Law Times

March 6, 2017

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Law Times • march 6, 2017 Page 15 Tax Act was to withhold and re- mit to Canada Revenue Agency on account of full $1.5 million settlement amount. Corporation brought application for deter- mination of rights, and taxpayer brought motion for summary judgment for minutes to be en- forced. Application judge dis- missed corporation's application and partially granted taxpayer's motion, and awarded taxpayer costs of $28,565. Court of Ap- peal allowed corporation's ap- peal from judgment granting taxpayer's motion for summary judgment but dismissed corpo- ration's appeal of dismissal of its application as moot. Corpora- tion was awarded costs of appeal in amount of $15,000 inclusive of disbursements and taxes. Parties made submissions on costs of original application and motion. Corporation was awarded costs of $28,565 for court below. Cor- poration's offer to settle was of no relevance since it was made to settle corporation's own applica- tion, which was dismissed. Result on appeal, and as consequence, in court below, was mixed be- cause appeal was allowed on ba- sis of motion. Amount of $57,031 sought by corporation as partial indemnity costs was excessive. In court below, taxpayer, who had initially been successful on application and motion, received costs of $28,565. Reasonable amount of costs in court below was same amount as originally awarded to taxpayer. RJM56 Investments Inc. v. Kurnik (2017), 2017 CarswellOnt 197, 2017 ONCA 19, E.A. Cronk J.A., Paul Rouleau J.A., and Grant Huscroft J.A. (Ont. C.A.); addi- tional reasons (2016), 2016 Car- swellOnt 17210, 2016 ONCA 821, Cronk J.A., Rouleau J.A., and Hu- scroft J.A. (Ont. C.A.). Commercial Law TRADE AND COMMERCE Consumer protection Waiver of liability was read down in accordance with doctrine of notional severance Plaintiff voluntarily purchased season pass at ski resort and agreed to waiver for recreational use of defendant's property. Plain- tiff brought action for negligence related to injury while skiing at defendant's ski resort. Accord- ing to Consumer Protection Act, if consumer signs waiver of li- ability with supplier that waiver was unenforceable as it related to substantive and procedural rights that were protected by Act. Section 7(1) vitiates waiver of Act rights and returns them to con- sumer. Plaintiff wanted s. 7 of Act to interpret it in manner so as to vitiate defendant's entire compre- hensive waiver/release of liability which he signed. Plaintiff 's pro- posed interpretation of s. 7(1) of Act would have effect of eliminat- ing protections afforded to occu- piers by virtue of ss. 3(3) and 5(3) of Occupiers Liability Act which al- lows for waiver of liability for neg- ligence claims. Plaintiff brought motion for judicial determination of question of law concerning ap- plication and breadth of s. 7(1) of Consumers Protection Act. Mo- tion granted. Particular right at issue was deemed warranty that consumer shall receive services of reasonably acceptable quality as articulated in s. 9(1) of Consumer Protection Act. By operation of s. 7(1) of Act defendant could not disclaim liability for any breach of deemed warranty contemplated by s. 9(1) of Consumer Protec- tion Act. Defendant's waiver was read down in accordance with doctrine of notional severance to exclude from its ambit claims that involve protection of substantive and procedural rights contem- plated by Act and remainder of waiver remained enforceable. To strike whole waiver, when waiver contemplated more than just con- sumer protection claims, would be contrary to legislative intent of Consumer Protection Act. Schnarr v. Blue Mountain Resorts Ltd. (2017), 2017 Car- swellOnt 373, 2017 ONSC 114, E.R. Tzimas J. (Ont. S.C.J.). Personal Property ANIMALS Miscellaneous Trial judge erred in interpretation of Dog Owners' Liability Act(Ont.) Plaintiff, who at time was in ro- mantic relationship with defen- dant, offered to take defendant's dog for walk. During walk, dog, who was on leash attached to his collar, suffered seizure and became unconscious. When dog regained consciousness, he backed up, came out of his col- lar, slipped on ice and fell down embankment into ditch. Plaintiff tried to retrieve dog, but slipped into ditch and collided with dog, which bit her thumb, caus- ing her to lose her thumb above joint. Plaintiff brought action for damages for her injuries un- der s. 2 of Dog Owners' Liability Act, and also sued defendant