Law Times

PAGE 18 identification by personal appli- cant. Tribunal erred by improp- erly reversing burden of proof, by forcing personal applicant to prove that her conduct in perfor- mance of her routine duties was not motivated by race and colour. Peel Law Assn. v. Pieters (Feb. 13, 2012, Ont. S.C.J. (Div. Ct.), Chapnik, Hockin and Hoy JJ., File No. 61/11) 213 A.C.W.S. (3d) 729 (13 pp.). Landlord And Tenant EVICTION Board ordered landlord to pay $11,000 to tenant representing reasonable costs to replace ten- ant' Board erred in awarding damages for stress lord. Landlord appealed arguing board erred in finding landlord failed to make tenant' s property disposed of by land- available to be retrieved within 72 hours after eviction as required. Appeal was allowed in part. There was ample evidence to support board' s property failed to make tenant's possessions s conclusion that landlord available to be retrieved within 72 hours after eviction. Board erred in awarding damages for stress. There was no claim for such dam- ages. It was unfair to landlord to make award for damages for stress without adequate notice and with- out proper submissions. Denial of procedural fairness constituted error of law. Beauge Management Inc. (Feb. 16, 2012, Ont. S.C.J. (Div. Ct.), Swinton, Pepall and Harvison Young JJ., File No. 497/10) 213 A.C.W.S. (3d) 749 (5 pp.). v. Metcap Living Limitations Parties' properties were adjoin- ing. predecessors mistaken about location of boundary REAL PROPERTY No reason to conclude converted from Registry system to Land Titles. Parties agreed no possessory title could be acquired by actions after date of conversion but pre-existing period on which claim for pos- sessory title might be based was preserved. Applicants objected to respondents widening drive- way claiming applicants' prede- cessors acquired possessory title over that portion of respondents' lot. There was declaration that boundary between applicant' In 1995, properties were property and respondents' prop- erty was defined by existing fence line between two properties and in area east of fence by bound- ary shown in registered title. Injunction was vacated. Claim to side and front portion of disput- ed property failed. Applicant and predecessors in title used area but there was no indication such use was to exclusion of registered owner or that use was without permission of owner. There was no reason to conclude predeces- sors were mistaken about loca- tion of boundary. There was no indication that use of property was inconsistent with owner' possession. s Clark v. Kwasney (Mar. 12, 2012, Ont. Restitution Action by plaintiff for damages based on unjust enrichment or restitution. Plaintiff made com- mercial proposal to defendants in bid for name in connection with defendant' Name itself was of no economic benefit therefore no enrichment UNJUST ENRICHMENT ment. Defendants did not accept plaintiff ' another bidder. However, defen- dants subsequently used name that plaintiff had coined in con- nection with retail development they created. Action dismissed. Plaintiff failed to make out case in breach of confidence or based upon broader concept of unjust enrichment. Name never belonged to plaintiff nor was it received by defendant from plaintiff. Evidence established that name itself was of no eco- nomic benefit to defendant, and therefore, there was no enrich- ment of or benefit to defendant. Freeman v. Mnjikaning First Nation (Feb. 1, 2012, Ont. S.C.J., Stinson J., File No. 03-CV-245569CM3) 213 A.C.W.S. (3d) 784 (14 pp.). s proposal and chose ONTARIO CRIMINAL CASES Appeal Summary conviction appeal of accused who was convicted of obstructing police officer. On July 28, 2008 police officer attended at coffee shop and was informed that there was dispute between staff and accused and accused was told not to return. Officer attended at accused' Judge properly instructed himself as to frailties of eyewitness identification GROUNDS tage. He could not attend at front door because of construction that made it inaccessible. Officer went to rear of house and found patio, open glass patio door and person who sat behind computer. Person, who officer identified as accused, tried to hide but officer told him that he could see him. Accused was dressed as a woman. Officer told accused about coffee shop complaint and that he was looking for accused. Accused told officer accused was not there and he identified himself as someone else and he provided his birth date. Officer asked for identifica- tion but accused was not able to provide such documentation. He checked records for name and birth date of name he was given and he found nothing. When he searched accused' s cot- s found that he was subject to order which required him to stay at his residence. Officer attended at cottage on August 13, 2008 and he stopped car driven by accused. Accused produced licence that s name he s retail develop- S.C.J., Reid J., File No. 11-30034) 213 A.C.W.S. (3d) 758 (9 pp.). CASELAW showed his proper name. He was arrested for false identification he initially provided to officer on July 28. Based on three contacts that accused had with officer, trial judge did not misapprehend issue of identification based on officer' instructed himself as to frail- ties of eyewitness identification evidence and regarding dangers of convicting person based on such evidence. Judge did not err regarding legal test for finding of lawful execution of duty and he did not misapprehend evi- dence related to lawful execution of duty. There was no breach of implied licence to knock rule for officer only had to knock on door that he could access. He was not required to knock on front door. Judge reached proper conclusion when he found accused guilty of obstructing police officer. R. v. Tonner (Feb. 13, 2012, Ont. S.C.J., Kershman J., File No. 675/10) 100 W.C.B. (2d) 385 (19 pp.). s evidence. Judge properly Assault Two accused, both police offi- cers, jointly charged with one count of assault causing bodily harm. Complainant alleged that officers severely beat him while arresting him for public intoxica- tion. Officers' account of arrest was that complainant resisted, there was struggle, complainant fell hard to ground, and that offi- cers brought him under control and handcuffed him, on ground, without ever striking him. There was laceration to complainant' Medical evidence equivocal as to cause of complainant' ASSAULT