ring), Oct. 19/10. Digest No. 3027-005
(Approx. 19 pp.)
TRIAL WITHIN A REASONABLE
TIME – Trial judge erred in failing to find
that the delay in bringing accused to trial
violated his subs. 11(b) Charter rights.
Appeal from convictions on charges of
dangerous operation of a motor vehicle,
possession of stolen property over $5,000
and resisting arrest. The trial judge had
refused to stay the proceedings on the
basis of unreasonable delay. Accused was
charged in 2004. His trial commenced in
2007. There was significant delay in
obtaining disclosure from the Crown
about alleged police misconduct. The first
trial in 2006 ended in a mistrial. The next
available trial date in November 2006
became unavailable when the Superior
Court Educational Conference was
rescheduled for that week. The trial was
adjourned to February 2007. The overall
delay was about 30 months. The delay in
the Ontario Court of Justice was just over
four months.
HELD: Appeal allowed. A stay of proceedings was entered. The mistrial was
declared some 13 months after accused
was committed for trial. The record disclosed no effort by the Crown to seek an
early date for the retrial. It seemed the
Crown attached no special priority to the
case, but had scheduled it in the normal
course. More attention to an accused person’s subs. 11(b) Charter rights was
required. The entire delay respecting disclosure should have been allocated to the
Crown. While it was within the trial
judge’s discretion to find that there was
no evidence that the accused had suffered actual prejudice, this was not a case
that should have turned on that finding.
The judge failed to sufficiently recognize
that delay, in and of itself, could be
expected to have a detrimental effect on a
fair trial.
R. v. Brace, [2010] O.J. No. 4474,
Ont. C.A., per Juriansz J.A. (O’Connor
A.C.J.O. and Simmons J. A. concurring),
Oct. 21/10. Digest No. 3027-006
(Approx. 5 pp.)
CLASS ACTIONS
CERTIFICATION – Defendants
could not raise a limitations defence to
plaintiffs’ proposed class proceeding
because she had been granted leave to
amend her pleadings and her initial
action was brought in time.
Motion for certification of a class action
and to strike the limitations defence. The
proposed class was all Ontario residents
who had purchased certain solarium models since Nov. 12, 2004. The proposed
common issues were whether the solarium
presented a risk, whether defendant was
negligent in manufacture and distribution
and whether plaintiffs were entitled to
damages and punitive damages. Plaintiff
became aware of defects when a building
inspector ordered her to remove the solarium as it did not meet the Building Code.
The certification motion was dismissed
because the proposed class was overly
broad as some members had been ordered
to remove solariums but some had been
granted building permits by their city.
Plaintiff’s appeal was dismissed but she
was granted leave to amend her pleadings.
HELD: Motion allowed. Since plaintiff
had been granted leave to amend her
pleadings, defendant was not entitled to
plead a limitations defence to the amend-
ments. Plaintiff now based her claim on
allegations that the solarium was designed
so that it would collapse under the weight
of snow, presenting a risk. All the purchas-
ers had a common interest in the deter-
mination of that issue. The class and com-
mon issues were appropriate and, with
over 300 purchasers, a class proceeding
was the preferred method.
CRIMINAL LAW
FORFEITURE OF PROPERTY –
Court declined to order forfeiture of
accused’s interest in his home.
Application for partial forfeiture of
accused’s residence. Accused was a police
constable who stole what he thought were
drugs from a crime scene. He then concealed the packages in the garage of his
family’s residence. It turned out that the
narcotics were not real. Accused lived in
the residence with his wife, their two
daughters and his wife’s elderly parents.
The Crown sought forfeiture of 50 per cent
of the property, which was accused’s legal
interest in the property, as offence-related
property. The defence took the position
that forfeiture of accused’s interest in the
property would be disproportionate in the
circumstances as there was no evidence of
arrangements for commercial distribution, the substance was not a real narcotic
and only the garage of the residence was
used. Furthermore, the defence took the
position that the forced sale of the home
would be devastating to accused’s family.
HELD: Application dismissed. While
accused was convicted of a serious crime,
there was no evidence that the property
had been used for commercial trafficking
of illicit narcotics. Also, no financial gain
was attained or even possible. Furthermore, the property remained the home of
five innocent individuals and the effective
forced sale of the home would significantly
disrupt the family and cause the children
to suffer emotional harm. The forfeiture of
accused’s interest in the property would be
disproportionate in the circumstances.
R. v. Cook, [2010] O.J. No. 4413,
Ont. S.C.J., Hill J., Oct. 15/10. Digest
No. 3027-008 (Approx. 12 pp.)
DAMAGES
(PERSONAL INJURY)
PRE-EXISTING CONDITION –
$85,000 general damages – Plaintiff
was entitled to damages arising out of a
car accident taking into account injuries
she sustained in a previous accident.
