Law Times

February 13, 2017

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Law Times • February 13, 2017 Page 15 derstood degree of impact its be- haviour had on plaintiff, noth- ing on face of statement of claim stated claim that could possibly succeed in court. Law offered no way to satisfy plaintiff 's com- plaint about loss of social life he wished to pursue at defendant's premises. Lawsuit had no rea- sonable chance of success and was frivolous. Clark v. Sports Cafe Cham- pions (2016), 2016 CarswellOnt 20105, 2016 ONSC 8046, F.L. Myers J. (Ont. S.C.J.). SUMMARY JUDGMENT Requirement to show no triable issue Motion judge did not use applicable rules to resolve conf lict Respondent was chiropractor S, who practiced at appellant clinic from 2010 to 2013. Principal of clinic increased percentage of billings due to clinic from 25% to 35%, without consent of S. S left clinic with patient files and clinic property. Clinic brought action against S for loss of earnings. S counterclaimed for share of bill- ings and damages. Both parties moved for summary judgment. S's motion was granted; clinic's motion was dismissed. Clinic claimed that there was factual dispute on evidence, which re- quired trial to be resolved. Clinic appealed from motion judg- ment. Appeal allowed. There was clear factual dispute present. Motion judge did not state how differences in evidence were to be resolved, appearing to prefer evidence of S. Motion judge did not use applicable rules to re- solve conf lict. Motion judge did not set out conclusions as to cal- culations of quantum of dam- ages. Without proper bases on these issues, judgment was to be set aside. Parties would be free to pursue matter towards trial. 1615540 Ontario Inc. v. Si- mon (2016), 2016 CarswellOnt 20022, 2016 ONCA 966, K. Feldman J.A., P. Lauwers J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 Carswel- lOnt 3477, 2016 ONSC 1623, Perell J. (Ont. S.C.J.). Public Law LIQUOR CONTROL Legislation Liquor Control Board of Ontario had right to determine price of spirits Alcohol and Gaming Commis- sion of Ontario (AGCO) granted applicant distillery's application for manufacturer's licence and retail store authorization for permission to sell spirits at store, on condition that distillery enter into contract with Liquor Con- trol Board of Ontario (LCBO). Contract required distillery to first sell spirits to LCBO and only then retain them for sale at retail store, and gave LCBO power to calculate mark-up and commission rates applicable to products sold based on com- bined cost and federal excise tax total. Price to be paid by con- sumer was price paid by LCBO when purchasing product plus LCBO's standard mark-up. Dis- tillery brought application for declaration that levy imposed by LCBO and charged on sale of spirits in retail store was ultra vires of existing legislation un- der ss. 53 and 90 of Constitution Act, 1867. Application judge dis- missed application. Judge held that mark-up imposed by LCBO was not tax but proprietary charge, or alternatively, contrac- tual term agreed to by distill- ery. Mark-up fit within criteria in jurisprudence as to whether charge was tax but judge held that mark-up constituted pro- prietary charge, as liquor may be subject to proprietary charge once it was supplied by province commercially. Distillery ap- pealed. Appeal dismissed. Judge was right in concluding that mark-up was proprietary charge and not tax, or alternatively, that mark-up was not tax because distillery agreed to it in contract. Under contract, LCBO owned spirits in distillery's store, and as owner of goods, LCBO had right to determine price, includ- ing mark-up. Mark-up was not exercise of government's public authority but of its private law rights. Judge did not err in find- ing that distillery was not under practical compulsion to obtain authorization to operate retail store. Toronto Distillery Co. v. Ontario (Alcohol and Gaming Commission) (2016), 2016 Car- swellOnt 19995, 2016 ONCA 960, E.A. Cronk J.A., R.G. Juri- ansz J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 5194, 2016 ONSC 2202, S.A.Q. Akhtar J. (Ont. S.C.J.). Torts NEGLIGENCE Duty and standard of care Trial judge did not err in application of standard of care After evening of drinking, M drove his vehicle into intersec- tion against red light and col- lided with city bus driven by R, which was entering intersection on green light. Collision re- sulted in fatal injuries to three of vehicle's occupants, including M, and catastrophic injuries to fourth occupant G. G plaintiffs brought action against, inter alia, M's estate, owner of vehicle, city, and bus driver. M's estate admitted liability for accident. Trial judge concluded that R was negligent in his operation of bus, in that he was travelling at excessive rate of speed on wet and slushy road and was look- ing from left to right, rather than in front of him, when he approached and then entered intersection. She held that R and city were 20 percent liable for ac- cident. R and city appealed lia- bility finding. Appeal dismissed. Trial judge did not err in her ar- ticulation of standard of care ap- plicable to R in circumstances. She expressly found that as pro- fessional driver, R should be held to higher standard of care. There was no error in trial judge's con- sideration of R as experienced bus driver or in her treatment of that fact as relevant to deter- mination of applicable standard of care to which R was bound. Nor did trial judge err by rely- ing on R's status as professional driver to improperly impose in- appropriate, elevated standard of care. Trial judge did not err by holding that R's momentary in- attention to intersection, when he looked right and left and into bus mirrors, was one of several factors that, together, consti- tuted negligence. Trial judge's reasons revealed no error in her articulation of applicable stan- dard of care or in her application of that standard to facts as she found them. Gardiner v. MacDonald Estate (2016), 2016 Carswel- lOnt 19895, 2016 ONCA 968, E.A. Cronk J.A., R.G. Juriansz J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1338, 2016 ONSC 602, Toscano Roccamo J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 7196, 2016 ONSC 2770, Toscano Roc- camo J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Arrest or detention [s. 10] Police