Law Times

Law Times • November 26, 2012 er was primary caregiver since 2010. Father sought joint cus- tody. Mother brought motion for summary judgment. Mo- tion was allowed. There was no genuine issue for trial regarding custody or access. There was no genuine issue for trial regard- ing prohibition and restraining order. Mother was to have sole custody. Father offered no plan of care for children. There was no evidence that joint custody order was realistic. Mother was only parent capable of making decisions that would be in best interests of children, given fa- ther' issues. There was no evidence mother was interfering with father' s untreated mental health access order was for closely su- pervised and structured access. Father was not ordered to un- dertake psychotherapy as con- dition of exercising supervised access. Mother did not require father' s access. Only possible children. Father acted in vexa- tious manner towards mother. Mother' children's safety was reason- s fear for mother's and able. Continuation of restrain- ing order was only mechanism whereby mother and children could have any protection against father. Father did not use best efforts to earn what father was capable of earning. There was no genuine issue for trial regarding child support. Father was to pay child support of $549 per month based on imputed income of $22,000. McCash v. McCash (July 25, 2012, Ont. C.J., Zisman J., File No. 71/11) 218 A.C.W.S. (3d) 601 (17 pp.). Insurance This was appeal from applica- tion judge' LIABILITY INSURANCE Generally worded exclusion clause did not overrule specific agreement ance policy provided coverage. Respondent was major partici- pant in asset backed commer- cial paper market in Canada. Market experienced severe dis- ruption and respondent' s decision that insur- any claim based on wrongful acts that occurred prior to Oct. 17, 2007. Appellant then issued claims-made policy for period from Oct. 17, 2008, to April 17, 2010. Exclusion for prior acts coverage was removed. Re- spondent and senior officers in- curred legal fees of $12 million in responding to allegations by Ontario Securities Com- mission. Respondent claimed against appellant for reim- bursement of defence costs. Application judge found that claims-made policy provided coverage for prior acts to extent of first $5 million of $10 million policy limit and that exclusion clauses appellant relied on did not apply. Appeal Application judge's conclusion dismissed. s consent to travel with that appellant waived carve out provisions as of Oct. 17, 2008, was supported by evidence. As of Oct. 17, 2008, reasonable person viewing circumstances objectively, would have under- stood that parties had agreed that appellant would provide full prior acts coverage to ex- tent of $5 million for matters included in notice respondent provided to company. Parties did not intend to exclude mat- ters referred to in respondent' notice. Generally worded ex- clusion clause did not overrule specific agreement. Coventree Inc. v. Lloyds Syndi- cate s cate) (May 24, 2012, Ont. C.A., O'Connor A.C.J.O., Armstrong and Watt JJ.A., File No. C54323) Decision at 206 A.C.W.S. (3d) 809 was affirmed. 218 A.C.W.S. (3d) 674 (18 pp.). 1221 (Millenium Syndi- Limitations ness was devastated. Its share price significantly dropped and it wound up business. Prior to collapse of market, respon- dent and directors and senior officers were insured under policy issued by company. Af- ter collapse of market, company informed respondent that it would not renew directors' and senior officers' policy. Policy included coverage for claims made aſter expiration of policy if s busi- tice of potential claims during policy period. One day before policy was to expire on Oct. 17, 2007, respondent gave no- tice to company of all potential claims it could envision related to market collapse. Respondent obtained new directors and of- ficers insurance policy from appellant for period Oct. 17, 2007, to Oct. 17, 2008. Policy expressly excluded coverage for respondent had given no- Applicants and respondents were title owners of abutting parcels of land that fronted onto river. Applicants were bound by declaration of trust applicants agreed to hold land for benefit of residence residing on interior lots or whose water front was not suitable for launching small watercraſt. Survey commis- sioned by respondent revealed land on which dock was built and area used by Beach Group for storage of boats and access to water formed part of respon- dents' parcel. Applicants sought declaration that applicants were owners of land based on law of adverse possession. Respon- dents sought order dismissing application. Application was dismissed. Facts of case pre- sented case of mutual mistake as to where boundary between two abutting lands lay. Mistake was made in good faith and was result of physical terrain adjoining two lands. Posses- sion of disputed land by Breach Group and their activities was open, notorious, and peaceful. Possession of disputed lands by Beach Group was actual and continuous for statutory period. There was no evidence that members of Beach Group Case of mutual mistake as to where boundary lay REAL PROPERTY CASELAW excluded anyone from being on or using disputed land. As- suming case was one of mu- tual mistake inconsistent use was not applicable. Because of mutual mistake it was open to infer from circumstances that claimants intended to exclude owners of disputed land from possession of disputed land. Evidence presented was against making such inference. Appli- cants could not meet test for discontinuance of possession for statutory period by owner or all others entitled to posses- sion. Owners and titled lessees of disputed property continued to possess and use property as did other members of Beach Group. Chen v. Stafford (July 4, 2012, Ont. S.C.J., de Sousa J., File No. CV-11-522-00) 218 A.C.W.S. (3d) 683 (27 pp.). ONTARIO CRIMINAL CASES Appeal Appeal by accused from his conviction for first degree mur- der. Crown alleged that accused and partner executed deceased because he stole their drugs. It had strong circumstantial case against accused. Crown also had evidence of man. Informant claimed that accused confessed to him when they met in jail. Informant was jailhouse infor- mant with established history of dishonesty and clear motive to lie. Trial