Action for damages for injuries sus-
tained in a motor vehicle accident. Plain-
tiff was a passenger in the front seat of her
husband’s vehicle when it was struck from
behind by defendant. The day after the
accident, plaintiff saw her doctor and
complained of pain in the head and neck
with an increase of headaches. In addi-
tion, she had numbness on her left side.
She was diagnosed as having sustained an
acute cervical upper back strain. Plaintiff
underwent physiotherapy, was prescribed
a variety of medications for her pain and
received trigger point injections. She had
gained a considerable amount of weight
and required a cane because of the
development of left knee pain. Plaintiff
had been involved in a prior motor vehicle
accident in 1989, in which she suffered
soft tissue injuries. Following that acci-
dent, she was unable to work for some
time and was later diagnosed as suffering
from fibromyalgia. After the first accident,
she was urged by her doctors to reduce her
hours of work as a real estate agent or to
stop working completely because of its
negative effect on her pain symptoms. She
declined to do so, but for some time fol-
lowing the second accident she stopped
working except for a few hours per day in
a clerical role.
EMPLOYMENT
& DISMISSAL LAW
CONSTRUCTIVE DISMISSAL –
Plaintiff was constructively dismissed
when defendant changed the terms of
his employment.
Action for damages for wrongful dismissal. Plaintiff was 57 years of age and
had worked his entire adult life in the
radio broadcasting industry. He was
employed by defendant, a satellite radio
company, from September 2005 to August
2007. Defendant’s major shareholder was
B. B’s right hand man was L. Plaintiff was
recruited to oversee new Canadian stations required as a condition of defendant’s licence. By 2007 defendant was in
financial difficulty. Plaintiff was told that
he would have to be moved to a part time
position at a reduced salary. B agreed to
plaintiff’s request for $150,000 and a
three year guarantee and also said he
could have $25,000 worth of restricted
stock and would be allowed to do other
consulting work. In response to an email
from plaintiff clarifying the agreement, L
advised that it would be for two years
employment and withdrew the promise of
stock options. Plaintiff determined that he
had been constructively dismissed.
HELD: Action allowed. Plaintiff was
awarded $362,200. Plaintiff and B had
reached an agreement regarding changes to
plaintiff’s employment. Plaintiff’s subse-
quent email was seeking to clarify the terms
proposed to plaintiff. The reply from L resiled
from the agreement. Plaintiff was entitled to
consider himself constructively dismissed.
He was entitled to one year of salary at the
contract rate, plus his fiscal 2007 bonus and
the bonus he would have earned in 2008.
FRANCHISES
BREACH OF AGREEMENT – Appel-
late court dismissed an appeal from an
award of damages for breach of a fran-
chise agreement.
Appeal from a finding that appellant
franchisor breached a franchise agreement
with respondents. The individual respondent had entered into a franchise agreement with appellant to operate a franchise
store in a mall in Ottawa. Appellant was a
lessee under a head lease for a location on
the third floor of the mall. Respondent was
the sublessee under the head lease. The
parties included a schedule to the franchise agreement that provided that in the
event appellant entered a new head lease
with the mall, the franchise agreement
would be renewed with a new sublease.
Prior to the expiry of the head lease, appellant entered into a new lease for a location
on the second floor of the mall and signed
a new agreement with a new franchisee for
that location. Respondents were then
advised that their franchise agreement
would end on the day the lease expired.
The trial judge found that appellant
breached the franchise agreement and
duty of good faith contrary to the Arthur
Wishart Act (Franchise Disclosure)
(Ont.). The judge awarded damages in the
amount of $230,358 for future loss of
income and $50,000 for the breach of the
duty of good faith and mental distress.
HELD: Appeal dismissed. The trial
judge engaged in an analysis of the contractual rights between the parties, considered all of the relevant documents, and
there was no error in the approach she
adopted. On the facts found by the judge,
there was no doubt that the conduct at
issue fell squarely within the performance
or enforcement of the franchise agreement
and that appellant breached the duty of
good faith it owed to the franchisee under
the Act. There was no basis to interfere
with the judge’s assessment of damages.
Salah v. Timothy’s Coffees of the
World Inc., [2010] O.J. No. 4336, Ont.
C.A., per Winkler C.J.O. (Rosenberg
J.A. and Pitt J. (ad hoc) concurring),
Oct. 14/10. Digest No. 3027-011
(Approx. 8 pp.)
INJUNCTIONS
BALANCE OF CONVENIENCE –
Appellate court refused to grant appel-
lants an interim injunction precluding a
party to a share purchase agreement
from exercising his rights to reacquire
or take back his shares.
Appeal from the dismissal of appellant’s
application for an interim injunction precluding a party to a share purchase agreement, defendant M, from exercising his
rights under a security agreement, given to
insure payment, to reacquire or take back
