ing disqualified and search of respondent’s person did not violate the Charter
but there had been a breach of ss. 8, 9 and
10 with respect to the vehicle search. The
evidence was excluded. As a result,
respondent was acquitted of the remain-ing charges. The Court of Appeal ordered
a new trial on those charges.
HELD: Motion dismissed. The determinations made by the trial judge in his
Charter rulings were unrelated to the
guilt or innocence of respondent. Whether
or not his Charter rights were breached
was an entirely autonomous question
unrelated to the issue of conviction or
acquittal. The fact that the exclusion of
evidence under subs. 24( 2) would affect
the outcome of the trial proper could not
be considered in this context. The Charter rulings related to the search of
respondent’s person and vehicle were not
factual findings related to his innocence
and therefore finality was not relevant
nor the result. Issue estoppel did not
apply in this case.
R. v. Nguyen, [2011] O.J. No. 3606,
Ont. S.C.J., Gilmore J., Aug. 8/11.
Digest No. 3117-006 (Approx. 6 pp.)
CIVIL PROCEDURE
DISCONTINUANCE – Court
granted plaintiff’s application to dis-
continue action against one of the
defendants but ordered her to pay
defendant’s costs to the date she served
her notice of discontinuance.
Application by plaintiff for leave to discontinue her claim against defendant G
on a without costs basis. The action arose
out of a motor vehicle collision in 2007.
Plaintiff was a passenger in a vehicle
driven by defendant M when it collided
with a vehicle driven by G. Plaintiff suffered significant injuries and had not
returned to work. Her economic loss
report calculated her pecuniary losses at
$1.7 million, exclusive of her claim for
pain and suffering. Plaintiff did not
remember the collision. The police report
listed her as owner of the vehicle but no
driver was noted. The statement of claim
was issued against both M and G.
HELD: Application granted. A Technical Collision Investigative Report prepared by the police concluded that M was
at fault for the collision and that he was
legally impaired by alcohol at the time. It
was not until plaintiff read that report and
heard G’s oral evidence that plaintiff
determined that there was no way that the
G vehicle could have avoided the collision
and that M was solely responsible. Neither abuse nor substantial prejudice to
defendants was raised. Plaintiff was
granted leave to discontinue her claim
against defendant G. The action against G
was dismissed. G should not bear the
costs of his defence so that plaintiff could
protect her rights. G was entitled to costs
from plaintiff up to the time she served
her notice of discontinuance. From that
point it was the actions of M that kept G
in the action. M was to pay G’s costs from
that point forward.
Maindonald v. McKeown, [2011] O.J.
No. 3589, Ont. S.C.J., Quinlan J., Aug.
5/11. Digest No. 3117-007 (Approx. 12 pp.)
DISCOVERY – Plaintiff entitled to
proceed with examinations for discovery
of defendants despite pending criminal
proceedings involving defendants.
Motion by plaintiff to compel defendants to submit to examination for discovery. Plaintiff suffered a severe brain
injury in 2010 when he was thrown out
of a bar operated by defendants. At the
time he was a foreign national resident in
Canada on a student visa. He had been in
Canada in hospital since the injury and
incurred substantial medical bills. The
insured defendant declined to make any
advance payment toward the medical
bills. Defendants alleged that if they were
examined first, plaintiff, who may not
remember details of the incident, could
use what they said to create recollections
of the event and Crown in the criminal
case might have access to the transcript
of examinations.
HELD: Motion granted. It was speculative to say that the risk that plaintiff
would tailor his evidence to the examinations of defendants was any higher than
the risk that any witness who heard
another’s version of events would tailor
his evidence. There was no reason to
depart from the normal order of examinations. Plaintiff had acted expeditiously in
serving his affidavit of documents and
notice of examination because he needed
to know without delay whether he was
entitled to damages. Defendants were
protected by s. 13 of the Charter from the
use of the examinations in any criminal
proceeding to prove their guilt or to
impeach their later testimony.
Ezeh v. 2317706 Ontario Inc. (c.o.b.
Club Seventy-Seven), [2011] O.J. No.
3568, Ont. S.C.J., Ramsay J., Aug. 4/11.
Digest No. 3117-008 (Approx. 4 pp.)
PARTIES – Court granted injunction
requiring defendants to remove state-
ments about plaintiff from their blog
and ordered that defendants identify
themselves.
Motion by plaintiff for an order validating service by email for an injunction
requiring the defendant John Doe #1
(JD1) to remove defamatory websites
from the Internet and for an order requiring JD1 to provide his name and address
and those of his co-defendants to plaintiff.
Plaintiff was a lawyer and the director of
legal affairs at a media company in
Toronto. In 2010 defamatory comments
about him were made on a blog. An email
which contained a hyperlink to the blog
was sent from the email address of JD1 to
plaintiff’s employer. After unsuccessfully
attempting to have the blog’s host remove
the blog, plaintiff commenced an action
and brought a motion against the host,
who in turn contacted JD1 by email. In an
email response to the host, JD1 indicated
they were in the process of retaining
counsel. Thereafter, the objectionable
postings were removed from the blog, but
the blog was moved to a new location and
similar defamatory statements were
made. Plaintiff made further unsuccessful
attempts to identify defendants.
