Law Times

LAW TIMES / MAY 5, 2008 Applicant was trailer rental com- pany that rented out commercial highway and cartage trailers to in- dividuals and companies. Respon- dent was authorized by Highway 407 Act, 1998 (Ont.), to charge tolls for use of Highway 407. Re- spondent was not authorized to bill applicant for tolls, administra- tive fees and interest and any other amounts it charged applicant for use of Highway 407 by any trailer attached to motor vehicle where motor vehicle's license plate was not issued in applicant's name. Therefore, registrar was not au- thorized to invalidate 122 plates issued to applicant. Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co. (Feb. 6, 2008, Ont.S.C.J., Allen J., File No. 07-CV-341444PD1) Order No. 008/038/285 (17 pp.). Municipal Law Town's previous by-law provid- ing for complete ban on billboard advertising within its borders was found to be unconstitutional. Town's subsequent by-law permit- ting minimal amount of billboard advertising within few small se- lected pockets in municipality was also found to be unconstitutional. While objectives of town in pre- venting urban blight and mini- mizing driver distractions were pressing and substantial, town had not shown that means chosen to achieve these objectives were justified. By-law ordered quashed. Applicant provided partial relief. Order was otherwise suspended for six months to allow town to prepare new by-law. Vann Media Inc. v. Oakville (Town) (Jan. 18, 2008, Ont.S.C.J., Gray J., File No. 3410/04) Order No. 008/045/042 (23 pp.). BY-LAWS Billboard by-law quashed as unconstitutional Pensions ADMINISTRATION Joint Protocol regarding categories of costs and support was legally valid Trial judge did not err in finding that appellant participated jointly with co-defendant S. in publish- ing libel. Appellant provided de- famatory information contained in "News Release" which S. pub- lished in internet. Appellant was aware of News Release prior to it being released and was in full agreement with it being sent out. Both S. and appellant were fully responsible for publication of de- famatory information. No basis to interfere with trial judge's credibil- ity assessment. Ottawa-Carleton District School Board v. Scharf (Mar. 3, 2008, Ont. C.A., Laskin, Moldaver and Feldman JJ.A., File No. C47643) Appeal from 159 A.C.W.S. (3d) 764 dismissed. Order No. 008/064/033 (2 pp.). Finding of joint liability for libel upheld on appeal FEDERAL COURT OF APPEAL Aboriginal Peoples EXEMPTION FROM TAXATION In absence of notice of constitutional question, court could not review constitutional validity of Income Tax Act (Can.) CASELAW represented him and forward- ing address provided by solicitor proved problematic for service on him. Court directed Registry to post letter setting out timetable together with copy of respon- dent's materials and instructions for its retrieval on public notice board in offices of Registry in four provinces. Respondent's costs as- sessed at $1,737. Decision posted with certificate of assessment and copy of respondent's bill of costs as assessed on public notice board. This period extends beyond ten days provided in Rule 414 of Fed- eral Court Rules (Can.), for ser- vice and filing of notice of motion for review of assessment of costs. Machula v. Canada (Jan. 24, 2008, F.C.A., Assessment Officer Stinson, File No. A-457-03) Or- der No. 008/043/007 (3 pp.). ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Reasonable doubt existed that accused feigned attempts to provide sample SC was statutory corporation cre- ated under Ontario Municipal Employees Retirement System Act, 2006 ("OMERS Act"). A.C. was statutory corporation contin- ued under OMERS Act. Two cor- porations were charged by statute with governance of OMERS Pen- sion Plans. A.C. was to reimburse S.C. for costs that in opinion of A.C. may lawfully be paid out of OMERS Pension Funds. OM- ERS Act does not specify nature of such costs or support. S.C. and A.C. established Joint Protocol regarding categories of costs and support to be provided by A.C. to S.C. in accordance with OM- ERS Act. Joint Protocol was de- clared legally valid. Categories of costs requiring reimbursement to S.C. were appropriate. Equally, categories of technical and admin- istrative support to be provided by OMERS Act to S.C., when required, were reasonable and ap- propriate. Omers Sponsors Corp. v. Omers Ad- ministration Corp. (Feb. 6, 2008, Ont.S.C.J., Archibald J., File No. 07-CV-341228PD1) Order No. 008/043/161 (22 pp.). Torts LIBEL AND SLANDER Appeal from decision of Tax Court of Canada dismissing ap- pellant's appeal from Minister's assessment of appellant's liability for income tax for 2001 taxation year. Appellant's income was de- rived from fishing in coastal wa- ters. Appellant contended that Federal Government lacked ju- risdiction to impose taxation on Indians for activities undertaken on Indian land and appellant con- tended that all land in Canada was Indian land unless person claim- ing ownership could show chain of title originating with purchase of land by Crown from Indian nations who owned land. Appel- lants' arguments, which amount- ed to challenge to constitutional validity of Income Tax Act (Can.), as it applied to Indians were not dealt with by Tax Court Judge as required Notice of Constitutional Question was not served on At- torneys General of Canada and of provinces. On appeal appellant again raised constitutional argu- ments. Appeal