Law Times

Law timeS • September 3, 2012 of public policy that person who killed another could not share in deceased' and application was dismissed. Appeal allowed. Public policy rule was that person who was not guilty by reason of insan- ity, or not criminally responsible on account of mental disorder, was not prevented from taking under insurance policy. Public policy rule did not prevent ap- pellant from receiving proceeds of insurance policy. Civil Reme- dies Act, 2001 (Ont.), did not re- place common law rule of public policy that did not prevent not criminally responsible accused from taking under insurance policy or will. Act and common law rule served different func- tions and should each operate in own spheres. Common law rule did not prevent appellant from receiving proceeds of policy but it was open to Attorney General to bring application under s. 3 of Act and court would then have to determine whether it would clearly not be in interests of jus- tice to forfeit proceeds to Crown. Proceeds of insurance policy were to be paid to appellant. Dhingra v. Dhingra Estate (Apr. 24, 2012, Ont. C.A., Rosen- berg, Cronk and Watt JJ.A., File No. C53965) Decision at 204 A.C.W.S. (3d) 155 was reversed. 214 A.C.W.S. (3d) 954 (17 pp.). s estate applied here Police Special Investigations Unit ("SIU"), civilian agency em- powered by Police Services Act (Ont.), to conduct independent investigations into serious in- juries and deaths allegedly re- sulting from criminal offences committed by police officers, created in response to public concern regarding impartial- ity and transparency of police investigations. Role of SIU con- troversial. Dispute concerned scope of SIU' Specific mention of "former police officers" not required to achieve intended legislative purpose GENERAL date under s. 113(5) of Act "The director may, on his or her own initiative, and shall, at s investigative man- quest of the Solicitor General or Attorney General, cause inves- tigations to be conducted into the circumstances of serious in- juries and death that may have resulted from criminal offences committed by police officers". Peel Regional Police ("PRP") re- ceived complaint from member of public alleging she was sexu- ally assaulted by member of PRP and assault witnessed by second police officer. PRP notified SIU but challenged its jurisdiction over complaint on basis that of- ficers allegedly involved retired prior to creation of SIU. PRP ap- plied for declaration SIU had no jurisdiction. Application judge concluded SIU had jurisdiction under s. 113(5) of Act which applies retrospectively to afford SIU jurisdiction to investigate alleged offences committed by former police officers and of- fences that allegedly occurred the re- prior to its creation. He held that procedural rights exception and public protection exception ap- plied to presumption against retrospectivity of legislation and dismissed application. Ap- peal dismissed. Language of s. 113(5), when read in grammati- cal and ordinary sense, in con- text of entire legislative regime governing SIU, grants SIU ju- risdiction to investigate alleged criminal offences causing seri- ous injuries and death commit- ted by persons who were serving police officers at time of conduct at "committed by police officers". Temporal focus is time of con- duct said to constitute criminal offence. Nothing in language suggests jurisdiction depends on employment status of involved police officer at time of investi- gation. Specific mention of "for- mer police officers" not required to achieve intended legislative purpose. Section 113(5) affects procedural and not substantive rights. It provides different, al- ternative mechanism for gather- ing of information and evidence in investigations of alleged crim- inal offences said to involve po- lice officers. Application judge did not err in holding that pro- cedural rights exception to pre- sumption against retrospectivity of legislation applied. Peel Regional Police v. On- tario (Special Investigations Unit) (May 7, 2012, Ont. C.A., O'Connor A.C.J.O., Laskin and Cronk JJ.A., File No. C53753) Decision at 201 A.C.W.S. (3d) 558 was affirmed. 214 A.C.W.S. (3d) 986 (37 pp.). issue. Operative phrase is Professions accounts be referred to assessment Application by applicant for or- der referring certain accounts rendered by respondent, law firm to assessment. Applicant and certain of its senior officers and directors were investigated and prosecuted by Ontario Se- curities Commission ("OSC"). It was alleged that applicant had breached various provisions of Securities Act (Ont.), and had acted contrary to public inter- est. Personal respondent hired law firm to represent him in OSC proceeding. Applicant was required by terms of indemnity agreement to indemnify re- spondent for all costs, charges and expenses associated with their defence of OSC proceed- ing, including their legal bills. Law firm' Just and equitable that unpaid BARRISTERS AND SOLICITORS and one-half year timeframe totalled just over $1.5 million. Applicant sought three ac- counts to be assessed, namely accounts paid more than twelve months prior to current appli- cation, those paid within twelve months of date of application, and unpaid accounts. Appli- cation granted in part. It was ordered that unpaid accounts referred to assessment. It was ordered that accounts paid s accounts during two CASELAW more than 12 months prior to application were not referred to assessment. Each account was considered final, not interim. Accounts were all paid by ap- plicant without complaint. Accounts were not labelled "interim" and were payable immediately upon delivery. It was ordered that accounts paid within 12 months of date of ap- plication were not referred to assessment. No special circum- stances existed. It was just and equitable that unpaid accounts be referred to assessment. Coventree Inc. v. Stockwoods LLP (May 7, 2012, Ont. S.C.J., Lederman J., File No. CV-12- 00444102-0000) 214 A.C.W.S. (3d) 989 (12 pp.). Right of way over respondent's Right of way could not be extinguished by non-use Real Property EASEMENTS land was created in 1964 by express reservation. Error was made when property was con- verted to land titles. Land Reg- istrar incorrectly described property as being subject to right of way instead of having benefit of right of way. Applica- tion was allowed. Respondent did not prove abandonment of right of way. There was no sug- gestion there was express re- lease by dominant land