Law Times

Law Times • June 20, 2016 Page 15 www.lawtimesnews.com CASELAW period. Motion judge dismissed patient's motion because she had not provided expert evidence on aspects of standard of care she alleged surgeon failed to meet and trial was needed of issue what patient would have done had she been given all required information. Surgeon appealed and patient cross-appealed. Ap- peal dismissed; cross-appeal dis- missed. Motion judge did not err in interpretation of s. 5(1)(a)(iv) of Act. Motion judge was entitled to conclude on facts that patient did not know that bringing action against surgeon would be appro- priate means to remedy injuries and damage she suffered until after last surgery. Section 5(1) (b) of Act was met, as reasonable person in patient's circumstanc- es would not consider it legally appropriate to sue surgeon when he was in process of correct- ing mistake and was hopefully successful. Fact that surgeon engaged in good faith efforts to remediate damage and improve outcome of initial surgery could have avoided need to sue. Action was not statute-barred. Brown v. Baum (May. 3, 2016, Ont. C.A., K. Feldman J.A., P. Lauwers J.A., and M.L. Benotto J.A., CA C60281) Deci- sion at 251 A.C.W.S. (3d) 695 was affirmed. 265 A.C.W.S. (3d) 477. Partnership GENERAL Power of expulsion in part- nership agreement was to be construed strictly Accountant had been partner at financial services firm since 1992. In July 2014, accountant was told he would have to retire prior to mandatory retirement date in partnership agreement. Accountant's forced retirement was related to economic circum- stances rather than accountant's conduct. Subsequent nego- tiations were not fruitful. Firm acted pursuant to provision in partnership agreement allow- ing firm to require accountant to retire on basis that it was in best interest of firm. Accoun- tant commenced action against firm for damages for breach of contract. Accountant brought motion for summary judgment. Motion granted; action al- lowed. Accountant was awarded $1,294,937 for lost profits and re- tirement benefits and $100,000 for aggravated damages. Action taken by firm under provision in partnership agreement was in- valid. Decision to force accoun- tant to retire had already been made, and action taken under provision was merely attempt to legitimize that decision. Persons with power of expulsion essen- tially abdicated that power, or at least acquiesced in usurpation of that power by parties disentitled to wield it. Power of expulsion was to be construed strictly. In any event, provision had been used improperly. Accountant had not been given express op- portunity to be heard. In ab- sence of cause, good faith on part of expelling partners was sine qua non. Firm provided no evidence that determination to expel was in firm's best interest. Tim Ludwig Professional Corp. v. BDO Canada LLP (Mar. 31, 2016, Ont. S.C.J., Graeme Mew J., Toronto CV-15- 528598) 265 A.C.W.S. (3d) 495. Professions PSYCHOLOGISTS Doctor owed no duty of care to father or his family with respect to reporting allegations of abuse made by minor Plaintiff parents adopted minor but adoption broke down after five years due to minor's severe behaviour. Minor later disclosed to defendant doctor that plain- tiff father physically and sexu- ally abused her, which resulted in criminal charges and child protection proceedings against him. Charges and child pro- tection proceedings were ulti- mately withdrawn but they had significant impact on father and other plaintiffs, father's family. Plaintiffs brought action seek- ing damages based on number of causes of action. Defendant doc- tor, children's aid society, child protection worker and her super- visor brought motion to dismiss claims against them on basis that they disclosed no cause of action. Motion granted. On plain and ordinary reading of statement of claim, action against doctor was framed in negligence. Doctor- patient relationship was exclu- sively between doctor and minor. Doctor began treating minor after she left plaintiffs' house- hold. No duty of care was owed by doctor to plaintiffs because there was lack of proximity, as plaintiffs had no relationship with minor at time of treatment, and there was no recognized duty. Even if plaintiffs stood in sufficiently proximate relation- ship, law was well-established that treating psychologist owed no duty of care to patient's fam- ily. Pursuant to s. 72 