Law Times

Law times • OctOber 22, 2012 This was appeal from divisional court' precluded from pursuing claim related to common elements CONDOMINIUMS Condominium owner not action. Respondent developer developed high-rise condomin- ium complex. Appellant agreed to purchase eight units s dismissal of appellant's developer. Four units were to be furnished as required for par- ticipation in short-term rental program. Other four units were to be constructed in way that made them suitable for use as appellant' from involved custom design and finishes. Disagreement between parties arose over adequacy of common elements. Appellant commenced action seeking spe- cific performance of agreement with respect to custom design and finishes. Condominium corporation commenced action on behalf of itself and individual unit owners for common ele- ments deficiencies. Developer took position that some of ap- pellant' s head office, which lation to common elements and appellant did not have standing to pursue claims due to s. 23(1) of Condominium Act, 1998 (Ont.). Divisional court con- cluded that s. 23(1) of act grant- ed exclusive standing to condo- minium corporation to sue in relation to common elements. Appeal allowed. Word "may" in s. 23(1) of act was permissive. It empowered condominium cor- poration to sue on own behalf and on behalf of all unit own- ers in relation to common ele- ment deficiencies, among other things. Section 23(1) of act did not preclude individual condo- minium owner from pursuing claim relating to common ele- ments where what was at issue was contractually unique prob- lem or other unit-specific wrong that raised discrete issue relating to common elements immedi- ately pertaining to owner' s complaints were in re- Section 23(1) of act did not pre- clude appellant from advanc- ing claim under agreement of purchase and sale in relation to common elements. 1420041 Ontario Inc. v. 1 King West Inc. (Apr. 20, 2012, Ont. C.A., Cronk, Blair JJ.A. and Stra- thy J. (ad hoc), File No. C53690) Decision at 185 A.C.W.S. (3d) 357 was reversed. 217 A.C.W.S. (3d) 480 (24 pp.). s unit. Torts LIBEL AND SLANDER Defendant' Motion by plaintiff in defama- tion action for summary judg- ment. Defamatory e-mail sent by defendant from his work e- mail address to circle of friends and colleagues. Plaintiff was furniture store that sold dining room set to defendant' attacks which relied on distortion of facts Defence of fair comment plead- ed. Motion granted and plaintiff awarded damages of $15,000. This was not a matter of public s parents. s remarks personal interest but rather a daughter's attempt their private commercial dis- pute. No evidence to prove comments in e-mail true. Com- ments which attack honesty, trustworthiness, ethics, or greed of an individual or business are not comment. Defendant' to support parents in marks simply personal attacks which relied on distortion of facts. Issue of malice would have disentitled defendant to defence even if defence of fair comment had been available. 2964376 Canada Inc. v. Bisaillon (May 25, 2012, Ont. S.C.J., Me- tivier J., File No. 10-49601) 217 A.C.W.S. (3d) 500 (12 pp.). s re- ONTARIO CRIMINAL CASES Appeal Accused charged with robbery and possession of dangerous weapon. Accused approached couple in van and demanded money. When they refused he brandished large kitchen knife and stated that he had AIDS. Accused was determined to be fit to stand trial but incapable of knowing wrongfulness of his actions therefore not crimi- nally responsible for his ac- tions. Accused was detained and remanded to jurisdiction of Ontario Review Board. Ac- cused appealed determination and sought Determination that accused not criminally responsible could not be sustained FRESH EVIDENCE evidence. Appeal granted. Diag- nosis of mental illness was ruled out by accused' to produce fresh and it was asserted that best fit for accused at time of offence was substance-induced psycho- sis. Determination that accused was not criminally responsible could not be sustained. Convic- tion should be entered and sen- tence of one day. R. v. Evans (June 18, 2012, Ont. C.A., Laskin, Cronk and Pep- all JJ.A., File No. C53599) 102 W.C.B. (2d) 95 (9 pp.). s treatment team Charter of Rights Crown brought application for ruling that videotaped state- ment given by accused to de- tective was voluntary. Accused applied for ruling that his rights under ss. 7 and 10(b) under Ca- nadian Charter of Rights and Freedoms violated. Crown ap- plication granted. Accused was advised of his right to silence be- fore made admissions. Accused failed to establish breach of right to silence. Accused was given opportunity to speak with law- yer at each relevant point. Ac- cused failed to establish breach of right to counsel. Even if there had been breach statements would have not been excluded. State' RIGHT TO COUNSEL Accused failed to establish breach of right to silence s conduct was not serious, CASELAW statement was voluntary and re- liable, and those factors weighed in favour of admission. R. v. Cubacub (Aug. 1, 2012, Ont. S.C.J., Ricchetti J., File No. CRIMJ(P) 937/17) 102 W.C.B. (2d) 141 (22 pp.). Show cause hearing determining whether or not lawyer should be found in contempt of court. Lawyer was counsel for some- one charged with sexual assault. Matter was set for full day pre- liminary inquiry. Neither lawyer nor his client appeared. Lawyer had history of mismanaging his court schedule. Lawyer was ad- vised that he would be required to attend before court and show cause as to why he should not be held in contempt. Lawyer was not found to be in contempt. Evidence did not establish ba- sis for contempt finding. Both testimony and documentation showed great deal of disorgani- zation and confusion, inatten- tion to obligations to both court and client, and negligence on part of lawyer. However, docu- mentation did not support any inference that conduct was de- liberate or intentional. R. v. Watkins (June 26, 2012, Ont. C.J., McKay J.) 102 W.C.B. (2d) 127 (6 pp.). Negligence on part of lawyer but conduct not deliberate or intentional Contempt of Court GROUNDS Motion by father for finding of contempt against mother. Par- ties had brief