in negligence. Motion judge dis- missed defendant's motion for summary judgment under Act, granted plaintiff 's cross-motion, and dismissed plaintiff 's claim in negligence. Defendant appealed and plaintiff cross-appealed. Ap- peal allowed and cross-appeal dismissed. Word "possesses" in definition of "owner" under Act includes person who is in physi- cal possession and control over dog just before it bites or attacks another person or animal. Trial judge erred in his interpreta- tion of "a person who possesses a dog" under Act. By requir- ing dominion as well as control over dog, for person to possess dog, motion judge read into Act higher standard for liability than unambiguous plain meaning of words required and one that was not consonant with Act's overall purpose of liability for those ex- ercising control over dog. Motion judge made palpable and overrid- ing error in finding that plaintiff was not in "possession" of dog. Wilk v. Arbour (2017), 2017 CarswellOnt 206, 2017 ONCA 21, Karen M. Weiler J.A., Paul Rouleau J.A., and Roberts J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 3058, 2016 ONSC 1179, M.D. Faieta J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law OFFENCES Murder Non-direction by trial judge amounted to misdirection CW and SH were in dispute over relationship and wanted to fight. Accused was CW's brother. Ac- cused was asked by CW to go to parking lot and watch out for him during fight. When accused arrived in parking lot, he saw CW and SH fighting. Instead of getting out of his vehicle to help his brother, accused drove truck towards both men. Accused ac- celerated, then applied braked. Truck fishtailed and struck SH and crushed him against wall. Accused then left area without offering any assistance to SH. Accused was convicted of sec- ond degree murder. Accused ap- pealed. Appeal dismissed, and conviction of manslaughter sub- stituted in place of conviction of second degree murder. Charge to jury did not adequately equip jury to determine nature and extent of accused's liability for death of SH. Failure of trial judge to make clear role of accident constituted non- direction amounting to misdirec- tion in circumstances of case. R. v. Ward (2016), 2016 Car- swellOnt 20379, 2016 ONCA 984, R.G. Juriansz J.A., David Watt J.A., and L.B. Roberts J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal Trial judge did not materially misapprehend evidence In reverse sting operation under instruction of investigator, ac- cused was arrested after he ac- cepted undercover officers' offer of drugs for sale and took pos- session of cocaine. Accused was convicted of possessing cocaine for purpose of trafficking and his application for stay of pro- ceedings based on abuse of pro- cess contrary to s. 7 of Canadian Charter of Rights and Freedoms was dismissed. Accused appealed from conviction and sentence. Appeal dismissed. Trial judge did not materially misapprehend evidence in dismissing abuse of process application. Trial judge did not err in finding that inves- tigator did not mislead superiors in asserting that options other than reverse sting operation had been exhausted or were likely futile or. Trial judge articulated several reasons for accepting that investigator believed he had tacit approval to direct undercover of- ficers to make offer to sell drugs and was entitled to come to con- clusion that he did based on re- cord before him. Trial judge used evidence that idea might have come from investigator's super- visor that permission might be forthcoming if accused made down payment for drug purchase to assist in evaluating context of discussions between supervisor and investigator and reasonable- ness of supervisor's assertion years later that his words could not have given investigator rea- son to believe he had permission. Trial judge's misstatement as to details of negotiations between accused and undercover officer did not constitute material mis- apprehension of evidence as it did not affect conclusion given many reasons provided for re- jecting accused's account. Trial judge did not err in rejecting ac- cused's argument that investiga- tor intentionally delayed or with- held disclosure as to prior request for reverse-sting operation and accepted that such failure to dis- close was inadvertent. There was no basis for interfering with trial judge's acceptance of investiga- tor's credibility. R. v. Jageshur (2017), 2017 CarswellOnt 165, 2017 ONCA 15, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Mill- er