complainant, her two minor children and a
friend of one of the children, accused
inappropriately touched each of them. At
trial, the Crown tendered videotaped evidence of the three child complainants who
adopted their evidence pursuant to s. 715.1
of the Criminal Code. The child complainants also gave further evidence-in-chief and
were cross-examined. The adult complainant also testified. The testimony of the four
complainants was similar in that they all
testified to inappropriate touching and groping in accused’s car while he drove them to
their various activities. The judge granted
the Crown’s application to have the evidence
of each of the complainants admitted as
similar fact evidence in connection with the
charges involving the other complainants.
HELD: Appeal allowed in part. Convictions on three of the counts were set aside
and a new trial was ordered. While the trial
judge was clearly aware of the dangers of
basing convictions on similar fact evidence,
the controversial evidence was properly
before the judge in connection with the
individual charges and the judge only considered it in connection with three of the
charges, he erred in admitting the similar
fact evidence as its probative value was not
greater than its prejudicial effect. The
prejudice to accused was significant as the
unrelated complaints were clearly suggestive of criminal behaviour. With respect to
three of the counts, the judge bolstered his
conclusions about the complainants’ credibility with similar fact evidence.
R. v. Vuradin, [2011] A.J. No. 1057,
Alta. C.A., per O’Ferrall J.A. (Côté and
McDonald JJ.A. concurring), Oct. 7/11.
Digest No. 3125-013 (Approx. 30 pp.)
Act, or both. The decision was made despite
the existence of conflicts in the affidavit
evidence and the absence of cross-examination thereon. It was impossible, due to the
conflicts, to determine the circumstances of
each child during the time for which support was requested and ordered. It was
unclear from the reasons for judgment
whether the children were “children of the
marriage” under the Act for the relevant
periods of time. The matter was remitted
for re-determination.
Kupsch v. Kupsch, [2011] A.J. No.
1058, Alta. C.A., per Côté, Paperny and
Slatter JJ.A., Oct. 7/11. Digest No. 3125-
014 (Approx. 5 pp.)
CUSTODY – Mother ordered to
return child of the marriage to father in
Toronto so she could attend high school
in that city.
Application by the father for an order
that the mother immediately return the
child to the jurisdiction of Toronto so that
the child could attend high school. Application by the mother for an order that the
child’s permanent residence was in Hamilton and that she should attend high school
there. The parties followed the equal parenting schedule provided in a 2007 consent
order until 2008, when the wife moved to
Hamilton. An August 2009 order provided
that the daughter’s permanent residence was
in Toronto. In 2010 the father registered the
daughter in high school in Toronto. The
mother had registered the daughter at a high
school in Hamilton without notice to the
father. The daughter attended the first week
of school in Toronto. Her mother refused to
return her to the father and the daughter
attended one day of school in Hamilton.
HELD: Application by father allowed.
Application by mother dismissed. There
was no agreement between the parties that,
after grade eight, the daughter would go to
live with the mother in Hamilton. The
father informed the mother in October
2010 that he was looking into high schools
for the daughter. The mother chose not to
involve herself in the process. The mother
cancelled a mediation session she had
scheduled to discuss the high school issue.
The mother was clearly aware that the
daughter was enrolled in a Toronto high
school. The mother’s conduct in secretly
enrolling the daughter in a Hamilton high
school and in involving the daughter in the
secrecy was reprehensible.
Huliyappa v. Menon, [2011] O.J. No.
4348, Ont. S.C.J., Wilson J., Sept. 27/11.
Digest No. 3125-015 (Approx. 7 pp.)
month basis on the same terms and conditions. Approximately two months into the
extended agreement, SEP Inc. gave eight
months’ notice of termination. Plaintiff
proposed a class action based on the right
of rescission of a franchisee whose franchisor had not provided a disclosure statement. The motion judge found that SEP
Inc. was exempted from providing a disclosure statement to plaintiff prior to execution of the franchise agreement pursuant to
subpara. 5( 7)(g)(ii) of the Arthur Wishart
(Franchise Disclosure) Act (Ont.) because
the agreement was not valid for longer than
one year. The judge dismissed the action.
HELD: Appeal dismissed. The motion
judge did not err in finding that the franchise agreement was not valid for more
than one year. The one year requirement
was based on the term of the agreement
rather than running from the date on
which the agreement was executed. The
survival of indemnity and confidentiality
provisions beyond expiration did not
extend the franchise agreement itself. The
possibility of a month-to-month tenancy
provided by the agreement post-expiration
did not extend the agreement. The post-expiration extension of the parties’ agreement created new monthly agreements
rather than a longer franchise agreement.
