Law Times

LAW TIMES / MAY 12/19, 2008 child support be effective as of September, 2007. It was appropri- ate that two households each have 50% of net disposable income. Re- spondent was to pay $20,000 per month in spousal support retroac- tive to date of separation. It was not necessary to make order for exclusive possession. Respondent undertook not to interfere with applicant's possession. Applicant's request for interim disbursements was declined. Property was to be listed for sale and sold. Turk v. Turk (Jan. 30, 2008, Ont.S.C.J., Backhouse J., File No. 07-FD-324991FIS) Order No. 008/038/319 (18 pp.). Insurance AUTOMOBILE INSURANCE Defendant insured plaintiff. Plain- tiff claimed compensation for damages to insured motor vehicle. Vehicle was damaged in collision into tree. Defendant argued dam- ages were caused by intentional act of operator who was child of policy holder. Child suffered from acute psychiatric disorder. Plaintiff was granted judgment for $37,000. Child had no conscious or deliber- ate physical control of operation of vehicle because of absence of sane and deliberating mind. Claimed damages were direct and accidental and were covered by policy. Sekhon v. RBC General Insur- ance Company (Feb. 26, 2008, Ont.S.C.J., Child of policy holder with psychiatric disorder had no conscious or deliberate physical control of operation of vehicle No. 03/11022) Order No. 008/058/202 (10 pp.). Landlord And Tenant Adjudicator of tribunal dismissed part of landlord's application for rent increase in amount above statutory guideline. Adjudica- tor refused to recognize amount claimed in capital expenditures by landlord relating to lobby and corridor renovations. Landlord appealed. Appeal was allowed in part. Adjudicator's finding as to bringing landlord's good faith into question was error of law. Adjudicator erred by acting in procedurally unfair manner in dealing with matter of missing schedules. Adjudicator should have given landlord opportunity to file missing pages. Parts of or- der dismissing lobby renovation part of landlord's application was seta side. Landlord was to be given opportunity to add missing pages to original application in advance of rehearing. Gramercy Apartments Ltd. v. Antho- ny (Feb. 22, 2008, Ont. Div. Ct., Cumming, Swinton and Smith JJ., File No. DC-06-137) Order No. 008/058/208 (10 pp.). RENT Appeal from partial dismissal of application for rent increase was allowed in part RESIDENTIAL TENANCIES Decision found temporary full- time occupancy for four months did not constitute residential oc- cupation as contemplated by Resi- dential Tenancies Act, 2006 (Ont.). Appeal was dismissed. Decision was correct. MacDonald v. Richard (Feb. 7, 2008, Ont. Div. Ct., Molloy J., File No. 07-DV-1332) Hand- Crane J., File written endorsement. Order No. 008/043/103 (2 pp.). Plaintiffs were tenants in defen- dant's market. Market was torn down for creation of new market. New market did not include en- closed sit-down restaurants. Plain- tiffs did not like defendant's offer of space in new market. Plaintiffs brought action for breach of leases and negligent misrepresentation. Claims of Knickerbockers and Green Apron were dismissed. De- fendant was entitled under lease to offer space for small food out- let with seating in common area. Right of first refusal did not auto- matically shield tenant from nego- tiations with landlord. There was no evidence landlord offered other tenants better deal. Landlord did not breach right of first refusal. Ar- gument defendant negligently mis- represented position by promising all tenants financial assistance was not supported by evidence. There was no negligent misrepresenta- tion by defendant with respect to temporary market or financial as- sistance of tenants who elected not to take space in new market. Family Delicatessen's claim was al- lowed in part. Defendant breached contractual obligation to Family Delicatessen by failing to comply with demolition clause contained in lease. Family Delicatessen was entitled to damages for breach of leasehold rights. Defendant did not make negligent misrepresentation that was relied on by Family Deli- catessen. Damages were assessed at $159,664 for loss of income and $63,498 for loss of business. Family Delicatessen Ltd. v. Covent Garden Market Corp. (Feb. 5, 2008, Ont.S.C.J., Jenkins J., File No. 28981) Order No. 008/038/295 (25 pp.). SHOPPING CENTRE Landlord did not breach right of first refusal Mental Health COMMITTEE Public Guardian's motion for release of hospital records was allowed Two children were appointed guardians of personal care of moth- er. Other sibling opposed appoint- ment. Public Guardian recom- mended current guardians remain guardians of mother. Other sibling sought order that court require mother to undergo assessment by Geriatric Assessment Program. Public Guardian brought motion for order for hospital to release re- cords to public guardian. Motion was allowed. There was no basis in law for refusing to grant order for release of information by Hospital. One of children appointed guard- ian gave permission to discuss with public guardian and trustee issue of any attempt by anyone other than guardian and to arrange as- sessments for mother. Permission included permission to make in- quiries of Program. There was no cogent evidence other appointed guardian did not agree with giv- ing consent. Only guardians could make arrangements. Information requested was not subject to pri- vacy legislation because it did not involve private information about other sibling. Azzopardi v. Potomski (Feb. 25, 2008, Ont.S.C.J., Nolan J., File No. 07-CV-8912) Order No. 008/058/218 (9 pp.). Mortgages CASELAW DEFAULT Bank at