relationship, and were not residing together at time of child' Wife unilaterally made move without consultation or consent final order provided that par- ties share joint custody of child and that his primary residence was to be with mother, and that if party intended to move outside of city in which parties resided, they would give at least 60 days notice in order to re- negotiate agreement. Mother proposed move outside of city to father. Father opposed move. Motion granted. It was ordered that child be returned to city and that joint custody arrange- ments continue. Wife unilater- ally make move she wanted to make without further consul- tation or consent from father, which was totally at odds with pre-existing understanding as to how matters of custody and access would be handled. Wife' s birth. Terms of breach of court order was delib- erate and wilful beyond reason- able doubt. Ivan v. Leblanc (Aug. 1, 2012, Ont. S.C.J., McKelvey J., File No. 316/07) 102 W.C.B. (2d) 129 (7 pp.). s Drug Offences POSSESSION Accused charged with posses- sion of marijuana and theſt of marijuana. Accused was police www.lawtimesnews.com Prejudice accused suffered not related to delay officer. As part of operation ac- cused apprehended an under- cover police officer who was posing as a civilian. Accused recovered a certain some of drugs but only logged half and took possession of other half. Accused was apprehended as he was driving home at end of his shiſt. Accused gave inculpatory statement at scene and later on video. Accused brought applica- tion based on violation of right to be tried within time. Total time from arrest to trial was 19 months and 28 days. Accused did not waive delay during pro- ceedings. Intake period was 5 months and 25 days. Delay of 3 months and 8 days attributable to Crown. Total of three months and 13 days of delay attribut- able to defence. Neutral delay was one month and 14 days. Institutional delay was only six months and 3 days. Application dismissed. Institutional delay was well under Guidelines. Prej- udice accused suffered not re- lated to delay. Societal interest in having case heard on merits out- weighed other considerations. R. v. Robson (June 28, 2012, Ont. C.J., LeRoy J.) 102 W.C.B. (2d) 136 (21 pp.). Evidence Accused charged with robbery, robbery while using restricted firearm, using imitation firearm to commit indictable offence, being masked with intent Accomplice did not have reason to falsely implicate friend ADMISSIBILITY commit indictable offence, and failing to comply with condition of recognizance. Accomplice identified accused as one of par- ticipants in robbery but later re- canted it. Accomplice stated that identification was made as result of police coercion. At issue was whether statements could be admitted for truth of their con- tents. Evidence admitted. Ac- complice was available for cross- examination. Jurors could assess his credibility and reliability of statements. Accomplice did not have reason to falsely impli- cate his friend. Statements were made against interest and fell into exception to hearsay. Ac- complice has opportunity to ob- serve what he described. R. v. Warsame (July 6, 2012, Ont. S.C.J., Ducharme J., File No. 11- 50000109-0000) 102 W.C.B. (2d) 140 (26 pp.). to Preliminary Inquiry Application to overturn dis- charge of first-degree murder charge. Three accused broke into home of individual to steal marijuana, money and guns. When individual claimed to not know where they were, one of accused shot gun he had pressed to individual' COMMITTAL FOR TRIAL No air of reality to theory of planning and deliberation killing him. Crown sought first degree murder charges either via planning and deliberation s back, Page 19 or commission during course of unlawful confinement. Accused were charged with first degree murder, but were committed for trial on charge of second de- gree murder aſter preliminary inquiry. Application dismissed. Reasons of preliminary inquiry judge found there was no air of reality to theory of planning and deliberation. Preliminary inquiry judge found evidence did not meet threshold require- ment for unlawful confinement. In summation he confirmed he had considered all evidence and submissions and found neither route to committal on first de- gree murder could succeed. R. v. Barnett (May 11, 2012, Ont. S.C.J., Warkentin J., File No. 10- 1903) 102 W.C.B. (2d) 155 (15 pp.). Release from Custody REVIEW OF ORDER OF JUSTICE Review of judicial interim re- lease. Accused was charged with possession of cocaine, possession of credit cards ob- tained by crime and breach of recognizance. While on release he allegedly possessed cocaine and crack cocaine for purpose of trafficking, possessed ec- stasy, marijuana and proceeds of crime, six weapons offences and four charges relating to credit card fraud. He had been denied bail on the secondary ground. Application granted. Justice of the Peace made some factual errors. Accused to live with his mother as his surety on $250,000 bail without deposit. Strength of Crown' Accused's knowledge and control of items in question issue; search raised some Char- ter issues and accused' edge and control of the items in question. R. v. Stojkovic (July 11, 2012, Ont. S.C.J., Miller J., File No. DR(P)2016/12) 102 W.C.B. (2d) 158 (6 pp.). s case was at s knowl- Sentence ASSAULT Reasons for sentence. Accused, 21, was charged with assault with a weapon, attempt mur- der, unlawful confinement, damaging police automobile and assault, all in relation to his domestic partner. He pleaded guilty to aggravated assault. Ac- cused had both adult and youth criminal record for noncom- pliance and violence. Victim received broken jaw which had to be wired shut for six weeks, and stitches to her scalp. Attack involved death threats and some pre-planning. Sentence of three years' imprisonment, with credit for one year and 21 days presen- tence custody; two years' proba- tion; ten-year firearm and weap- ons prohibition; DNA order. R. v. Brooks (June 1, 2012, Ont. S.C.J., Allen J., File No. 11- 30000636-0000) 102 W.C.B. (2d) 162 (10 pp.) Attack involved death threats and some pre-planning LT

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