Law Times

Law Times • OcTOber 24, 2016 Page 15 www.lawtimesnews.com CASELAW successful party, was entitled to those costs. In light of outcome of appeal, municipality was entitled to its costs on application. Those costs should be fixed at $50,000, inclusive of disbursements and relevant taxes. Middlesex Centre (Munici- pality) v. MacMillan (Aug. 2, 2016, Ont. C.A., Doherty J.A., Gloria Epstein J.A., and Grant Huscroft J.A., CA C60543) Ad- ditional reasons to decision at 266 A.C.W.S. (3d) 746. 269 A.C.W.S. (3d) 774. Wills and Estates ESTATE ADMINISTRATION Respondent did not fail to meet standard required of estate trustee Brothers commenced will chal- lenge that was settled by agree- ment. After settlement respon- dent obtained certificate of ap- pointment of estate trustee with will. Parties agreed to interim distribution of $250,000 to each of respondent and applicant. Respondent made $250,000 dis- tribution to himself. Investment counsel holding estate assets was not willing to distribute appli- cant's distribution. Respondent made further distribution of $250,000 and arranged to pay application $500,000 without in- volvement of investment coun- sel. Respondent did not wish to distribute any further amounts pending receipt of tax clearance. Applicant asserted respondent did not act with even hand. Ap- plicant brought motion for in- terim distribution from estate of $1 million in total to each of par- ties. Motion dismissed. Evidence did not establish that respondent failed to meet standard required of estate trustee. It was not clear there was any outstanding infor- mation requested from applicant of any materiality and applicant's entitlement took form of pass- ing of accounts at time of final distribution of estate. History of release required in connection with settlement did not support allegation of lack of even-hand- edness on respondent's part. Applicant was made whole with distribution after respondent found means of working around concern of investment manager. Distribution sought was not ra- tionally connected to alleged breaches of respondent's duties as estate trustee. There was no basis for finding that respondent was not acting in his capacity as estate trustee with honesty, ob- jectivity and care. Furfari v. Furfari (Jul. 29, 2016, Ont. S.C.J., H.J. Wilton- Siegel J., CV-13-3145-00ES) 269 A.C.W.S. (3d) 754. Ontario Criminal Cases Appeal GROUNDS Trial judge's finding was not based on misapprehension of evidence After traffic stop, accused and passenger were arrested for fail- ing to comply with their respec- tive recognizances. Police officers returned to police car while they checked identification and to al- low accused to search for letter from surety, observing move- ment by accused and passenger within vehicle. Accused provided forged note from surety. After ac- cused and passenger exited car, officers observed handle of hand- gun sticking out from under f loor mat in back of car. Accused was convicted of possession of loaded prohibited firearm, un- authorized possession of firearm in motor vehicle, careless storage of firearm, and failure to comply with weapon prohibition order while passenger was acquitted of possession charges. Accused ap- pealed. Appeal dismissed. Trial judge found that movements of accused and passenger during traffic stop were confined to front seat of car and did not include any reaching into backseat area. Accused argued that trial judge erred in concluding evidence eliminated possibility of hastily discarded handgun and deprived him of theory that passenger hid handgun without accused's knowledge during traffic stop. Trial judge's finding was open to him on record and was not based on misapprehension of evidence. Police officers' evidence was that accused and passenger moved side-to-side and that any move- ment forward and back was con- fined to front seat. There was no direct evidence that accused or passenger had ever reached into back of car. Obvious implication of trial judge's finding was that movements were made in search for surety's note or in forging note that was provided to police. Theory that co-accused hid gun without accused's knowledge was both speculative and implausible. R. v. Bonilla-Perez (Jul. 6, 2016, Ont. C.A., S.E. Pepall J.A., M. Tulloch J.A., and G. Pardu J.A., CA C59123) Decision at 112 W.C.B. (2d) 558 was affirmed. 132 W.C.B. (2d) 107. Bankruptcy FALSE PRETENCES BY BANKRUPT Defendant contravened s. 198 of Bankruptcy and Insolvency Act (Can.) by fraudulently disposing of firm assets General contracting firm was formed by defendant in early 2006. Defendant was control- ling and directing mind and had previously been bankrupt, and his wife was sole share- holder. Defendant was made aware of cash f low problems by senior managers and liens by contractors began to appear in September 2007. Defendant made clear to senior manage- ment of firm throughout 2007 that he had plans for projects in Syria and Lebanon, and that he had arranged plan with Syrian government. Defendant drafted contract of purchase and sale of firm to bookkeeper at end of November. In order to free up planned $2 million to send to Lebanon/Syria, firm had taken and kept significant amounts from company under "factoring scheme" that should have gone to subcontractors, and bor- rowed $500,000 from company. Total of $1.7 million was sent to bank account in defendant's name in Lebanon. In January 2008, senior manager received phone call from defendant tell- ing him that money was frozen, was not going to be returned to Canada and that senior manag- er was to call bonding compa- nies and shut firm down. Losses arising from failure to return money to Canada amounted to approximately $3.8 million. Defendant was charged with various charges under Criminal Code and was also charged un- der Bankruptcy and Insolven- cy Act (Can.). Defendant was found guilty of all charges. Fi- nancial statements were inten- tionally falsified by defendant in order to misrepresent to all potential lenders, creditors, and financial institutions that firm was profitable so that he could obtain credit. It was found be- yond reasonable doubt that firm was insolvent from at least July 2007. Bankruptcy was neces- sary for orderly management of assets of firm and competing claimants where it was clearly insolvent. Since firm became bankrupt after clearly being in- solvent, he contravened s. 198 of Act when he fraudulently disposed of assets of firm that also included firm proceeds of house sale and firm receivables factored by lender. Defendant knowingly created, directed or