dismissed. As no notice of constitutional question was given appeal court was not in position to embark upon review of constitutional validity of Income Tax Act as it applied to Indians. Dumont v. Canada (Jan. 24, 2008, F.C.A., Letourneau, Sexton and Pelletier JJ.A., File No. A-48-06) Appeal from [2006] 2 C.T.C. 2148; 2006 D.T.C. 2160 dis- missed. Order No. 008/043/005 (5 pp.). Civil Procedure COSTS Determination of costs following dismissal of appeal from decision of Tax Court of Canada concern- ing non-remittance of payroll de- ductions. Court had issued time- table for written disposition of assessment of respondent's costs. Appellant's solicitor no longer Costs assessed at $1,737 after dismissal of appeal from Tax Court of Canada decision Police discovered accused asleep in broken-down vehicle by side of highway. After numerous dem- onstrations and attempts accused was unable to provide adequate breath sample and was charged with refusing to comply with de- mand for breath sample contrary to s. 254(5) of Criminal Code. Accused was acquitted. Court did not disbelieve any of witnesses. In light of conflicting evidence there was reasonable doubt that accused had feigned attempts to provide sample. R. v. Ma (Feb. 12, 2008, Ont. C.J., Harris J.) Order No. 008/063/223 (8 pp.). Charter Of Rights RIGHT TO COUNSEL No requirement that accused be given access to duty counsel while waiting for completion of speeding ticket paperwork CaseLaw on Call • rates Accused was stopped for speeding and admitted to consuming four glasses of wine before driving. Constable requested screening device which arrived within 12 minutes, in course of which she wrote up speeding ticket. Con- stable made screen demand and administered test, which accused failed. Constable placed accused under arrest and read breath test demand under s. 254(3) of Crimi- nal Code. Accused and constable travelled back to police station. Due to variety of delays accused did not complete first test at sta- tion for further two hours, dur- ing which time accused spoke to duty counsel. Constable advised accused she was not charging him with operating motor vehicle over 80 over despite readings of over 100. Some days later Constable attended accused at his home and advised he would be charged due to Crown's office policy. Ac- cused sought exclusion of breath test readings on basis that he was denied right to counsel on being stopped for speeding, contrary to s. 10 of Charter. Evidence was not excluded. There was no require- www.lawtimesnews.com 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: 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 ment that accused be provided with access to duty counsel while waiting for speeding ticket paper- work to be completed. Even if circumstances constituted breach, exclusion of accurate and reliable evidence would bring administra- tion of justice into disrepute. R. v. Versage (Feb. 5, 2008, Ont. C.J., Kenkel J.) Order No. 008/063/231 (10 pp.). Courts JURISDICTION Superior Court had inherent jurisdiction over accused's person Court of Appeal allowed accused's appeals in respect of convictions for four offences and ordered new trial. Both Crown and defence applied for leave to appeal to Su- preme Court of Canada but leave was denied. Crown issued sum- mons to accused for new trial. Accused applied for indictment to be dismissed on ground that Su- perior Court had lost jurisdiction over his person for failing to issue summons within three months of Supreme Court's decision as required by s. 485.(1) of the Criminal Code. Application was dismissed. Superior Court has in- herent jurisdiction over the person of the accused. Once appeal to Su- preme Court was denied, Court's jurisdiction to recommence pro- ceedings was secure and unfet- tered by provisions of s. 485(1). R. v. Smith (Feb. 28, 2008, Ont. S.C.J., McCarthney R.S.J., File No. CR-03-06) Order No. 008/063/201 (9 pp.). Loitering GENERAL Purpose of prowling by night provision was to criminalize PAGE 15 Accused was charged with prowl- ing by night, contrary to s. 177 of Criminal Code. Alleged mis- conduct included manipulation of handle of locked front door of private home at 11 p.m. on Au- gust evening. Purpose of provi- sion was to criminalize "peeping tom" conduct. Offence penalized furtive and secretive trespassing. There was no evidence of stealth, furtiveness or surreptitiousness on part of accused on property of complainant. Manipulating front door handle did not con- stitute prowling. Accused was acquitted. R. v. Walczak (Feb. 19, 2008, Ont. C.J., Green J.) Order No. 008/063/226 (9 pp.). "peeping tom" conduct Motor Vehicles FAILING TO STOP No obligation on trial judge to alert Crown to deficiency of evidence Accused was acquitted of charge of failure to stop for red light, contrary to s. 144(18) of High- way traffic Act (Ont.) on basis that there was no evidence iden- tifying accused as driver of vehicle in question. Crown's appeal dis- missed. There was no obligation on trial judge to alert Crown to deficiency of evidence required to prove case. Further, failure by respondent to move for directed verdict did not amount to admis- sion by respondent of sufficiency of Crown's case. Charge was not proved beyond reasonable doubt and trial judge made no error in concluding same. R. v. Herzog (Feb. 21, 2008, Ont. C.J., Bourque J., File No. 00-83984362) Order No. 008/063/227 (7 pp.). 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