Law Times

Law Times • sepTember 14, 2015 Page 15 www.lawtimesnews.com brought action against em- ployer for payment of further commission. Action allowed. Employee was awarded ad- ditional $86,291.64 for com- mission owing. Employer had tried to unilaterally change terms of employee's commis- sion arrangement when it knew it would be obtaining its single largest contract ever from Iraq's Ministry of Health. Parties' ini- tial contract applied, though due to ambiguities in mean- ing of "paid for sales" and "per project basis," use of extrinsic evidence was permitted to re- solve ambiguities. Phrase "paid for sales" was taken to mean employer's gross margin, which was $1,514,902.81 after deduct- ing 34-per-cent fee paid to Iraqi agent. Bank charges were not deducted since they were part of employer's direct costs. Commission for sales in Iraq were to be at least seven per cent having regard to potential dangers when conducting busi- ness in that country. Fact that employer tried to impose lower commission structure on em- ployee supported conclusion that employer knew employee was entitled to at least seven per cent. Employer had also paid employee seven per cent for subsequent minor sales in Iraq. Amount awarded would have been same on quantum meruit basis. Ali v. O-Two Medical Technolo- gies (Jun. 19, 2015, Ont. S.C.J., LeMay J., File No. CV-09-4189- 00) 255 A.C.W.S. (3d) 637. Insurance LIABILIT Y INSURANCE Contractor's cross-claim against subcontractor for damages to hospital outside of kitchen not barred by covenant to insure Plaintiff brought action against contractor and subcontractor for damages done by subcon- tractor during renovations to kitchen in hospital owned by plaintiff. In course of subcon- tractor's work on renovation, water line separated. That re- sulted in f looding that dam- aged not only kitchen but other areas of hospital. Parties sought determination of question of law of whether contractor could maintain its cross-claim against subcontractor for con- tribution and indemnity un- der Negligence Act. Contrac- tor accepted that, according to tort immunity principle, it could not cross-claim against subcontractor for damages to kitchen. However, contractor argued that it was not barred from cross-claiming against subcontractor for damages to rest of hospital. Order granted. Extent of subcontractor's tort immunity was directly related to extent of contractor's cove- nant to insure. Covenant to in- sure was set out in contract be- tween plaintiff and contractor. Contractor obtained insurance for property at project site and insured "property in course of construction." It would strain interpretation of both policy and contract between plaintiff and contractor if court were to find that "property in course of construction" included entire hospital. Thus, covenant to in- sure covered project, but not rest of hospital. Contractor's cross-claim against subcon- tractor for damages to hospi- tal outside of kitchen was not barred by covenant to insure. William Osler Health Centre v. Compass Construction Re- sources Ltd. (Jun. 25, 2015, Ont. S.C.J., Firestone J., File No. CV-09-391051) 255 A.C.W.S. (3d) 794. Torts NEGLIGENCE Foreseeable that person of ordi- nary strength, courage, and resilience would suffer serious psychological injury if person's identity were disclosed when pro- tected by non-publication order Plaintiff testified during trial of two counts of sexual assault. Plaintiff feared retribution and order directed identity of com- plainant or of witness were not to be published. Defendant was in court at time order was made. No formal order was prepared or distributed. De- fendant indicated in online story that publication ban was extended to complainant's name and names of witnesses. Convictions were set aside and plaintiff testified at retrial. At retrial judge inquired about publication ban and Crown described publication ban as relating to complainant. Plain- tiff 's name appeared in on-line and print articles published concerning her testimony. De- fendant attempted to delete plaintiff 's name in on-line ver- sion but plaintiff 's name con- tinued to appear in two places. Plaintiff asserted she became reclusive and fearful and at- tributed them to breach of non-publication order. Plain- tiff sought damages. Action allowed. Plaintiff was awarded general damages of $40,000. Journalist fell below standard of reasonably prudent reporter. Duty of care was established. Non-publication order created relationship of sufficient prox- imity to obligate defendant to be mindful of interests of all of those who testified at GL's second retrial. Journalists had responsibility to familiarize themselves with existence and scope of non-publication order. There was no need to rely on Crown or court file. Journalist was present when re-trial was adjourned and knew precisely what restrictions were imposed on media. Permanent, easily ac- cessible, and retrievable record of existence and terms of order should have been made. Any notebook should have been re- tained and checked and should not have been discarded few months later as part of reno- vation-related purge. Another record remained in any event in article published online. Article published online about pub- lication ban should have been reviewed. Plaintiff proved that article was cause of confronta- tions, assaults and harassment that followed. Evidence estab- lished that plaintiff had social anxiety disorder that would not have arisen but for publica- tion of her identity. Article was cause of plaintiff 's reclusive- ness, fear of going out in public, dislike of group settings and hyper-vigilance. Disorder was different in nature and degree from her long-standing depres- sion and anxiety associated with motor vehicle accident. It was foreseeable that person of ordinary strength, courage and resilience would suffer serious psychological injury if their identity were disclosed when protected by non-publication order. Jane Doe v. London Free Press (Jul. 2, 2015, Ont. S.C.J., A.D. Grace J., File No. 6173/12) 255 A.C.W.S. (3d) 627. ONTARIO CRIMINAL CASES Appeal PLEA OF GUILT Y Accused failed to demonstrate any prejudice amounting to miscarriage of justice arising from conduct of trial counsel Accused sought to overturn trial judge's refusal to set aside his plea of guilty to charge of aggravated assault. Appeal dis- missed. Before plea was entered, counsel for accused advised court that he had undertaken plea inquiry, and that accused wished to plead guilty. At time of plea, Crown