owners. No argument was made that right of way was extinguished by operation of law. Right of way could not be extinguished by non-use. There was never re- lease of right of way. Dominant land owners did not knowingly with full appreciation of rights intend to abandon right of way. Respondent had actual notice of right of way over servient land. Respondent was not in- nocent party. Justice of case and equity necessitated that order be made requiring Land Regis- trar to rectify parcel registers for dominant and servient lands as registered by applicant. McCormack v. Ciampanelli (May 22, 2012, Ont. S.C.J., MacPher- son J., File No. 3407/11) 214 A.C.W.S. (3d) 1003 (13 pp.). "Publicly traded" did not mean "publicly traded in Canada" This was appeal from motion judge' Securities Regulation DEFINITIONS pellant was responsible issuer as defined in s. 138.1 of Securities Act (Ont.). Appellant was fed- eral corporation that had regis- tered office and principle execu- tive office in Ontario. Appellant' s decision finding that ap- shares were publicly traded over NASDAQ exchange and did not trade on any Canadian stock ex- change. Respondent resided in Ontario and was proposed rep- resentative in putative class pro- ceeding against appellant arising out of alleged misrepresenta- tions contained in press releases, financial statements and annual report released or presented by appellant in Ontario. Mo- s www.lawtimesnews.com tion judge found that appellant was responsible issuer within s. 138.1(b). Appeal dismissed. When words "publicly traded" in paragraph (b) of definition of "responsible issuer" were read in entire context and in gram- matical and ordinary sense, harmoniously with scheme of Act, object of Act and intention of legislature, gleaned from leg- islative history and words cho- sen, they did not mean "publicly traded in Canada". There was sufficient connection between Ontario and appellant to sup- port application of Ontario' ulatory regime to appellant. Leg- islative history did not establish that statutory cause of action un- der s. 138.3 of Act was intended to arise only if issuer was subject to continuous disclosure obliga- tions in province or territory of Canada or if responsible issuer' s reg- shares were publicly traded in Canada. Preferred approach to statutory interpretation sup- ported conclusion that words "publicly traded" in paragraph (b) of definition of "responsible issuer" did not mean "publicly traded in Canada". Respondent, Ontario resident who placed order in Ontario for shares of corporation based in Ontario, would reasonably expect that claim for misrepresentation in documents released or present- ed in Ontario would be deter- mined in Ontario. Abdula v. Canadian Solar Inc. (Mar. 30, 2012, Ont. C.A., Feld- man, Hoy JJ.A. and Spence J. (ad hoc), File No. C54372) Decision at 206 A.C.W.S. (3d) 736 was af- firmed. 214 A.C.W.S. (3d) 1006 (32 pp.). ONTARIO CRIMINAL CASES Charter of Rights ENFORCEMENT OF RIGHTS Accused applied for exclusion of evidence obtained through series of Charter violations. Accused came to police atten- tion when seen photographing fence for G-20 summit. Officer received accused's individual lapses of judgment or careless errors Breaches resulted from tion by claiming accused was being charged with jaywalk- ing, which there was no basis for because he had not been witnessed jaywalking. Accused was investigated and arrested for alleged plans to breach se- curity at G-20. Accused was not given chance to phone counsel for 12 hours, before which he was interviewed by intelligence officers, and gave statements, which were sup- posed to remain confidential, which ended up in knowledge of investigating officers who used that information to draft warrants to search accused's cottages and home, where items were found that result- identifica- s PAGE 19 ed in more serious charges. Crown conceded that warrants did not authorize seizure of computers and their removal from accused's home. Accused was not taken before court un- til more than 24 hours after his arrest. Court concluded that validly seized evidence, name- ly chemicals and related equip- ment found in accused's home, was "obtained in manner" that violated Charter. Evidence not excluded. Court found that of- ficer's use of ruse was serious error in judgment, not flagrant disregard of accused's Charter rights, in light of his ultimate purpose and reasonable con- cern for security at G20 that officer would have in those cir- cumstances. Breaches resulted from individual lapses of judg- ment or simply careless er- rors and there was no attempt to hide any Charter breaches from court. Impact on accused of Charter violations was not grave, particularly when court considered evidence that had already been excluded as result of Crown concessions. Evi- dence at issue was highly pro- bative of serious charges. R. v. Sonne (Apr. 23, 2012, Ont. S.C.J., Spies J.) 100 W.C.B. (2d) 876 (28 pp.). contumacious and egregious nature Application by applicant for or- der finding respondent in con- tempt, and for order for impris- onment. Respondent had been disbarred from practicing law by applicant licensing organiza- tion. Applicant was ordered to discontinue representing him- self or practicing as barrister or solicitor or by providing legal services in Ontario. Numerous previous proceedings for con- tempt orders resulted in find- ings of contempt and orders that respondent pay fines and costs. In letter draſted by respondent on behalf of his "clients", re- spondent referred to himself as paralegal. Application granted. It was ordered that respondent serve term of imprisonment of 14 days. Respondent wilfully and deliberately disobeyed or- der. Respondent clearly repre- sented and held himself out to be paralegal, provided legal ser- vices by negotiating legal inter- ests, rights or responsibilities of person, and represented person in proceeding, all contrary to s. 26.1 of Law Society Act (Ont.) and contrary to order. Respon- dent' Respondent's conduct was of Contempt of Court GROUNDS macious and egregious nature. While respondent had partially purged his contempt, he had not completely done. Period of incarceration was required. Fi- nancial penalty appeared to be ineffective as applicant did not pay fines. Law Society of Upper Canada v. Fingold (May 18, 2012, Ont. S.C.J., DiTomaso J., File No. CV- 10-0100008-00) 215 A.C.W.S. (3d) 625 (11 pp.). s conduct was of contu- LT

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