J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 13868, 2014 ONSC 5822, Clark J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 19273, Robert A. Clark J. (Ont. S.C.J.). POST-TRIAL PROCEDURE Detention and release after trial Accused's removal from disposition hearing was contrary to Criminal Code Practice and procedure. Accused was charged with resisting peace officer and failing to attend court and was found NCRMD. Ac- cused was diagnosed with op- positional defiant disorder and cannabis use disorder, and was found to be significant threat to safety of public. Ontario Review Board held hearing to review dis- position. Unrepresented accused was to participate via videocon- ference. From outset, accused ob- jected to being referred to by his name, insisting on title "General Executor". Accused was cut off from hearing, which proceeded in his absence with appointment of amicus to represent his interests. Board ordered conditional dis- charge of accused on conditions that were significantly less restric- tive than those of previous dispo- sition. Appeal by accused allowed. Criminal Code s. 672.5(10)(b)(i) grants Board chair discretion to order that accused be removed from disposition hearing where accused interrupts hearing so that to continue in his presence would not be feasible. Chair failed to ex- ercise required judicial patience and restraint before resorting to his power under s. 672.5(10)(b)(I). He made no effort to determine whether corrective measures or accommodations would have made it feasible to proceed with accused present. Five-second ulti- matum to accused made clear that chair was not open to attempting to find alternative acceptable way of addressing him. Board's action was hasty and precipitous and not in accordance with s. 672.5(10)(b) (I). Disposition set aside and mat- ter remitted to Board for rehear- ing before differently-constituted panel. Girard, Re (2016), 2016 Car- swellOnt 20381, 2016 ONCA 985, R.G. Juriansz J.A., David Watt J.A., and Lois Roberts J.A. (Ont. C.A.); reversed (2016), 2016 Car- swellOnt 12392, G.Y. Goulard Alt. Chair, C. MacIntyre Mem- ber, C. Krasnik Member, G. Tur- rall Member, and L. Steadman Member (Ont. Review Bd.). YOUTH OFFENDERS Youth Criminal Justice Act Crown did not rebut presumption of diminished moral culpability Accused young persons T and M were involved in planning shoot- ing of 16-year-old deceased, and were convicted of first degree murder. M and T were accepted for intensive rehabilitative cus- tody and supervision (IRCS) or- ders, if sentenced as youth. Youth court judge granted Crown's ap- plication to have adult sentences imposed and gave M and T life sentences with 10 years' parole in- eligibility. M and T had served 2.5 years of their adult sentences. M and T appealed. Appeals allowed; sentences varied. Adult sentences were set aside and youth sen- tences were substituted, of ten years with IRCS order, six years of which were to be in custody, for M, and ten years with IRCS order, four years of which were to be in custody, for T. Judge erred in concluding that IRCS program would not accomplish necessary rehabilitation by relying on spec- ulative concerns about M and T's willingness to cooperate with IRCS orders and other inaccurate assumptions about implementa- tion and enforcement of such or- ders. It was appropriate to exercise discretion to impose maximum youth sentences on top of time served of adult sentence. Crown did not rebut presumption of di- minished moral culpability of T or M. T and M were 16 years old at time of offence and resided in community of disadvantaged youths. T and M's participation in crime did not evidence level of maturity or independent judg- ment and foresight beyond that of adolescent, but evidenced im- maturity, impulsiveness, or other ill-considered motivation. T and M could be held sufficiently ac- countable for their criminal con- duct by imposition of ten-year youth sentence with IRCS or- der on top of time spent serving adult sentences. Ten-year youth sentence with IRCS order would provide intensive treatment and counselling and was best sentence to meet sentencing objectives of protecting public and rehabilita- tion. R. v. W. (M.) (2017), 2017 CarswellOnt 327, 2017 ONCA 22, Gloria Epstein J.A., S.E. Pep- all J.A., and K. van Rensburg J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 7925, 2014 ONSC 3436, Nordheimer J. (Ont. S.C.J.). CASELAW

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