judge provided lengthy and forceful caution about his evidence. Accused claimed that judge should have excluded evidence that police seized two loaded handguns from accused, neither of which was connected to this murder. If that evidence was admissible jury should have been told that it could not con- firm informant' Evidence about guns had significant potential probative value GROUNDS peal dismissed. Evidence about guns was admissible. Accused' statement about guns could not be viewed in isolation. It was one of several statements that accused allegedly made to in- formant about his knowledge of weapons used in murder. Those statements could sup- port inference that accused knew which weapons were not used in murder because he was involved in it. Evidence about guns had significant potential probative value. Judge was alive to potential prejudice of this evidence and he chose to admit it and to give strong limiting in- struction. He acted within his discretion when he determined that potential prejudice could be adequately addressed by ap- propriate limiting instruction. Judge, therefore, s evidence. Ap- s in admitting evidence. Judge did not misdirect jury on po- tential confirmatory value of evidence about guns. This evi- did not err www.lawtimesnews.com dence, which was independent of informant' not implicate accused but it was capable of confirming credibil- ity of informant' s testimony, did relevant matter and it increased jury' s testimony on s confidence in reliability of informant's evidence. Judge did not err in including evidence within category of potentially confirmatory evidence. R. v. McFarlane (May 11, 2012, Ont. C.A., Doherty, Simmons and LaForme JJ.A., File No. C49922) 102 W.C.B. (2d) 542 (8 pp.). Judge thoughtfully considered accused' SENTENCE APPEAL s dangerousness and Appeal by accused from sen- tence imposed aſter he was con- victed of breaking and enter- ing, aggravated sexual assault, attempted murder, unlawful confinement and threatening death. Accused was sentenced to life imprisonment on first three counts and five years' im- prisonment on last two counts, to be served concurrently. When accused was 26 he broke into home of 76-year-old com- plainant and sexually assaulted her. He also stabbed her, slashed her face and brutally beat her. Crown originally applied for dangerous offender designa- tion but withdrew application because need to protect public participate in psychiatric as- sessment. Appeal dismissed. Accused was entitled to decide not to participate in assessment. However, this did not preclude judge from giving any weight to his future dangerousness. Judge was obliged to consider whether maximum sentence of life imprisonment was jus- tified. Accused was convicted of aggravated sexual assault and attempted murder, each of which carried maximum sentence of life imprisonment. Circumstances of crime were especially egregious and aggra- vating. Judge thoughtfully con- sidered all relevant sentencing principles, including accused' accused refused to dangerousness and need to pro- tect public. Life sentence was fit sentence. R. v. Anderson (June 5, 2012, Ont. C.A., Weiler, Simmons and Cronk JJ.A., File No. C53603) Decision at 97 W.C.B. (2d) 410 was affirmed. 102 W.C.B. (2d) 551 (10 pp.). s Accused appealed his convic- tion of care and control while driving over 80 and impaired. Trial judge found that officer found minimal Charter rights breach despite finding officer fabricated his explanation for trespassing on property and that he was engaged in fishing expedition. Judge found no breach of right to counsel on grounds officer read accused clear up uncertainty as to whether he understood rights Accused's shaking of head did not Charter Of Rights APPLICATION PAGE 19 his rights and breath demand, and that while accused was not responsive, he shook his head in negative when asked if he wanted to speak to counsel. Trial judge reduced accused's fine by $400 citing s. 24(2). Ap- peal allowed, accused acquit- ted. Trial judge erred in find- ing no violation of accused's right to counsel as informa- tional component was lacking given accused was essentially non-responsive. Appeal en- tered as fabricating evidence should have been classified as more than minimal breach. Trial judge erred in law as there was no evidence capable of supporting conclusion that accused "appeared to under- stand". Accused's shaking of his head in negative did not clear up uncertainty as to whether he understood his right to counsel. Trial judge further erred in applying remedy as reducing fine would only have been option under s. 24(1) which was not applicable. R. v. Willoughby (May 28, 2012, Ont. S.C.J., Conlan J., File No. CR 808/11) 102 W.C.B. (2d) 561 (15 pp.). Accused charged with at- tempting to obstruct justice in judicial proceeding by threat- ening to use his position as jury member to cause hung jury irrespective of evidence at trial. After receiving summons for jury selection, accused de- manded to be excused and emailed Attorney General to say if he were required to serve on jury he would deliberately cast his vote so as to prevent unanimous verdict and would counsel other jury members to do same. Accused also stated his intentions in document en- titled "How to Get Even With the Ontario Government and Its Stalinist Pig Court", which he sent to newspaper reporter. He said he would hand out cir- cular at Superior Court when he reported for jury duty. Pa- per did not publish letter or circular. Accused also sent letter to sheriff 's office which added he was racist and gener- ally would be unfit juror. On day jury panel was convened accused appeared before jus- tice, expressed his intentions to court and was excused from jury duty. Accused found not guilty. Accused charged with attempting to obstruct justice, not with actually obstruct- ing it. There was no evidence selection of any jury was im- peded by what he said and did. He did not bring his circular to court and he did not have any contact with potential jury members. He did not attempt to obstruct justice he threat- ened to do so. R. v. Triffon (July 5, 2012, Ont. C.J., Bovard J., File No. 4811 998 12 10001605 00) 102 W.C.B. (2d) 591 (9 pp.). OBSTRUCTING JUSTICE Accused did not attempt to obstruct justice but threatened to do so LT

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