Law Times

PAGE 14 were moot, and had been pur- sued in other cases before court. Prisoner would have been enti- tled to periodical reviews and, if circumstances warranted it, term limit of some of special conditions could have been changed. Reasons were perfect- ly clear and transparent. Waiver of costs would have condoned prisoner's utter disregard for law. Whether or not prisoner was able to pay costs was irrel- evant. Stone v. Canada (Attorney General) (Jan. 19, 2012, F.C., Harrington J., File No. T-1992- 10) 100 W.C.B. (2d) 58 (8 pp.). ONTARIO CIVIL CASES Civil Procedure COMMENCEMENT OF PROCEEDINGS Respondents could not Convention. could not circumvent Service Convention simply because compliance would be costly or tedious. Khan Resources Inc. v. Atomredmetzoloto Respondents 9, 2012, Ont. S.C.J., O'Marra J., JSC (Mar. Decision at 209 A.C.W.S. (3d) 237 was reversed. 212 A.C.W.S. (3d) 905 (20 pp.). File No. CV-10-409104) Motion by defendant for leave to appeal order requiring that plaintiff produce second depo- nent for examination for discov- ery after examination of initial deponent had been completed, and while plaintiff was still in process of DISCOVERY No evidence that deponent not able to answer question ings given at that examina- tion. Plaintiffs' claims Respondents were compa- nies incorporated circumvent Service Convention simply because compliance would be costly ant to laws of British Virgin Islands, Mongolia, and Ontario. Appellant was Russian state- owned corporation. After failed joint venture in Mongolia, respondents commenced action in Ontario seeking dam- ages from appellant for $300 million for breach of fiduciary duty, unlawful interference with respondents' economic rela- tions, breaches of good-faith duties, and damage to plain- tiffs' rights, business reputa- tion and property in Mongolia. Respondents retained law firm in Moscow to assist in service of statement of claim on appel- lant in Russia. Respondents were informed that service of statement of claim must com- ply with Service Convention, since both Canada and Russia are signatories. Article 2 of Service Convention requires that request for service be filed with central authority, which is Ministry of Justice of Russian Federation. Request for service was filed with Ministry in form required by Service Convention. Ministry declined to serve statement of claim on appellant on basis of paragraph 1 of Article 13 of Service Convention. No further explanation was provided by Ministry. Respondents brought motion in Ontario to substitute or dispense with service pur- suant to Rule 16.04 of Rules of Civil Procedure (Ont.), or to validate pursu- to Rule 16.08. Master allowed respondents' motion to vali- date service pursuant to Rule 16.08. Appeal was allowed. Rules 16.04 and 16.08 have no application when service must be performed abroad in con- tracting state pursuant to Rule 17.05(3). Master erred in law by validating service under Rule 16.08. Application of domes- tic rules of service constituted noncompliance with Service service pursuant CASELAW Plaintiff maintained that laying of charge was significant fac- tor in progression of transfers and indignities for which he was entitled to compensation. However, correctional services records indicated plaintiff had pattern of violent and problem- atic behaviour and that subse- quent prison violence incident resulted in recommendation that plaintiff be transferred to special handling unit. Forrest v. Kirkland (Jan. 20, 2012, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Thomas and Ferrier JJ., File No. 316/10) Decision at 189 A.C.W.S. (3d) 882 was affirmed. 212 A.C.W.S. (3d) 1080 (18 pp.). Debtor and Creditor from single vehicle accident in which driver was fatally injured. Plaintiffs alleged that defen- dant county was liable for hav- ing failed to treat ice on road. Motion granted. Correctness of order was open to very serious debate. Motions judge appeared not to have considered facts that informed primary question before her. There was no evi- dence before motions judge to suggest that deponent was either not able to answer question or was not able to avail himself of answer if question was put to him. There were no facts or evi- dence to support other require- ment that bypassing deponent and initiating second examina- tion would have expedited con- duct of action. Fortini v. Simcoe (County) (Feb. 15, 2012, Ont. S.C.J., Healey J., File No. 11-575) 212 A.C.W.S. (3d) 932 (12 pp.). fulfilling undertak- arose Constitutional Law Appeal from dismissal of action brought by inmate in medium security prison. Plaintiff attempted to separate two other inmates who were fighting. One of combatants consistently claimed that plain- tiff struck him in face during melee. Plaintiff was placed in segregation, suffered invol- untary emergency transfer to maximum security prison and was later transferred to spe- cial handling unit. Defendant police officer charged plain- tiff with assault causing bodily harm. Charge later withdrawn by Crown. Plaintiff 's CHARTER OF RIGHTS Plaintiff had pattern of violent and problematic behaviour for malicious prosecution and for damages based on breach of s. 7 of Canadian Charter of Rights and Freedoms was dis- missed. Appeal dismissed. To establish claim for breach of s. 7 of Charter, mala fides must be shown. There was no basis in evidence to conclude that defendant officer was moti- vated by improper purpose. In any event, claim for dam- ages would not have succeeded. action Action by lessor against a co-lessee for deficiency bal- ance due under lease. Lessor leased vehicle to applicant and defendant as co-applicant on credit application. Applicant had extended terms of lease. Vehicle was not returned at end of lease time. Applicant claimed that he did not return vehicle because vehicle was stolen from him before final lease exten- sion term had expired. Action dismissed. Co-applicant guar- anteed funding of cost of orig- inal lease as accommodation to applicant without expecta- tion of compensation beyond return of his investment. As such, co-applicant could only be bound to obligations upon him driven by terms of original lease. Co-applicant was entitled