read detailed recitation of facts. At conclu- sion, accused's counsel stated that he had reviewed facts with his client and that they were substantially correct. Counsel raised four qualifications, none of which went to substance of allegations. In light of facts ad- mitted, qualifications did not reasonably give rise to defence. Accused personally pleaded guilty to charge. Accused had pleaded guilty to other charges in past. In this case, accused was assisted by Punjabi inter- preter, represented by expe- rienced Punjabi counsel, and supported throughout by his family members. Accused's in- structions were clear and were written, translated and signed by accused. Trial judge made findings of credibility and ac- cepted evidence of accused's trial counsel regarding entry of plea. With respect to accused, trial judge expressly disbelieved him. Trial judge noted that ac- cused was someone whose criminal background and age clearly indicated that he was quite familiar with workings of criminal justice system. Trial judge reiterated that accused had "utterly failed" to demon- strate that his guilty plea should be struck. Evidence supported these findings. Court appreci- ated that accused was renewing his claim that his plea to aggra- vated assault was occasioned by ineffective representation of his trial counsel. In par- ticular, accused submitted that trial counsel's representation fell below applicable standard because he failed to review el- ements of offence of obstruct justice with accused, or to ad- vise him of potential defence of self-defence. Court's previous comments regarding nature of plea also applied to trial judge's ruling on accused's ineffective assistance claim. Court agreed with that ruling. Accused had failed to demonstrate any prejudice amounting to mis- carriage of justice arising from conduct of his trial counsel. Ac- cused was liable to significant jail sentence upon conviction of multiple charges that he faced. Negotiated results achieved by his trial counsel eliminated that risk. Prejudice requirement of ineffective assistance claim not having been demonstrated, ap- peal failed. R. v. Grewal (Jun. 18, 2015, Ont. C.A., G.R. Strathy C.J.O., E.A. Cronk J.A., and M.L. Benotto J.A., File No. CA C58526) 123 W.C.B. (2d) 4. Breaking and Entering PROOF OF OFFENCE Trial judge properly assessed identification evidence Accused appealed from con- viction for breaking and en- tering with intent to commit indictable offence, assault with weapon, uttering threat, and two counts of failure to com- ply with probation. Complain- ant, 15 year old young man was awakened in his home around 4 a.m. by sound of his dog bark- ing and saw light near family car, went outside to investigate and saw man. Man ran away and complainant chased him. When complainant caught up to man at unit in nearby hous- ing complex, man picked up steel pipe and hit complain- ant in chest. Shortly thereafter, complainant saw man he iden- tified as intruder enter same housing unit and reported all of this to police who knocked on door of unit but received no answer. About four hours later, police called and spoke to oc- cupant of unit, accused, to tell him to come outside and talk to them. Ten minutes later, ac- cused came outside. Accused's head was shaved, with fair amount of blood f lowing from it. Appeal dismissed. Accused disagreed that evidence of iden- tification was sufficient to sup- port convictions. This was not case based exclusively on iden- tification evidence. There was constellation of evidence that included eyewitness identifica- tion of complainant who pur- sued accused on foot and where accused numerous times looked back at his pursuer. Trial judge found complainant's evidence to be both credible and reliable. None of it was misapprehended by trial judge. Trial judge's rea- sons made it abundantly clear that he was well aware of frail- ties of identification evidence. Trial judge found as fact that accused had hurriedly shaved his head in time between police phone call and when he exited premises. Trial judge was en- titled to find that accused had shaved his head in order to at- tempt to disguise his identity. It was arguable that trial judge may have placed some weight on fact that accused was likely person who robbed mother in past. If so, this could amount to impermissible propensity reasoning. However, trial judge clearly noted that his remarks in this regard were "not inte- gral to this case." Result would be same without any consider- ation of these remarks. Assess- ing evidence all together as was required, it was more than ca- pable of supporting inferences and findings of fact trial judge made. Trial judge did not mis- apprehend any evidence and in particular he properly as- sessed identification evidence. Verdicts were supported by evi- dence and were not unreason- able. R. v. Coady (Jun. 26, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. LaForme J.A., File No. CA C59399) 123 W.C.B. (2d) 24. Murder ATTEMPTED MURDER Even if first shot was accident, in circumstances it was proper to instruct jury on attempted mur- der in relation to second shot Accused was convicted of 10 offences, including attempted aggravated assault, discharge of firearm, and possession of dangerous weapon, and ap- pealed those convictions. Ac- cused asserted that trial judge erred by giving same charge on attempted murder in relation to both shots and said that if jury found, as it could have, that first shot was accident, then there was no basis on which jury could have concluded that ac- cused intended to hit complain- ant with the second shot. Ap- peal dismissed. Trial judge ad- equately cautioned jury about frailties of eyewitness evidence and pointed to specific weak- nesses of such evidence in this case. Moreover, charge as whole properly emphasized dangers of relying on in-court identifi- cations. Appeal dismissed. Ac- cused tried to close garage door after he fired first shot. Accused kicked bleeding complainant in face and told three men "you guys are done," then chased complainant out of garage, he fired second shot, and after he dropped his handgun he went back to garage to get another weapon, hammer. In these cir- cumstances, even if first shot was accident, it was proper to instruct jury on attempted mur- der in relation to second shot. R. v. Degraw (Jul. 8, 2015, Ont. C.A., G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Ben- otto J.A., File No. CA C56271) 123 W.C.B. (2d) 63. LT CASELAW

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