of Child and Family Services Act (Ont.) there was positive obligation on doctor to report any reasonably based suspicion that child she was treating had been or would be victim of physical or sexual abuse. Doctor was required to report minor's allegations of physical and sexual assault by father that occurred when she was in his charge. Doctor owed no duty of care to father or his family with respect to report- ing allegations of abuse made by minor. Potential for conf lict of interest negated imposition of duty of care by doctor to plain- tiffs. Plaintiffs' negligence claim against doctor was struck out. Kivell v. Chatham-Kent Children's Services (Mar. 18, 2016, Ont. S.C.J., R.M. Raikes J., Chatham 6166/15) 265 A.C.W.S. (3d) 506. Wills and Estates ESTATE ADMINISTRATION There was no want of due care in failing to invest estate assets in more lucrative investments Plaintiff was daughter of de- ceased. Deceased's sister was named executrix. Plaintiff and her sibling were residual benefi- ciaries of estate. Deceased owned shares of company. Deceased owned 50 per cent of company and his older brother owned 50 per cent. Executrix sold shares to deceased's older brother and company. Plaintiff knew of sales of share and said nothing about sale of shares. Executrix provided older brother with release on sale of shares. Plaintiff asserted will did not authorize sale of shares and sale was improvident. Plain- tiff asserted executrix did not act properly in administration of estate. Plaintiff objected to estate accounts prepared by executrix. Plaintiff brought action claiming breach of fiduciary duty. Action dismissed. Executrix owed fidu- ciary duty to beneficiaries and had obligation to properly ad- minister estate. Action dismissed. Executrix fulfilled her duties as trustee appropriately. Executrix sought advice from lawyers about administration of estate and ne- gotiated sale price for shares with view to obtaining fair market value for shares. Executrix's con- duct in selling shares was reason- able. Executrix was authorized to sell shares under will and did not breach any duty in selling shares. Application to interpret would have increased legal costs. Failure to say something led executrix to believe that plaintiff did not op- posed sale of shares. Executrix was obligated to sell shares for fair market and sale of shares for $265,000 represented fair market value of shares. Executrix was not to be criticized for failing to take more proactive steps with respect to management and operation of company. Executrix was not required to become involved in management of company and it would not have been appropriate for her to take any steps to seek to recover on promissory note. There was no want of due care in failing to invest estate assets in more lucrative investments. Eve v. Wilhelm Estate (Trustee of) (Mar. 1, 2016, Ont. S.C.J., P.R. Sweeny J., Kitchener ES-756-11) 265 A.C.W.S. (3d) 369. Ontario Criminal Cases Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Prospect of deportation did not render sentence grossly disproportionate Accused was found to be only occupant of home that contained marijuana grow operation. Jury found accused guilty of marijua- na production and possession of marijuana for purpose of traf- ficking. There were close to 500 plants in basement and accused was subject to mandatory mini- mum sentence of one year of im- prisonment pursuant to s. 7(2) (b)(iii) of Controlled Drugs and Substances Act (Can.). Crown conceded that accused was gar- dener. Accused was permanent resident from China and would be deported if sentenced to at least six months of imprison- ment. Accused was sole sup- port of family and imposition of mandatory minimum sentence would be devastating. Accused brought application for declara- tion that s. 7(2)(b)(iii) was of no force and effect because it con- stituted cruel and unusual pun- ishment within meaning of s. 12 of Canadian Charter of Rights and Freedoms. Application dis- missed. Prospect of deportation could not transform otherwise constitutionally acceptable sen- tence into one that was grossly disproportionate. Without man- datory sentence appropriate range of sentence would be be- tween six and 12 months. Since mandatory sentence was at top of range it was not grossly dis- proportionate and did not vio- late s. 12. Sentence was also not grossly disproportionate to rea- sonable hypothetical offender. R. v. Li (Mar. 11, 