Law Times

LAW TIMES / APRIL 28, 2008 tor. Process was then beyond rehabilitation. Finding of ap- peal committee was struck and sanction imposed was struck. Plaintiff was entitled to refund of any fine paid. Egerton v. Appraisal Insti- tute of Canada (Feb. 5, 2008, Ont.S.C.J., Tausendfreund J., File No. 44257) Order No. 008/038/294 (14 pp.). Civil Procedure CLASS ACTIONS Substitution of representative plaintiff was permitted Plaintiff brought action on behalf of proposed class of former students of defendant who alleged they were sexually assaulted by individual defen- dant. Motion for certification was not yet heard. Plaintiff brought motion to add or sub- stitute P.M. as representative plaintiff on condition P.M. was immune from liability of costs. P.M. pursued no options for protecting P.M. against adverse costs award. Plaintiffs were at liberty to add or sub- stitute P.M. as representative plaintiff. Order P.M. not be liable for costs was refused. It would have been contrary to well-established principles for awarding costs and unfair. A. (W.) v. St. Andrew's College (Feb. 4, 2008, Ont.S.C.J., Lax J., File No. 05-CV-287961CP) Order No. 008/037/014 (5 pp.). TRIAL Court could control process without violating right to bilingual proceeding 50% of extraordinary expenses. Mother sought table amount of child support and pro rata contribution to s. 7 expenses. Agreement provided two years for parties to determine appro- priate sharing of post second- ary costs of child. Agreement was not varied. Meaning of "appropriate sharing" referred to s. 7 expenses not guideline payments. Father did not show material change to agreement. There were no grounds to pay money directly to child. Father was ordered to pay $1,639 per month as guideline support based on income of $202,000 per year commencing July 2006 and $1,639 per month based on annual income of $204,000 commencing July 2007. Father was to pay $623 per month as proportionate share of s. 7 ex- penses for post secondary edu- cation commencing September 2006 and $503 per month commencing September 2007. Coward v. Coward (Feb. 5, 2008, Ont.S.C.J., Rogers J., File No. FC-07-026118-00) Order No. 008/038/291 (10 pp.). Torts This was appeal of motion judge's dismissal of action. Ap- pellant sought order rescinding sale of property and awarding him damages. These were bilin- gual proceedings conducted un- der s. 126 of Courts of Justice Act (Ont.). Before hearing appellant was notified that bilingual judge would not be available. Appel- lant's request for adjournment was denied. Motion judge, who was not bilingual, dismissed ac- tion. Appeal allowed. Right to bilingual proceeding was con- ferred by s. 126 of Courts of Justice Act and right in s. 126 was not qualified by any grant of judicial discretion. Court had inherent jurisdiction to control conduct of proceedings but it was clear that court's jurisdiction could not be exercised in man- ner that would conflict with ex- press provisions of statute. Court was able to control process and prevent abuse without violating litigant's statutory right to bilin- gual proceeding. Motion judge should have adjourned hearing to date when bilingual judge was available. Belende v. Patel (Feb. 29, 2008, Ont. C.A., Weiler, Blair and Rouleau JJ.A., File No. C46898; M35489; M35812) Order No. 008/063/178 (7 pp.). Family Law DOMESTIC CONTRACTS Meaning of "appropriate sharing" in agreement referred to s. 7 expenses LIBEL AND SLANDER Trial judge awarded general damages of $40,000 to H. and $5,000 to S. as well as punitive damages of $15,000 for severely defamatory editorial on defen- dants' newspaper internet web site. Trial judge was alive to proper test for punitive dam- ages. Sanjh Savera Weekly v. Ajit News- paper Advertising, Marketing and Communications Inc. (Feb. 28, 2008, Ont. C.A., Lang, Mac- Farland and LaForme JJ.A., File No. C45698) Appeal from 149 A.C.W.S. (3d) 349 dismissed. Order No. 008/063/161 (2 pp.). ONTARIO CRIMINAL CASES Arson Child, aged 18, attended uni- versity. Amending separation agreement/consent order pro- vided for father to pay child sup- port of $1,373 per month and Crown applied for accused's committal for trial on two counts of arson by negligence, contrary to s. 436 of Criminal Code. Accused owned detached residential dwelling rented out to group of students who were friends. House caught fire when one of tenants was setting gar- bage bags on fire in kitchen. An- other tenant broke foot jumping out of house and guest suffered smoke inhalation and burns. Audit of property was conduct- ed. Fire protection engineer clas- sified property as rooming house governed by s. 9.3 of Fire Code (Ont.). Property not previously classified as rooming house. Engineer alleged two aspects of building did not meet require- ments of Code. Application dis- missed. Accused owed injured parties a duty of care. There was evidence of marked departure from standard of care. However, there was no evidence of causal link between alleged breach of ELEMENTS OF OFFENCE Accused discharged where no evidence of causal link between alleged breach of standard of care and spread of fire CASELAW standard and spread of fire and resulting injuries, as