CAUSING BODILY HARM s injuries scalp that required stitches and he had two broken ribs. Appeal allowed, new trial ordered. Trial judge' s cal evidence played "essential part in reasoning process" resulting in his conclusion that officers had "repeatedly struck" complainant with "blows" and that there had been beating as opposed to fall during arrest. Medical evidence, standing alone, was equivocal as to cause of complainant' s misapprehension of medi- ries, and court had already found complainant not credible or reli- able. Court was not satisfied that trial judge made necessary find- ings for convictions to rest on Crown' s inju- "unlawful arrest". s independent theory of R. v. Ing (Mar. 1, 2012, Ont. S.C.J., Code J., File No. AP 70/11; AP 71/11) 100 W.C.B. (2d) 399 (11 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused charged with posses- sion of marijuana and possession of oxycodone. Officer said that due to some erratic movements he stopped vehicle accused was driving, smelled burnt marijua- na, and asked about it. Accused acknowledged Court satisfied stop initiated to check accused' s sobriety having earlier www.lawtimesnews.com smoked some in car and having some in his possession, at his feet. Officer retrieved it and arrested accused, put him through some sobriety tests and later searched vehicle more thoroughly and found oxycodone in console. Accused disputed officer' sion of events, said there was nothing wrong with his driving and he was told not reason for stop, and denied admitting to officer that he had been smok- ing and being still in possession. No s. 9 breach, accused guilty of possession of marijuana. Court preferred officer' s ver- accused's on issue of his driving. s sobriety. s evidence to Court was satisfied stop was ini- tiated to check accused' Accused was well off any route between Oakville and Guelph and, Court inferred, was pretty much lost, inattentive and bewil- dered as to his route and his driv- ing. Questioning and roadside sobriety assessment were validly grounded in same legal authority as stop. R. v. Khan (Mar. 6, 2012, Ont. C.J., Duncan J.) 100 W.C.B. (2d) 404 (19 pp.). Conspiracy CONSPIRACY TO EFFECT UNLAWFUL PURPOSE Two accused applied for directed acquittals. Accused were charged with two counts of conspiring murder and two counts of con- spiring aggravated assault upon two different intended victims. First accused was additionally charged with four matching counts of counselling second accused to commit those offenc- es. Second accused was addition- ally charged with having assault- ed one of conspiracy' Agreement between accused to carry out stabbing of victims with a weapon (remote control) and of assaulting other. Accused were allegedly overheard plan- ning murders/assaults in a store by store owner who kicked them out and called police. First accused had been charged and found not criminally responsible on a series of death threats to individuals who would not give him money. The two alleged con- spiracy targets were individuals who had also refused to give first accused money. Applications dismissed. There was admissible evidence, if believed, of agree- ment between accused to carry out common objective of stab- bing to death intended victims. Evidence of first accused' s victim's and actions was evidence of what he wanted second accused to do and how he wanted him to do it to two identified victims. R. v. Abou Al Rashta (Jan. 30, 2012, Ont. S.C.J., O'Marra J., File No. s words W.C.B. (2d) 417 (9 pp.). Contempt Of Court GROUNDS 11-70000031-0000) 100 July 9, 2012 • law Times plete agreement that was found to exist in trial judgment. Trial was held determining that there was agreement between par- ties regarding purchase and sale of shares in companies owned by personal parties. Motion granted. Personal defendant was ordered to complete share trans- fer. There was currently four and one-half year delay in complet- ing requirements of judgment. By continually trying to get better deal, personal defendant had frustrated completion of agreement of purchase and sale. Actions of personal defendant were deliberate and outside boundaries of judgment. Scenna v. Stanford (Apr. 20, 2012, Ont. S.C.J., Glass J., File No. 7720/05) 100 W.C.B. (2d) 418 (6 pp.). DISCOVERY Motion by defendants to strike out plaintiffs' motion to compel production of documents from non-parties. Plaintiffs owned and operated restaurant under fran- chise agreement with defendant company. Plaintiffs brought action for remedy for breach of agree- ment, alleging defendants failed to disclose non-parties already oper- ating franchise in same territory. Plaintiffs conducted examination for discovery of defendants in September 2010, filed trial record in October 2010 and filed report indicating readiness for trial in February 2011. At pre-trial con- ference in July 2011, trial set for September 2011 delayed until 2012. Plaintiffs brought motion to compel production of documents from non-parties, specifically competing franchisee and repre- sentative. Defendants objected on basis plaintiffs, having filed trial record and set matter down for trial, precluded by Rule 48.04(1) of Rules of Civil Procedure (Ont.), from initiating or continuing any motion or form of discovery with- out leave of court. Motion grant- ed. Setting matter down for trial not mere technicality. Relief from prohibition under Rule 48.04(1) granted only where substantial or unexpected change in circum- stances would make refusal mani- festly unjust. No such evidence here. Meloro Restaurants Ltd. v. Little Caesar of Canada Inc. (Mar. 29, 2012, Ont. S.C.J., MacKenzie J., File No. CV-09-4731-00) 213 A.C.W.S. (3d) 587 (12 pp.). Setting matter down for trial not mere technicality Motion by plaintiffs for finding that personal defendant was in contempt by refusing to com- Actions of defendant deliberate and outside boundaries of judgment Appeal by defendants from order by master ruling on refusals motion that defendants' privi- lege had been waived. Plaintiff was private educational institu- tion that provided vocational programs to students for fee. Defendant was Superintendent of Private Career Colleges of Ministry of Training Colleges and Universities, and defendants D. and B. were Superintendent' designates to carry out powers Master incorrect in analysis of whether defendants had waived privilege s

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