2016, Ont. S.C.J., L. Bird J., Oshawa OCJF 13708/14) 129 W.C.B. (2d) 123. RIGHT TO COUNSEL Police officer failed to sat- isfy his obligations respect- ing right to counsel Crown asked court to grant leave to appeal on basis that it raised important questions about detainee's obligation of diligence in s. 10(b) Charter ap- plication. Leave to appeal de- nied. On findings of trial judge, ratified by summary convic- tion appeal judge, police officer failed to satisfy his obligations to afford accused not only rea- sonable opportunity to contact counsel of his choice but also to facilitate that contact. In light of those failings, it was unsurpris- ing that trial judge accepted ac- cused's evidence that he felt he had no choice but to speak with duty counsel. Accordingly, this matter did not meet R.R. test and leave was denied. R. v. Vernon (Mar. 14, 2016, Ont. C.A., Feldman J.A., Gil- lese J.A., and Huscroft J.A., CA C60937) Leave to appeal deci- sion at 124 W.C.B. (2d) 241 was refused. 129 W.C.B. (2d) 110. Evidence VIDEO AND AUDIO EVIDENCE Trial judge weighed evidence as to credibility and reliabil- ity on important issues Accused was convicted of sexual assault, sexual interference and invitation to sexual touching against stepdaughter who was aged between four and nine years old at time of offences. Complainant's video recording admitted as evidence under s. 715.1 of Criminal Code. Accused appealed convictions on ground that trial judge erred in accepting testimony of stepdaughter and her brother. Brother had admit- ted to having lied in his testimo- ny before court. Accused argued stepdaughter could not confirm her statement because of her complete loss of memory con- cerning events related in state- ment. Accused contended that statement unreliable because inspector suggested answers to stepdaughter on important is- sues. Appeal dismissed. Trial judge was aware of problematic aspects of evidence of complain- ant and her brother. She weighed evidence as to credibility and re- liability on important issues and accepted parts she considered reliable and credible. Trial judge considered fact that brother had invented some of his testimony before viewing his video state- ment but accepted bulk of his testimony was credible and reli- able. Most of brother's testimony confirmed that of complain- ant that accused had touched her. During trial, although she could not remember all details of video recording, complain- ant recalled that accused had touched her. She remembered making her statement on video recording and that she had told truth. Therefore she confirmed her video testimony. Judge rec- ognized that inspector should not have asked some questions of complainant especially about oral sex but relied on other sex- ual assaults. Complainant was first to use word "touched" and recounted in great detail several incidents of sexual assault before inspector asked about oral sex. R. c. L. (A.) (Mar. 11, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., G. Pardu J.A., and L.B. Roberts J.A., CA C58571) 129 W.C.B. (2d) 146. Extradition and Fugitive Offenders PROCEDURE Fugitive not entitled as of right to disclosure of correspondence Minister refused request for disclosure of any correspon- dence in possession of Attorney General (Ontario) or Attorney General (Canada) referable to decision to terminate Ontario prosecution and support extra- dition. Fugitive was not entitled as of right to that disclosure, but must show some air of reality to argument that disclosure may support claim that extradition would violate fugitive's Charter rights. Minister found no basis to question decision to terminate Ontario prosecution. Fugitive applied for disclosure refused by Minister. Application dis- missed. There was no air of re- ality to claim that affidavit filed in support of Crown request for adjournment was somehow misleading and part of scheme to permit fugitive's extradition. Request was for adjournment to October. Had request been granted, trial would have pro- ceeded in October, two months before extradition request was made. There was no factual er- ror in Minister's assessment of Cotroni factors. Having regard to those factors, Minister's as- sessment was not unreasonable. Canada (Minister of Justice) v. Mgbolu (Mar. 16, 2016, Ont. C.A., Doherty J.A., Simmons J.A., and van Rensburg J.A., CA C60965) 129 W.C.B. (2d) 149.

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