HELD: Motion allowed. JD1 had
notice of the motion and it was reasonable
to conclude that JD1 was located in
Ontario and wished to avoid identification
and service. There was a serious issue to
be tried and plaintiff would suffer irrepar-
able harm as the statements were clearly
defamatory and threatened plaintiff’s
reputation as a lawyer. Furthermore, the
balance of convenience favoured granting
the injunction as the damaging state-
ments would be easy for JD1 to remove.
As defendants did not have a reasonable
expectation of anonymity in the face of
defamation, plaintiff established a prima
facie case of defamation and as it had
been unsuccessful in identifying defend-
ants, the public interest favoured disclo-
sure of defendants’ identities.
PARTIES – Applicant added as party
to the appeal of a decision regarding
province’s duty to consult with an
Indian band with respect to the incor-
poration of a municipality.
Application for an order adding S Corp.
as a party to the appeal of the Lieutenant
Governor. The Lieutenant Governor
appealed from a declaration that the province failed to fulfill its constitutional duty
to respondent Indian band with respect to
the incorporation of the Sun Peaks Resort
Municipality. The judge ordered the province to engage in a deep consultation process with regard to the incorporation of
the municipality in a manner reflecting
the strength of the band’s land claims and
the serious impact on the band’s interest. S
Corp. was a mountain resort that included
developed areas at the base of the resort
lands and recreational ski areas at higher
altitudes. S Corp. had applied once before
to be added as a party to the appeal but
had been refused because the judge’s order
had yet to be finalized or entered. A hearing to settle the order was scheduled for
September 2011. S Corp. took the position
that it was affected by the judgment under
appeal as a party to the master development agreement. It did not previously join
in the litigation because the band’s original judicial review application simply
sought to quash the order in council incorporating the municipality.
HELD: Application allowed. In a poly-centric consultation case such as this, the
usual requirements to add a party needed
to be relaxed. Here it was the Crown that
bore the responsibility to consult, but S
Corp. was the private entity whose rights
had the potential to be severely impacted
if the consultation duty was not adequately
fulfilled or by the manner in which consultation was conducted. S Corp. satisfied
the court that its rights might be affected,
possibly significantly. Any prejudice to
the band worked by the addition of S
Corp. could be remedied in costs. S Corp.’s
proposed argument that the judgment
embraced an overly broad view of the
Crown’s duty to consult was a live issue at
trial and would continue to be a live issue
on appeal.
Adams Lake Indian Band v. British
Columbia (Lieutenant Governor in
Council), [2011] B.C.J. No. 1519,
B.C.C.A., Garson J.A., Aug. 10/11.
Digest No. 3117-010 (Approx. 8 pp.)
PRODUCTION OF DOCUMENTS –
Court refused to order the production
of copies of items seized by Canada
Border Services Agency in execution of
a search warrant.
Application to compel production of
copies made from certain items seized by
Canada Border Services Agency (CBSA)
in execution of a Criminal Code search
warrant. In January 2011 a search warrant
in connection with a CBSA criminal inves-
tigation of respondents was obtained and
executed and items were seized. The items
retained included four computer items. A
forensic examination was conducted of
the items. Mirror electronic images were
made of three of the hard drives and
maintained by CBSA. The four items were
returned to respondent GK in February
2011 but an order of disposition was not
obtained until June 2011. The investiga-
tion concluded without any charges being
laid against respondents and the remain-
ing seized items were returned. CBSA
marked the images for deletion. Applicant
requested access to the images by way of a
further order of discovery in aid of a
worldwide Mareva injunction. Applicant
stated that respondents had left Canada
and, aside from the images, there were
few other remedies available to determine
the whereabouts of respondents’ assets
CONTRACTS
FRUSTRATION – Defendant unable
to establish that lease had been frus-
trated or that the parties had entered
into lease under mistaken belief that
property was zoned for defendant’s
business.
Claim for damages for a breach of a
lease. Defendant was in the business of
recycling products. In 2007 defendant
sought to rent a warehouse from plaintiff.
Defendant wanted the warehouse for the
purpose of a “multi-stream recycling and
processing facility” and accordingly applied
for a licence. The lease between the parties
was signed on April 25, 2008. On May 8,
2008 the city advised defendant that a
multi-stream recycling and processing
facility was not a permitted use under the
applicable zoning. Defendant decided to
proceed nevertheless. In August, defendant began to dig a long pit in the warehouse to locate a conveyor system, incurring expenses and making various
alterations to the building. They did not
seek, or obtain, a building permit and as a
result the city posted a stop work order at
the property. On Sept. 18, 2008, defendant’s business licence application was formally rejected. The rent payments for
August, September and October were
made, but not the November payment. On
Nov. 4, 2008, plaintiff terminated the lease
and gave notice of its intention to claim
damages. Defendant claimed there had
been a frustration of the lease, as the city’s
change in position was an unforeseeable
supervening event. Defendant also claimed
there had been a mistake at common law
as both parties were under the mistaken
assumption that performance of the lease
