THE LAWYERS WEEKLY
July 1, 2011 | 17
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: email@example.com
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),
 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
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,  O.J. No.
2358, Ont. S.C.J., Lederman J., May 24/11.
Digest No. 3109-003 (Approx. 4 pp.)
CHARTER OF RIGHTS
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
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
R. v. Hull,  O.J. No. 2392, Ont.
S.C.J., Kiteley J., May 24/11. Digest No.
3109-004 (Approx. 10 pp.)
APPLICATIONS – Defendant was
refused leave to file affidavit of phys-
ician after cross-examinations in appli-
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.,
 O.J. No. 2379, Ont. C.A., per
MacPherson, Armstrong and Karakatsanis JJ.A., May 27/11. Digest No. 3109-
006 (Approx. 4 pp.)
DISCOVERY – Court ordered dis-
closure of documents in possession of
two defendants that would identify two
John Doe defendants.