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PAGE 18 room in payor's home. Worker justified according to number of hours that she performed. Appeal was only person hired by payor. Worker was daughter of pay- or. Appeals officer found that worker' s total salary was not decision was reasonable. There was no basis on which it could be concluded that Minister misunderstood facts. Payor did not produce any evidence be- yond her general statement to establish that worker worked 40 hours per week during relevant time. When new facts presented at hearing, testimony and ex- hibits presented at hearing with respect to remuneration paid, terms and conditions, duration and nature of work performed, Minister' dismissed. Minister's sonable. Doucet v. M.N.R. (June 20, 2012, T.C.C., Miller J., File No. 2011-2234(EI)) 217 A.C.W.S. (3d) 732 (8 pp.). s decision was still rea- ONTARIO CRIMINAL CASES Defences ENTRAPMENT Accused charged with offer- ing to transfer firearm while not being authorized to do so, contrary to s. 99(1)(b) of Crimi- nal Code. Accused sold drugs to undercover officer. During transaction, accused stated that he could get officer handgun for $2,500. Ongoing drug dis- cussions and transactions took place, interspersed with further discussions about transferring gun to officer. Accused argued that facts did not amount to of- fer, that offer was never serious, and that offer was so devoid of particulars that providing accused opportunity to commit offence Officer did not go beyond amount to offer at all. Accused argued he was entrapped by officer. Accused found guilty. Court accepted accused' it did not dence that he never had access to gun or had any intention to carry through with offer. No transaction ever took place, notwithstanding significant period of time and significant number of opportunities to deliver handgun. Accused' s evi- dence that he did not intend his offer to be taken seriously was rejected. Offers accused made to transfer gun to officer were to keep officer interested in him as his drug supplier. Court was satisfied beyond reasonable doubt that accused intended to make offer that would be taken as genuine offer by undercover officer, and that detail provided was sufficient to establish actus reus of offence. It was accused, not officer, who first raised is- sue of obtaining firearm for officer. Raising issue of how ac- cused would come in from out of town and not be running afoul of pre-existing traffickers s evi- was natural part of discussions, and was not designed to entrap accused. Officer did not go be- yond permissible bounds to fol- low up on accused' gun. Officer's increased contacts s offer to get were not at level that went be- yond natural part of necessary undercover narrative, and were not type of pressing and per- sistent contacts that supported finding of entrapment. Officer did not go beyond providing accused opportunity to commit offence. R. v. Lewis (Mar. 14, 2012, Ont. C.J., Bellefontaine J., File No. 2811-998-11-13175-02) 102 W.C.B. (2d) 272 (20 pp.). Evidence Accused was charged with sexual assault, touching person under fourteen for sexual pur- pose, two counts of invitation to sexual touching and unlaw- ful confinement. Complainant was eight years old in 2009 and testified that when she went to garbage chute in her apart- ment building, Accused was incarcerated at time alleged assault occurred IDENTITY OF ACCUSED fined by man who asked to see her underwear, attempted to liſt her dress and to pull her dress down, asked her to touch his penis and then masturbated in front of her. Accused had tat- toos which were not identified by complainant and was also incarcerated at time alleged as- sault occurred. Accused was identified by photo lineup where complainant testified accused looked sort of like at- tacker. Accused was only per- son in photo lineup with shaved head with complainant placing her hand over other photos to see what they looked like with shaved head. Accused found not guilty. Complainant made every effort to identify accused honestly however photo lineup was flawed. Accused also had tattoos visible that most likely would have been identified and accused was also not in area at time of assault. R. v. Osborne (July 23, 2012, Ont. S.C.J., Forestell J., File No. 12-1000107-0000) 102 W.C.B. (2d) 262 (12 pp.). she was con- Fraud Accused was charged with fraud over $5,000 aſter he col- lected commissions and em- ployed persons as indepen- dent contractors to collect at least 20% commissions with- out disclosing that informa- tion to potential donors. Per- sons hired by accused testified that accused instructed them to advise potential contribu- tors that they were volunteers and that all of collected money went to promoted child. Ac- cused was arrested aſter police were informed by parents of Material non-disclosure long recognized under category of "other fraudulent means" GENERAL CASELAW poster child that accused was using that picture without their permission. One testified that when he told truth about com- missions he did not receive any more donations. Accused ar- gued Canada Revenue Agency (CRA) allowed for revenue/ expenditure ratio of up to 35%. Accused found guilty. Court was satisfied that accused had instructed his canvassers to tell potential contributors to keep secret commission arrange- ment between himself and these fundraisers and that when inquiries were made about all of them save one lied about true arrangement. Court was further satisfied that this misin- formation was material in sense that if it had been properly dis- closed to its full extent, any fur- ther contributions would have ceased as was case for one can- vasser once he advised public of fact he was being paid for his efforts. Material non-disclosure has been long recognized under category of "other fraudulent means" and CRA allowance was irrelevant as non-disclosure was key element. R. v. Gour (June 28, 2012, Ont. S.C.J., McIsaac J.) 102 W.C.B. (2d) 225 (17 pp.). it ONTARIO CIVIL CASES Agency Action by family-owned com- pany for damages from agent and broker and return of com- mission taken in sale of real property. Brokerage admitted vicarious liability for actions of agent. Agent was directly in- volved as dual agent in negotia- tions for lease of property and took $6,750 pursuant to agree- ment. Lease agreement