breached accused's Charter rights Accused was convicted of dan- gerous driving causing bodily harm and assault with weapon, namely motor vehicle. Charges arose out road rage incident in- volving accused and van driver, who cut accused's car off, got out of his van, and approached ac- cused. Accused drove forward, striking van driver. Following his arrest for dangerous driving, accused spoke to duty counsel, but after interview officer told him that he was also going to be charged with assault with weap- on, accused asked to contact his own lawyers. Interview officer attempted to contact accused's lawyers, but upon being told that accused had spoken to duty counsel, officer concluded that accused had had opportunity to consult with counsel and con- tinued interview. Accused ap- pealed convictions, alleging that trial judge erred in failing to find that his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were breached and in failing to exclude evidence of police interview under s. 24(2) of Charter. Appeal allowed. In determining whether accused's jeopardy had changed, trial judge erred in focusing on facts that charges arose from same circumstances, offences carried same maximum penalty, and new charge was hybrid offence. Assault with weapon charge sig- nificantly increased accused's alleged moral blameworthiness as it required proof that he acted intentionally to harm van driver, rather than that his driving con- stituted marked departure from norm, and it markedly increased potential penalty. It would be speculative to assume that ad- vice from duty counsel, and ac- cused's reaction to that advice, would necessarily have been same regardless of any advice about additional charge. Trial judge erred in failing to find that police breached accused's rights under s. 10(b) of Charter, and his s. 24(2) analysis attracted no def- erence. New trial ordered. R. v. Moore (2016), 2016 Car- swellOnt 19828, 2016 ONCA 964, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.). NARCOTIC AND DRUG CONTROL Evidence Reasonable and probable grounds for arrest were objectively established Following 911 call, dispatch radi- oed officers with information of person with gun. Dispatch alert- ed officers that suspects had fire- arm and were in silver four-door Dodge sedan. Two occupants of vehicle were light-skinned black males who appeared to be under 24 years of age. Officer stopped Dodge sedan at issue and initi- ated high risk takedown. Officer handcuffed accused and told him that he was under arrest for possession of firearm. Accused was found to have marijuana and cocaine on his person. Ac- cused brought unsuccessful application to have cocaine ex- cluded from evidence. Accused was convicted of possession of cocaine for purpose of traffick- ing. Accused appealed decision to include evidence of cocaine. Appeal dismissed. When of- ficers first encountered suspect vehicle, it was being driven at high rate of speed. Everything that officers saw was consistent with information that 911 callers had given. There was no reason to discount information. Offi- cers had every reason to believe that occupants of suspect ve- hicle were in possession of hand- guns. Reasonable and probable grounds for arrest were objec- tively established. R. v. Carelse-Brown (2016), 2016 CarswellOnt 19894, 2016 ONCA 943, K. Feldman J.A., E.E. Gillese J.A., and M.L. Ben- otto J.A. (Ont. C.A.). OFFENCES Conspiracy Appeal from conviction of conspiracy to export was dismissed H was detained at border and 57,000 ecstacy pills were found hidden in vehicle. H told po- lice that accused and A enlisted her to drive vehicle into United States. H made phone calls to accused which were recorded by police. Accused was convicted of conspiracy to export. Accused appealed. Appeal dismissed. Even without proof that H was party to conspiracy, there was strong evidence that accused and A were joined in common purpose to export ecstasy to United States. Trial judge did not errr in concluding that accused's anxiousness during phone con- versations corroborated H's testimony. No error in assess- ment of H's credibilty. Accused offered no specifics regarding complaints about disclosure. R. v. Chibani (2016), 2016 CarswellOnt 19656, 2016 ONCA 952, K. Feldman J.A., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.). TRIAL PROCEDURE Charging jury or self–instruction New trial was ordered R. v. W. (D.). Accused was con- victed of various sexual offences contrary to ss. 151, 152 and 271 of Criminal Code. Complain- ants were two young girls, ages three and five, who attended day care centre accused oper- ated in his home. Trial judge ad- mitted complainants' unsworn statements to their parents and their subsequent unsworn vid- eotaped statements to police as evidence at trial under prin- cipled approach to hearsay rule; and found that complainants' evidence could be admitted as similar fact evidence to show specific propensity by accused to abuse children under his care. Trial judge accepted evi- dence of each complainant and concluded that accused's testi- mony denying allegations was unworthy of belief and did not raise reasonable doubt. Accused appealed convictions. Appeal allowed. Trial judge erred in re- lying on improper and errone- ous considerations in assessing accused's evidence. After refer- ring to R. v. W. (D.) and not- ing that accused's defence was simple denial of allegations, trial judge noted that defence counsel raised issue of possible animus on part of parents of one of com- plainants. Crown acknowledged it is inappropriate for trial judge to consider this type of trial tac- tic by counsel when assessing reliability and credibility of ac- cused's testimony. Trial judge's statement was clear in impugn- ing accused's credibility based on his counsel's trial tactics, and was also contained in portion of reasons that addressed ac- cused's evidence following ref- erence to R. v. W. (D.). Contrary to trial judge's finding, accused's evidence about operation of day care centre was relevant, given that complainants' evidence ap- plied across counts to demon- strate his propensity to abuse young children under his care. New trial ordered. R. v. Wills (2016), 2016 Car- swellOnt 19996, 2016 ONCA 965, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.). CASELAW

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