SEP Inc. was exempt from providing plaintiff with a disclosure statement.
TA & K Enterprises Inc. v. Suncor
Energy Products Inc., [2011] O.J. No.
4242, Ont. C.A., per Goudge J.A. (Mac-
Farland and Watt JJ.A concurring), Sept.
27/11. Digest No. 3125-016 (Approx. 7 pp.)
INJUNCTIONS
from soliciting plaintiff’s clients and requiring her to return plaintiff’s property and
produce certain records. Plaintiff had operated a dance studio since 1992. Defendant
was a student of plaintiff’s from 1993 to
1995 and later became a teacher’s aide and
then an instructor. Defendant’s employment agreement with plaintiff did not contain a restrictive covenant. Although the
parties had discussions regarding defendant buying plaintiff’s business, no agreement was reached. In 2011 defendant
opened her own dance studio. Plaintiff
commenced an action against defendant
seeking damages for loss of income, future
loss of income and loss of goodwill from
defendant for breach of trust, breach of
fiduciary duty and intentional interference
with economic relations. Defendant alleged
she did not solicit any of plaintiff’s clients
and did not use or take any of plaintiff’s
confidential information or other property.
HELD: Motion dismissed. As plaintiff
had not sought a permanent injunction in
her statement of claim, she was not entitled
to an interlocutory injunction. There was
no serious issue to be tried as defendant
was not a key employee of plaintiff’s business. In addition, plaintiff failed to establish irreparable harm as she could be
compensated in damages. The balance of
convenience favoured defendant as an
injunction would prevent her from operating her business and teaching students
who were already registered.
Laplante (c.o.b. Pascalina’s Dance
Studio) v. Hennessy-Craibe (c.o.b. Beat
Central Dance Co.), [2011] O.J. No.
4298, Ont. S.C.J., Quigley J., Sept. 28/11.
Digest No. 3125-017 (Approx. 6 pp.)
FAMILY LAW
INTERLOCUTORY INJUNCTIONS
– Plaintiff unable to meet test for inter-
locutory injunction to restrain defend-
ant from soliciting her clients.
Motion for an interlocutory injunction
prohibiting defendant and her business
INSURANCE (LIABILITY)
CHILD SUPPORT – Chambers judge
erred in determining retroactive child
support in face of conflicting evidence
and without evidence of circumstances of
the children.
Appeal by the father from an order
requiring payment of retroactive support.
The parties divorced in 1994. They had three
children, aged 21, 22 and 26. Minutes of
settlement provided for indexed child support of $350 per month per child until the
earliest of ceasing to live with the mother,
completion of post-secondary education,
attainment of age 19 without enrolment in
post-secondary education, or attainment of
age 23. In 2005 an addendum to the minutes purported to address inequities arising
from non-payment or underpayment of support. The father paid $12,000 in arrears.
The addendum provided that support would
continue for as long as the children resided
with their mother until attainment of age 19
or age 23 while pursuing post-secondary
education. The father ceased payment of
support in March 2008 on the basis that the
children were no longer dependent. In April
2011 the chambers judge found that the
mother had demanded increased child support in September 2009. The judge awarded
retroactive support to September 2006, payable until each child had attained age 23.
The total amount owed was $132,581.
HELD: Appeal allowed. In awarding
retroactive support, the chambers judge
failed to reference other aspects of the
addendum agreement, including the proviso regarding pursuit of post-secondary
education. No determination was made as
to whether the father’s child support obligation arose under the terms of the agreement, under the provisions of the Divorce
DUTY TO DEFEND – Judge did not
err in directing appellant insurer to
defend respondent in negligence action.
Appeal from an order directing appellant
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FRANCHISES
DISCLOSURE – Franchisor did not
have to provide disclosure statement to
plaintiff because franchise agreement not
valid for longer than one year.
Appeal from summary judgment
granted in favour of defendants. Plaintiff
operated a gas station under a franchise
agreement with defendant SEP Inc. The
term of the agreement was one year with no
option for renewal. Plaintiff acknowledged
that the form of the agreement was typical
for SEP Inc. and that SEP Inc.’s agreements
with its franchisees often changed from
year to year. SEP Inc.’s parent company
merged with Petro Canada, resulting in a
required divestment of a certain number of
gas stations. SEP Inc. advised plaintiff that
their franchise agreement would be
extended upon expiration, on a month-to-
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MILLIE SWINGLE, Deceased
Anyone having knowledge of a Will
of Dorothy Millie Swingle, late of
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