liberty to take steps to preserve mortgaged property from tax arrears Defendant owned property. De- fendant executed mortgage in fa- vour of plaintiff. Plaintiff claimed under mortgage and sought pay- ment from defendants. There were no bankruptcy proceedings against defendant in Canada. Bank was not precluded from dealing with defendant during bankruptcy proceedings in Unit- ed States. Bank was at liberty to take steps to preserve mortgaged property from tax arrears. Bank dealt with defendant in business- like manner. Plaintiff was granted judgment for balance due and ow- ing on mortgage. Defendants were granted 90 days to pay amount. It was no answer to claim that no letter was written by plaintiff re- questing payment after loan went into default. State Bank of India (Canada) v. Singh (Feb. 1, 2008, Ont.S.C.J., Moore J., File No. 05-287067PD3) Order No. 008/038/317 (8 pp.). ONTARIO CRIMINAL CASES Breathalyzer DEMAND FOR BREATH (BLOOD) SAMPLE Officer had reasonable grounds to make breath demand Accused charged with impaired driving and driving "over 80". Ac- cused applied to exclude evidence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Police officer saw accused speeding, go through stops signs and drive in wrong lane for 800 to 900 metres. When accused exited vehicle, he was unsteady on feet and officer noted eyes dilated. Accused ad- mitted drinking "quite a few". Ac- cused's blood alcohol readings over legal limit. Application dismissed. Accused found guilty of "over 80" and not guilty of impaired driving. Evidence of qualified technician established proper functioning of intoxilyzer. No breach of Charter. Officer had reasonable grounds to make breath demand. Evidence did not establish impairment be- yond reasonable doubt. R. v. Graziano (Jan. 10, 2008, Ont. C.J., Blouin J., File No. 4911-998-07-02858-00) Order No. 008/028/076 (3 pp.). Charter Of Rights Accused appealed conviction for offences including several related to home invasion. Accused and co-accused arrested for unrelated offences but soon became suspects in home invasion. Accused asked to speak to lawyer three times. Police refused to allow accused to make phone call. Police officer overheard accused and co-accused make incriminating remarks while in jail cells. Over nine hours after arrest, accused permitted to consult counsel. Trial judge found breach of co-accused's right to counsel but no breach of s. 7 of Charter. Jail cell statements admitted. Ap- peal allowed in part. Accused's ENFORCEMENT OF RIGHTS Jail cell statements should have been excluded under s. 24(2) of Charter www.lawtimesnews.com right to counsel breached. State- ments should have been excluded under s. 24(2) of Charter. While not elicited, statements obtained in manner that infringed right to counsel. Very close temporal con- nection between violation and obtaining of evidence. Though admission of evidence would not affect trial fairness, breach was serious. Accused repeatedly as- serted right. No justifiable reason for delay in providing access to counsel. Statements not essential to Crown's case. Admission would bring administration of justice into disrepute. New trial ordered for home invasion charges. R. v. Smith (Feb. 22, 2008, Ont. C.A., Rosenberg, MacPherson and Simmons JJ.A., File No. C45828) Order No. 008/056/135 (13 pp.). SEARCH AND SEIZURE Accused had reasonable expectation of privacy in hotel room PAGE 19 circumstances justified continu- ance of search once no one found. Female occupant's request that po- lice retrieve her belongings did not render search and seizure reason- able. Evidence excluded under s. 24(2) of Charter. R. v. Douglas (Jan. 14, 2008, Ont. S.C.J., Salmers J., File No. SCJ-11247/07) Order No. 008/024/027 (8 pp.). Indians ABORIGINAL RIGHTS Accused not entitled to challenge constitutionality of Public Lands Accused charged with offences in- cluding robbery and possession of stolen vehicle. Accused applied to exclude evidence based on breach of s. 8 of Charter. Accused exited hotel room and entered hallway in compliance with police com- mands. Police searched hotel room and seized knife, meat cleaver, car keys and men's clothing. Accused had rented room for one night. Application allowed. Accused had reasonable expectation of privacy in hotel room and items therein. Accused left room under duress and therefore did not waive or con- sent to breach of privacy. Search conducted before expiry of rental period. Presumption of unrea- sonableness of warrantless search not rebutted. Search to ensure ac- complice not hiding in room was reasonable. However, no exigent Accused applied for leave to ap- peal dismissal of appeal from con- victions under Public Lands Act. Accused status Indian built cabin on lake without work permit and contrary to stop work order. Jus- tice of peace concluded building of cabin reasonably incidental to treaty rights but that lake outside First Nation's territory. Summary conviction appeal judge found that lake within territory but cabin not built in furtherance of treaty right. Application dismissed. Not essen- tial in public interest or for due ad- ministration of justice that leave be granted on any of grounds raised. Question whether person possesses treaty right was question of law properly reviewed by appeal judge. Appeal judge correct in finding insufficient evidentiary record on issue. Accused not entitled to chal- lenge constitutionality of Act, hav- ing not established treaty right. R. v. Baker (Jan. 17, 2008, Ont. C.A., Laskin J.A. in Chambers, File No. M35558) Application for leave to appeal from 71 W.C.B. (2d) 650 dismissed. Order No. 008/028/025 (5 pp.). 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