The Lawyers Weekly - July 1, 2011

THE LAWYERS WEEKLY
July 1, 2011 | 17

DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca

ADMINISTRATIVE LAW

BOARDS AND TRIBUNALS – County Subdivision and Development Appeal Board had jurisdiction to impose conditions requiring appellant to obtain permit prior to erecting billboards.

Appeal from a decision by respondent board. The board overturned a development officer’s decision denying appellant a permit to erect three billboards close to the highway. The billboards had already been erected at the time of the board proceedings and had been the subject of a stop order. The enforcement of the order was held in abeyance pending the board’s decision. The board permitted the billboards to be erected only upon appellant obtaining from Alberta Transportation a permit for the installation. The board stated that public safety was not a factor and that the billboards would not unduly interfere with the use and enjoyment of surrounding properties. Alberta Transportation provided a letter to the effect that it did not, as a matter of policy, issue permits for signs such as appellant’s billboards. Appellant took the position that the board erred in law or exceeded its jurisdiction by imposing the condition.

HELD: Appeal dismissed. The County Land Use Bylaw expressly granted the board jurisdiction to impose the condition requiring appellant to obtain a permit prior to erecting the billboards. The bylaw itself had the goal of regulating and controlling the use and development of land and buildings in the county. It provided a specific definition of signs as structures falling within the purview of the bylaw. The board’s finding that the billboards presented no risk to safety or property enjoyment did not preclude it from imposing the condition to further some other appropriate goal of the bylaw. The fact that the board likely knew that appellant would have had little chance of obtaining the required permit from Alberta Transportation did not render the board’s decision improper.

Cronauer v. Grande Prairie ( Subdivision and Development Appeal Board), [2011] A.J. No. 595, Alta. C.A., per Côté and Bielby JJ.A. and Graesser J. (ad hoc), May 30/11. Digest No. 3109- 001 (Approx. 9 pp.)

BOARDS AND TRIBUNALS – Respondent commission considered all relevant issues in applying community plan as basis to reject appellant’s development application.

Appeal from a decision of respondent
commission. The commission denied
appellant’s appeal from the dismissal of
his application to respondent city to
rezone a property he owned from single-
detached residential to low- and medium-
density residential. In the application,
appellant limited his rezoning request to a
portion of the property. Both the Planning
Department and the Planning Board rec-
ommended that the application be
approved. A public meeting was held, fol-
lowing which the city denied the rezoning
request. The commission dismissed the
appeal, finding the city’s decision reason-
able and in line with the city’s official plan.

BARRISTERS & SOLICITORS
FEES – Plaintiff lawyer’s action
against defendant based on promise to
pay her son’s account dismissed because
agreement to pay not reduced to writing.

Application by defendant M for summary judgment dismissing plaintiff’s action against her on the ground that plaintiff’s claim was barred by s. 4 of the Statute of Frauds (Ont.). Plaintiff was a criminal defence lawyer who brought the action for recovery of his fees against K, whom he defended with respect to nine criminal charges for which K was acquitted. M was K’s mother and had promised to pay plaintiff’s accounts if her son did not. There was presently a balance of $37,000 outstanding. Neither K nor M had made any payments to plaintiff. The action had been discontinued against K because of his bankruptcy.

HELD: Application granted. Section 4 of the Statute provided that no one shall charge any person upon a promise to answer for a debtor of another person, unless the agreement upon which the action is brought was in writing. Assuming that M made the promise in question and that plaintiff detrimentally relied on it with a benefit accruing to M, namely her son being represented and ultimately acquitted as a result of plaintiff’s efforts, the fact remained that the formality requirements of s. 4 of the Act had not been met. There was a valid rationale for the statutory provision that such promises be in writing. Plaintiff, who was a lawyer, should have known of the necessity of obtaining the promise in writing.

Steinberg v. King, [2011] O.J. No.
2358, Ont. S.C.J., Lederman J., May 24/11.
Digest No. 3109-003 (Approx. 4 pp.)
CHARTER OF RIGHTS
& FREEDOMS
SEARCH AND SEIZURE – Photo-
graphs obtained from applicant’s cell-
phone during warrantless and unlawful
search excluded from evidence.

