITY Smoke-Free Ontario Act was valid pursuant to province's jurisdiction over health Contracts Defendants purchased busi- ness from plaintiff. Agreement of purchase and sale specified inventory was extra to sale. Defendant provided plaintiff with handyman services worth $4,165. Parties agreed value of services would be deducted from balance due on inventory. TERMS Plaintiff did not prove interest was term of contract Plaintiff claimed $35,600 af- ter crediting defendant's work. Defendants argued amount due was less. Corporate defen- dant was purchaser of inventory and not individual defendants. Plaintiff was on notice corporate defendant was party purchasing inventory. Claim for interest was dismissed. Plaintiff did not prove interest was term of contract. Plaintiff could not unilaterally impose terms regarding interest after fact when parties failed to agree. Claim for special damages was dismissed because it was not pleaded in amended statement of claim. Plaintiff was directed to recalculate outstanding bal- ance on inventory account. 1089954 Ontario Ltd. v. 146812 Ontario Inc. (Feb. 4, 2008, Ont.S.C.J., Pierce J., File No. CV-06-0662) Order No. 008/050/074 (18 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Accused found guilty for throwing chair Accused was charged with five counts of assaulting his domestic partner, uttering threats and as- sault cause bodily harm. Defen- dant claimed complainant made false complaints after defendant tried to have her removed from his home. Defendant alleged complainant was addicted to prescribed drugs and drained money from his bank account to feed her drug addiction. The Crown produced physical evi- dence of injuries which defen- dant alleged were self-inflicted. Complainant's evidence in trial was unreliable. However, com- plainant's version of events con- cerning a thrown wicker chair was reliable and defendant was found guilty of assault. R. v. Bayley (Mar. 25, 2008, Ont. C.J., Wolder J., File No. 06-81073) Order No. 008/087/226 (19 pp.). Charter Of Rights SEARCH AND SEIZURE Mere suspicion insufficient to arrest and make breathalyzer demand basis his s. 8 rights were vio- lated. Accused was stopped in his vehicle and asked questions by police officer after which he ran towards rear of vehicle and struggle ensued between him and police. Evidence of officers was preferred over that of ac- cused. Accused's stop was in nature of routine police/citizen contact and accused was not de- tained by officer. Searches of ve- hicle were incident to arrest and drugs were found. R. v. Favorite (Mar. 31, 2008, Ont. S.C.J., Brown J., File No. F874/07) Order No. 008/093/076 (18 pp.). Defendant sought to exclude handgun obtained in execution of search warrant at defendant's home on basis there were no rea- sonable grounds for issuance of warrant. Defendant alleged evi- dence to obtain search warrant only provide some chance gun would be there but not that it would be in defendant's home. There was two month delay in police obtaining warrant and possibility gun would not be in home. Defendant's applica- tion to exclude handgun was granted. R. v. Adansi (Feb. 27, 2008, Ont. C.J., Clark J., File No. 06-3387) Order No. 008/094/119 (22 pp.). Handgun obtained in execution of search warrant was excluded Constitutional Law PARAMOUNTCY Person could comply with provisions of Criminal Code and Law Crown sought removal of agent who purported to represent ac- Society Act (Ont.) at same time PAGE 19 cused who was charged with of- fences under Immigration Act (Can.). Paralegal asserted Law Society Act (Ont.) was ultra vires provincial legislature being in conflict with Criminal Code s. 800 which permits individu- als to be represented by agents. Person can at same time comply with both provisions of Crimi- nal Code and Law Society Act. Provincial legislation attempts to ensure that non-lawyers who are hired for fee are competent and qualified. Paralegal was or- dered not to act for accused. R. v. Toutissani (Mar. 26, 2008, Ont. C.J., Casey J.) Order No. 008/093/059 (18 pp.). Courts ABUSE OF PROCESS Accused did not prove that Accused had business searched and documents seized in op- eration in which accused alleged police acted as Revenue Can- ada's proxy to secure evidence in support of anticipated tax evasion charges. While bawdy house charges were withdrawn ultimately, Court concluded primary focus of police initia- tive was investigation of bawdy house and proceeds of crime of- fences as detailed in operation plan. Fact that applicant was ultimately prosecuted for tax evasion was not in itself proof or confirmation that prosecution on charge was goal of both tax officials and police. Application to stay charges was dismissed. R. v. DiGiuseppe (Feb. 6, 2008, Ont. C.J., Tetley J., File No. 01-01311; 02-02933) Order No. 008/087/228 (24 pp.). prosecution for tax charges was ultimate goal of investigation 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 Accused was charged with oper- ating vehicle with blood alcohol over 80. Accused alleged officer had no reasonable grounds to require breath sample be taken. Officer had approved screening device on him but did not use it. Officer only had mere suspicion which was not sufficient for ar- resting accused and proceeding directly to breathalyzer demand was impermissible shortcut. Evi- dence of test was excluded. R. v. Dunn (Feb. 12, 2008, Ont. C.J., Johnston J., File No. 4311-998-07-609-00) Order No. 008/086/116 (13 pp.). Accused was charged with pos- sess cocaine for purpose of traf- ficking, possess marijuana for same purpose and possess pro- ceeds of crime. Accused sought to exclude evidence seized on Stop was in nature of routine police/citizen contact www.lawtimesnews.com 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. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages LT Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code:______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 *Add 13% PST & GST on all orders

• Cover