connived at fabrication of false financial statements and false deposit slip intending that they be relied upon so as to obtain credit and bonding. R. v. Eid (May. 2, 2016, Ont. S.C.J., Timothy Ray J., Ottawa 12-20041) 132 W.C.B. (2d) 142. Extradition and Fugitive Offenders COMMITTAL FOR SURRENDER OR RETURN Attorney General of Canada's application for committal order was granted Accused was charged with child pornography offence in United States. Attorney General of Can- ada, as authorized by Minister of Justice ("Minister"), sought order committing accused for extradition pursuant to s. 29 Ex- tradition Act (Can.) ("Act"). Ac- cused did not dispute that test for committal under s. 29(1)(a) of Act had been met. However, accused sought stay of proceed- ings on ground that treatment he would receive in requesting state, Florida, would violate s. 7 of Canadian Charter of Rights and Freedoms. Attorney General of Canada brought application for committal order; accused brought cross-application for stay of proceedings under s. 24(1) of Charter. Application granted; cross-application dismissed. Potential future treatment and punishment that accused might face in Florida did not pertain to issues relevant to commit- tal hearing. Supreme Court of Canada has repeatedly held that potential treatment, such as cruel and unusual punishment, that person may face if ordered sur- rendered is relevant matter for Minister. It is only where stay is necessary to protect fairness of extradition hearing or court's integrity that extradition judge may consider alleged Charter breaches. Defence counsel did not suggest that there was any unfairness with actual conduct of committal proceedings. United States of America v. Ciprian-Guzman (Jul. 19, 2016, Ont. S.C.J., Spies J., Toronto 40/16) 132 W.C.B. (2d) 139. Provincial Offences GENERAL Issue of improper service should have been dealt with in Provincial Offences Court (Ont.) Accused owned residential property. Accused convicted of two breaches of the Building Code Act, 1992 (Ont.) for fail- ure to comply with two separate Property Standards Orders. Ac- cused's motion to prohibit pro- ceedings based in irregularities in summonses and improper service was dismissed. Accused appealed. Appeal dismissed. Accused challenged summons- es, but did not overcome pre- sumption of regularity. Issue of improper service should have been dealt with in Provincial Offences Court (Ont.). Appeal of motion to prohibit proceed- ings was moot as conviction had already been entered. R. v. de Boerr (Jun. 29, 2016, Ont. C.A., David Watt J.A., Gloria Epstein J.A., and K.M. van Rensburg J.A., CA C57200) 132 W.C.B. (2d) 162. Sexual Offences SEXUAL ASSAULT Trial judge thoroughly addressed evidence Concerns about something wrong having occurred at motel were first raised by two motel employees, when they observed complainant being taken out of motel by two older men. Em- ployees were concerned that complainant was young, she looked drunk or drugged, she was haphazardly dressed in way her panties could be seen, and she could not walk by herself, whereas two men with her were fully clothed and sober. Accused was first interviewed by police, called in to provide DNA sample and was charged with sexual as- sault. Complainant was 17-years old at time of offence while ac- cused was 25-years old. Accused claimed to have had previously had consensual sexual relations with complainant, who denied this and insisted she had boy- friend who was not accused. While it was accused's position that nothing untoward had hap- pened when parties drank in hotel room, after she got home, complainant told her mother she thought she might have been raped, she was brought to hospi- tal to get tested, and gave state- ment to police. It was determined accused could not be excluded as donor of male DNA profile from semen on vaginal swab. Complainant had met two men she was with and drank in hotel suites before. Complainant could not recall exactly what had hap- pened, having lost consciousness and all memory about 30 min- utes after parties started drink- ing. Accused claimed he believed complainant to be over 18-years old, her having been drinking when they met. Accused convict- ed of sexual assault. Trial judge found accused's evidence at trial was diametrically opposed to his statements to police, having orig- inally held position parties did not have sex. Trial judge found accused presented as very diffi- cult witness: his overall approach was to lie about what happened, in hope that allegations and even charge would just go away; when accused realized that he was mixing up his answers or when he thought that he was not being believed, he would backslide to suggestion of not understand- ing. Trial judge found accused had admitted, eventually, that he and other man had sex with complainant after she passed out but believed consent could be presumed from fact parties had sex before and complain- ant had come to drink with two older men in motel room. Trial judge found complainant was unconscious and unable to con- sent to sex. Court did not believe accused's claim to have had pre- vious sexual relations with com- plainant and Trial judge found court did believe complainant that they were only friends, and that they only saw each other pe- riodically and in presence of oth- ers. Accused appealed. Appeal dismissed. Trial judge properly took into account that accused gave evidence through interpret- er, and certain questions were not confusing merely because they elicited incriminating re- sponse. Trial judge thoroughly addressed evidence. R. v. Shahbaz (Aug. 16, 2016, Ont. C.A., Doherty J.A., K. van Rensburg J.A., and L.B. Roberts J.A., CA C59065) Decision at 110 W.C.B. (2d) 910 was affirmed. 132 W.C.B. (2d) 199. Trial ADJOURNMENT Accused was not entitled to entirety of transcripts Accused was involved in crimi- nal proceedings. On accused's motion, further transcripts were not ordered, extension of release pending appeal was set on terms, and adjournment was not grant- ed. Accused brought application to review order. Application dis- missed. Additional transcripts were not required. Transcripts provided exceeded requirements. Accused not entitled to entirety of transcripts. It was proper that rather than surrender into cus- tody at jail, she is to surrender into custody by appearing before panel who will hear appeal. R. v. Tran (Aug. 18, 2016, Ont. C.A., David Watt J.A., K.M. van Rensburg J.A., and L.B. Roberts J.A., CA M46654 (C60204)) 132 W.C.B. (2d) 203.

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