Application pursuant to s. 8 of the Charter to exclude four photographs obtained when police searched applicant’s cellphone. At about 3 a.m. on Nov. 14, 2009, 911 calls were made reporting shots having been fired. At about that time, applicant was walking on the street when he was stopped by police. While he was detained, one of the officers searched his cellphone and located photographs including several of applicant holding a firearm. A firearm was found about a block away from where applicant was stopped and he was arrested for possession of the firearm on the basis that the firearm in the photograph and the firearm that was found were the same.

HELD: Application allowed. Applicant was initially arrested for breach of conditions. By the time the police officer advised applicant of his right to counsel, the officer knew that there were no conditions. After he was detained and before he was arrested, the officer searched his cellphone. Because he had seen the photographs on the cellphone, the officer held applicant on investigative detention in handcuffs related to the earlier shooting and read him his right to counsel. The search of the cellphone was warrantless. There was no lawful reason for and no legitimate interest in the search of the cellphone. The officer did not do a cursory search of the cellphone; he searched all icons to which he could gain access. There was no officer safety need that would justify flipping the cellphone open, let alone conducting an extensive search of its contents. The search of the cellphone violated applicant’s s. 8 Charter right to be secure against unreasonable search and seizure. The evidence seized from the cellphone was excluded.

R. v. Hull, [2011] O.J. No. 2392, Ont.
S.C.J., Kiteley J., May 24/11. Digest No.
3109-004 (Approx. 10 pp.)
CIVIL PROCEDURE
APPLICATIONS – Defendant was
refused leave to file affidavit of phys-
ician after cross-examinations in appli-
cation completed.

Motion by defendant F for leave to file
an affidavit after the conclusion of cross-
examinations. Plaintiffs were the daugh-
ters of AS and RS. AS died in November
2009 and plaintiffs were the attorneys for
property for RS. In December 2009 they
brought an application naming defend-
ants as respondents. A production order
was made as a result of which they learned
that their father had invested in a joint
venture related to three parcels of com-
mercial property. In April 2010 one of the
titleholders of the commercial property
brought a motion to approve the sale of
one of the parcels and distribute the pro-
ceeds to the joint venture participants.
The property was sold and the money was
being held in trust. Plaintiffs opposed the
distribution of the sale proceeds to defend-
ants on the basis that defendants used
their positions to personally profit by
causing AS to invest in the joint venture. F
sought leave to file an affidavit of Dr. S,
which contained his retrospective cap-
acity assessment of AS during the period
when he entered into the joint venture
agreement and on the causes of his
estrangement from plaintiffs. Plaintiffs
submitted the evidence of Dr. S was a dir-
ect response to their evidence on cross-
examination and was an attempt by F to
split his case.

DELAY – Four year delay by plain-
tiffs in advancing action was inexcus-
able and the dismissal of their action
for delay upheld.

Appeal from an order dismissing appellants’ motion to set aside the registrar’s dismissal of their personal negligence action for delay. The action was commenced in 2003 and dismissed for delay in 2007. The motion to set aside was not brought until 2010. Between the time of the commencement of the action and 2006 pleadings were exchanged, some discovery sessions were held, a defence medical was completed and various documents were produced. The order dismissing the action came to the attention of plaintiffs’ lawyer in early 2008. The lawyer took no steps to bring the motion forward. The matter was brought to the attention of the law society’s insurer. Another 10 months passed before the motion was brought.

HELD: Appeal dismissed. The delay between 2006 and 2010 was inexcusable. Virtually all of the delay was attributable to the failure of counsel for plaintiffs to move the action along and to take the appropriate steps to set aside the registrar’s order. Reinstating the action at this point would undermine the finality principle, while refusing to reinstate the action did not interfere with the need to ensure adequate remedies, since plaintiffs still had recourse through an action in solicitor’s negligence.

Machacek v. Ontario Cycling Assn., [2011] O.J. No. 2379, Ont. C.A., per MacPherson, Armstrong and Karakatsanis JJ.A., May 27/11. Digest No. 3109- 006 (Approx. 4 pp.)