required by 436(1). Insufficient evidence of some essential elements of of- fence necessitated discharge of accused. R. v. Payne (Feb. 8, 2008, Ont. C.J., Campbell J., File No. 06 4276) Order No. 008/063/221 (15 pp.). Breathalyzer Accused appealed conviction for impaired driving. Police officer followed accused's vehicle into hospital parking lot. Accused alleged he was having trouble breathing and throat was sore. Officer smelled alcohol on ac- cused's breath and arrested him. Appeal dismissed. Trial judge did not err in dismissing ap- plication to exclude evidence. Demand for breath sample was not unreasonable search. Trial judge entitled to find no medi- cal emergency existed. Evidence established that officer did not prevent accused from seeking medical help; accused's symp- toms vanished within moments after officer's approach; officer not concerned about accused's health; and accused did not request help. No arbitrary de- tention. Any Charter breach so minor that admission of evidence would not bring ad- ministration of justice into dis- repute. In any event, officer's observations before parking lot encounter sufficient to estab- lish impairment. R. v. Loughry (Feb. 25, 2008, Ont. S.C.J., Gunsolus J., File No. 1589/02) Order No. 008/058/206 (6 pp.). DEMAND FOR BREATH (BLOOD) SAMPLE Demand was not unreasonable search TIME ELEMENT Breath samples were taken as soon as practicable tawa and both were very ex- perienced. Accused had been in custody four years and both accused exercised all possible steps to retain counsel in Ot- tawa but were unsuccessful. Case was unique and complex justifying counsel of choice. R. v. Dadshani (Feb. 8, 2008, Ont. S.C.J., McKinnon J.) Order No. 008/045/045 (12 pp.). Drug Offences POSSESSION FOR PURPOSE OF TRAFFICKING Accused guilty of offences related to marijuana grow operation PAGE 23 (a) of Criminal Code. Crown ap- plied to admit evidence. Accused being re-tried after conviction overturned on appeal. Another conviction involving stories on website allegedly maintained by accused was upheld. Crown sought to admit stories as context to current charge. Application al- lowed. Court of Appeal had held that trial judge did not err in ad- mitting meta-tags, banners and links as relevant to give context to website where found. Same rea- soning applied here. Stories not too remote from subject images. R. v. Smith (Feb. 28, 2008, Ont. S.C.J., McCartney R.S.J., File No. CR-03-06) Order No. 008/063/196 (5 pp.). Accused was charged with pro- duction of marijuana, posses- sion for purpose of trafficking in marijuana and theft of elec- tricity. Police responded to call people were taking marijuana plants into home in Toronto. Police found grow operation with accused inside. Accused's fingerprints were found on schedules providing for fertil- ization and watering of plants. Accused had key to premises. Accused was found guilty of production and possession for purpose but not theft of elec- tricity as it was not proven he was aware of electrical bypass. R. v. Lin (Feb. 19, 2008, Ont. S.C.J., Newbould J.) Order No. 008/052/051 (10 pp.). Evidence ADMISSIBILITY Evidence from website admitted at obscenity trial Accused charged with distributing obscenity contrary to s. 163(1) Accused charged with eight of- fences including aggravated as- sault and assault with weapon. After confrontation in restau- rant, four complainants were attacked by group of men us- ing beer bottles, machetes and knives and were seriously in- jured. Complainants D. and J. identified accused as two of assailants. No other confirma- tory evidence. Accused acquit- ted. Identification evidence not sufficiently reliable to meet standard of proof beyond reasonable doubt. D.'s recol- lection compromised by head injury occasioned in attack. J. was unreliable and reluctant witness and unable to provide specific details about assail- ants. R. v. N. (N.) (July 19, 2007, Ont. C.J., Bloomenfeld J.) Order No. 008/063/222 (7 pp.). IDENTITY OF ACCUSED Identification evidence not sufficiently reliable LT Obtain Copies of Judgments Accused charged with impaired driving and driving "over 80". Accused pulled over by off- duty police officer. On-duty officer arrived and noticed ac- cused stumbled out of vehicle, had delayed responses, glossy eyes and faint odour of alcohol on breath. At 2:19 a.m., officer and accused left for station in another district due to unavail- ability of breath technician. They arrived at station at 2:42 a.m. and after some delay dur- ing booking, first breath test conducted at 3:19 a.m.. Breath test results were 160 mgs and 150 mgs alcohol in 100 ml blood. Accused found not guilty of impaired driving but guilty of care or control while "over 80". Breath samples taken as soon as practicable. Police evidence reasonably ex- plained delays. R. v. Steadman (Feb. 22, 2008, Ont. C.J., Kenkel J.) Order No. 008/063/232 (4 pp.). Charter of Rights RIGHT TO COUNSEL Complex case required counsel of choice Two of four accused brought application for state funded counsel. Accused were charged with first degree murder and sought to have counsel's trav- el and accommodation paid. 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