con- tained option to purchase for $900,000 and with guarantee of three years' rent. One year and one-half later, agent told plain- tiff he had offer to purchase from current tenant. Nego- tiations ensued but family was concerned about $933,250 pur- chase price, which they believed was low, and $700,000 vendor take back mortgage. Agent took father of plaintiff family to see accountant the following day and he signed agreement for purchase and sale. Agent knew father had not spoken to law- yer. Rest of plaintiff family was not happy with terms of agree- ment and plaintiff refused to complete. Negotiations led to increase in purchase price by $30,000 and sale completed. Agent took 5% commission and tax, amounting to $49,462. Ac- tion allowed in part. Agreement of purchase and sale was dif- ferent than lease agreement, so agent was obligated to explain his role as dual agent but failed to do so. Agent held himself out as an expert and plaintiff trust- In dual agency, agent had duty to strongly encourage legal advice REAL ESTATE AGENTS AND BROKERS www.lawtimesnews.com ed him, so this was a fiduciary relationship. Option to pur- chase was not an agreed-upon price. Agent breached duty in not even recommending that plaintiff make counteroffer. Agent failed to provide accoun- tant with option to purchase so he could compare it to offer. Had he done so, he would have advised father that option to purchase was better than offer on table. In dual agency, agent had duty to strongly encourage legal advice, which agent did not do, even though he knew fa- ther had little understanding of vendor take back mortgage and rest of family was opposed to it. Agreement of purchase and sale did not include any entitlement to commission and there was no evidence of oral agreement. Given these facts and breach of agent' entitlement to commission for sale. Had option to purchase been exercised at time of sale, price would have been $900,000 plus base rent for remainder of lease, which totalled $971,250. Actual sale price was $963,250. While this suggested an $8,000 loss, reality was that option to purchase was never exercised and there was no way of know- ing if it would have been. There was no way to quantify actual damages, if any. Plaintiff would be entitled to compensation for fees paid to real estate lawyer to negotiate $30,000 increase, but did not provide any breakdown of these fees. Plaintiff entitled to $49,462 repayment of commis- sion taken, plus interest. 1005139 Ontario Ltd. v. Abra- ham (May 31, 2012, Ont. S.C.J., Minnema J., File No. 08-CV- 42927) 217 A.C.W.S. (3d) 519 (11 pp.). s duties, there was no Arbitration Ad hoc motion by defendant to stay action for lack of juris- diction. Plaintiff had moved for summary judgment with respect to payments allegedly due pursuant to three promis- sory notes. Parties entered share purchase agreement for defen- dant' Dispute resolved by accountants so nothing to submit to arbitration STAY OF PROCEEDINGS owned by plaintiff. Defendant purchased all shares for $3 mil- lion on closing, plus $250,000 promissory note payable in three instalments. Defendant failed to pay first installment as required and plaintiff com- menced action. Defendant failed to pay next two install- ments and plaintiff brought within motion. Defendant argued court lacked jurisdic- tion because dispute remained alive about purchase price ad- justments so had to go to ar- bitration according to share purchase agreement. Motion dismissed. Dispute had been re- solved by external accountants as provided by share purchase agreement so there was nothing to submit to arbitration. Plain- tiff was seeking judgment only s purchase of radio station OctOber 29, 2012 • Law times for promissory notes. 1047358 Ontario Inc. v. Hali- burton Broadcasting Group Inc. (May 28, 2012, Ont. S.C.J., O'Neill J., File No. CV-09-83) 217 A.C.W.S. (3d) 594 (8 pp.). Husband was married to wife for 60 years and had five children. Husband died. Two children were applicants and three chil- dren were respondents. Appli- cants and wife were appointed co-guardians for property and personal care of husband. Re- lationship between co-guard- ians deteriorated. Pursuant to consent order personal friend was appointed sole guardian for property and friend, appli- cants and wife were appointed co-guardians for personal care with provision Friend had to be in majority on decisions. Appli- cants sought costs of proceed- ings for specified period. Friend sought legal costs for work done by friend as result of contentious proceedings and costs to retain and instruct counsel. Applicants were to pay friend fess to be as- sessed, $40,000 for services pro- vided, and $5,876 for disburse- ments. Applicants were to pay costs of wife in amount of $6,000 plus HST. Motion for legal costs associated with applicants' guardianship was dismissed. Applicants were not Applicants' conduct unnecessarily confrontational, controlling Civil Procedure COSTS to costs. Award of costs would reward applicants for bring- ing motions that were in large part unsuccessful, were without merit, and would not have ben- efited incapable person. Court had jurisdiction to award costs even aſter time applicants were relieved of duties as guardians of person. Contentious issues were at all times between appli- cants on one side and friend and wife on other side. Work was largely related to contentious proceedings and did not relate to work friend would otherwise have performed as guardian of property. Applicants were to in- demnify respondents for costs incurred on partial indemnity basis. Applicants did not act rea- sonably. Applicants' conduct was unnecessarily confrontational, controlling and largely unsuc- cessful. Accounts of guardian of property were approved. Olivieri v. Colangelo (June 20, 2012, Ont. S.C.J., Turnbull J., File No. 09-10688) 217 A.C.W.S. (3d) 536 (22 pp.). entitled This was appeal from applica- tion judge's decision awarding costs against lawyer person- ally. Lawyer represented two individuals in unsuccessful applications to quash by-law passed by township. Applica- tion judge awarded costs of $180,000 against two individu- als. Application judge ordered 40% of costs to be payable by conduct did not merit costs against him personally Even if lawyer negligent,

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