to rely on paragraph of original lease requiring of JOINT DEBTORS Co-applicant unaware of extensions to original lease any change to terms of lease must be in writing and signed by co-applicant. Co-applicant was unaware of extensions to original lease. Lessor neither condoned nor consented to extension of terms. GMAC Leaseco Corp. v. Jaroszynski (Feb. 10, 2012, Ont. S.C.J., Moore J., File No. 09 CV 378414) 212 A.C.W.S. (3d) 962 (13 pp.). lessor that Insurance LIFE INSURANCE Insurer did not need to establish that consumption of alcohol caused accident Action by plaintiff beneficiary for payment by insurer of acci- dental death benefits. Insured was driving 148 km/hr though tunnel with posted speed of 40 km/hr when he lost control of vehicle and struck interior wall. Insured died instantly. Insured' blood alcohol level at time of accident was 211 milligrams of alcohol per 100 milliliters of blood. Plaintiff was insured' sister. Plaintiff was named ben- eficiary in insured' s ance policy. Insurer paid plain- tiff basic life insurance, but refused to pay accidental death benefit, asserting that exclu- sion clause in policy applied. www.lawtimesnews.com s life insur- s Exclusion clause provided that policy did not cover any loss, fatal or non-fatal, caused or contributed to by accident that occurred while operating motor vehicle and blood contains more than 80 milligrams of alcohol in 100 milliliters of blood. Action dis- missed. Terms of over 80 exclu- sion were met. Careful read- ing of over 80 exclusion clause revealed that insurer did not need to establish that consump- tion of alcohol caused or con- tributed to accident. There was more than adequate support for common sense inference that concentration of alcohol in insured' insured was to accident. MacIntosh v. Manulife Financial (Jan. 20, 2012, Ont. S.C.J., Boswell J., File No. 61554/09) 212 A.C.W.S. (3d) 1030 (8 pp.). Real Property Trial judge found that river intersecting appellants' prop- erty was navigable river and that no express grant of this river bed was given in orig- inal Crown patent. In result, Crown was found to own river bed in accordance with Beds of Navigable Waters Act (Ont.). Appeal was dismissed. Trial judge did not err in her determination that River as it crossed Appellants' property was navigable. Trial judge was entitled to find other historical evidence as to use or capability of use of River uncertain and contradictory. There was no error in her articulation of test for navigability or her apprecia- tion of relevant evidence. She identified correct legal test and her factual conclusions showed no reviewable palpable and overriding error. Trial judge did not err in finding that there was no express grant of River bed as it crossed Property. At time Property was granted by Crown express words were not required in order to grant river bed to riparian owner. General words would suffice to do so. Words in issue in Crown Patent constituted general grant of all waters found to be located within deeded land. Passage of what is now s. 1 of Act ret- roactively deemed that general grant was no longer sufficient; rather express grant must be found in original Patent. Word "express" required explicit or specific or distinctly presented grant of bed of body of water. "Woods and Waters" phrase was only general grant and did not refer to specific or particu- lar watercourse. Simpson v. Ontario (Ministry of Natural Resources) (Feb. 7, 2012, Ont. S.C.J. (Div. Ct.), Chapnik, Swinton and Mackinnon JJ., File No. DC-453/11) Decision at 198 A.C.W.S. (3d) 859 was affirmed. 212 A.C.W.S. (3d) 1051 (10 pp.). WATER AND WATERCOURSES No express grant of river bed as it crossed property s blood contributed June 11, 2012 • Law Times ONTARIO CRIMINAL CASES Appeal GROUNDS Trial counsel operated under erroneous assumption Accused appealed convic- tion for "over 80". Accused was stopped by police and indicat- ed that he had consumed few beers. Results of breath tests were 110mg of alcohol per 100ml of blood. Accused told his counsel that roadside statements were admissible sumed two glasses of sake as opposed to few beers. Because of discrepancy, accused' that he had con- counsel did not pursue "Carter" defence. Accused's believed that accused's s trial ment to police at roadside was admissible and that his cred- ibility would be negatively affected if he testified that he had consumed sake as opposed to beer. Trial counsel admit- ted that he was mistaken about admissibility of roadside state- ments. Accused argued that his trial counsel state- case law which resulted in fail- ure to raise "Carter" defence. Accused argued that because he had potential "Carter" defence, there was reasonable possi- bility that verdict would have been different. Appeal allowed, conviction quashed, new trial ordered. Accused' sel ous assumption that roadside statements were admissible to undermine accused' operated under s trial coun- errone- ty. Trial counsel failed to obtain information about alcohol consumption, discuss possibility of accused testify- ing at trial, order disclosure of records relating to intoxilyzer, and retain expert toxicologist. Error in trial counsel' s credibili- accused's pretation of case law informed his decisions for defence. Based on information provided by accused, he would have had via- ble Carter defence. Given that Carter defence was not pur- sued, there was ineffective assis- tance of counsel. While con- sumption patterns and expert calculations to challenge breath readings were significantly restricted by amendments to Criminal Code, defence was open to accused on materials provided. There was conflict- ing evidence with respect to whether intoxilyzer was mal- functioning or was operating improperly. There was evidence from expert s inter- accused's blood alcohol con- toxicologist that centration at time of driving was below legal limit. There was evidence which could pos- sibly rebut presumption in s. 258(1)(c) of Code. There was reasonable possibility that ver- dict could have been different but for ineffective assistance of counsel. Reasonable person would find that appearance of fairness of trial was undermined counsel misunderstood

• Cover