Law Times

Law Times • march 13, 2017 Page 15 www.lawtimesnews.com limitation period. It would con- trary to purpose of Act to exempt foreign judgments from limita- tion period, since problems asso- ciated with preservation and reli- ability of evidence were especially pronounced for foreign judg- ment debtors. Applicable limita- tion period was basic two-year period from when claim was dis- covered meaning that commenc- ing proceeding was "appropriate" which meant "legally appropri- ate". It was not legally appropriate to commence legal proceeding in Ontario on foreign judgment until time to appeal foreign judg- ment had expired or all appeal remedies had been exhausted. Plaintiff 's claim based on foreign judgment was discoverable when appeal was dismissed and so pro- ceeding was commenced within limitation period. Independence Plaza 1 As- sociates, L.L.C. v. Figliolini (2017), 2017 CarswellOnt 374, 2017 ONCA 44, George R. Stra- thy C.J.O., G. Pardu J.A., and Da- vid Brown J.A. (Ont. C.A.). Criminal Law PRISONS AND PRISONERS Regulation Corrections Officer's negligence caused inmate's injuries Plaintiff gang member (inmate) was sent to defendant province's pre-trial detention facility with policy of distributing members of same gang as evenly as pos- sible throughout facility. Cor- rections Officer (CO), A, applied policy and housed inmate in unit with R, high-level member of ri- val street gang who was on trial for alleged crimes committed in altercation with inmate's gang. Inmate requested protective cus- tody on prior occasion, but not on current occasion. Inmate was attacked, dragged to another area, beaten viciously by several people. Inmate brought success- ful action against province for damages for negligence. Trial judge held that policy fell square- ly within category of policy deci- sions and was not justiciable, that A's failure to take circumstances into account while fulfilling policy's distribution requirement amounted to negligent conduct, that inmate compatibility should have formed part of calculus, that inmate's failure to request protec- tive custody did not absolve prov- ince from liability, that A ought to have known R posed risk to rival gang members, that layout of fa- cility allowed prolonged attack to go undetected, and that inmate's injuries were direct result of A's negligence. Province appealed. Appeal dismissed. Read holisti- cally, trial judge's "duty of care" analysis disclosed no legal error. Trial judge's findings of breach of that duty and causation of dam- age disclosed neither "palpable and overriding" error of fact nor error concerning "extricable question of law". Trial judge did not conf late concepts of direct and vicarious liability or other- wise fail to apply principle that province's liability had to derive from actionable negligence of specific CO. Trial judge did not hold that institution-level con- duct of gathering and sharing in- formation could ground liability but considered inter-institutional knowledge and sharing of infor- mation about R within govern- ment in support of conclusion that A knew or ought to have known of threat posed to inmate. Any liability of province f lowing from these facts f lowed through A's negligence in housing inmate with R. Trial judge's finding that A breached standard of care had sufficient evidentiary basis. Trial judge's finding that A should have known not to place inmate in same unit as R did not disclose "palpable and overriding error" justifying court's intervention. Trial judge did not unreasonably conclude that negligence of COs caused inmate's injuries. Walters (Litigation guard- ian of) v. Ontario (2017), 2017 CarswellOnt 574, 2017 ONCA 53, G.R. Strathy C.J.O., H.S. La- Forme J.A., and K. van Rens- burg J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12001, 2015 ONSC 4855, Gans J. (Ont. S.C.J.). Estates and Trusts TRUSTEES Practice and procedure Motion judge extended limitation period under s. 38(3) of Trustee Act (Ont.) Motion judge extended limi- tation period under s. 38(3) of Trustee Act and permitted re- spondents to add appellants as named defendants in action. Appellants appealed. Appeal dismissed. No basis was seen on which to interfere with motion judge's discretionary decision. When read as whole, motion judge's reasons revealed that he found special circumstances were present. In reaching this conclusion, motion judge con- sidered lengthy unexplained delay but was satisfied that it was outweighed by other factors. It was undisputed that there was no actual prejudice. Matthews Estate v. Moran (2017), 2017 CarswellOnt 375, 2017 ONCA 47, Simmons J.A., Brown J.A., and Roberts J.A. (Ont. C.A.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] There was reason to question accuracy of information Two accused, SI and SH, were subject of telewarrant. Both ac- cused were found in separate units of same condo building, with drugs, firearms, and am- munition present. Both accused challenged validity of warrant, with SH testifying that he had no knowledge of items in apartment unit which was not his. SI did not testify. Accused moved unsuc- cessfully to cross-examine affiant of warrant. SH was found guilty only as to count of firearm pos- session, with other material not proven to be in his control. SI was found guilty on all counts. SI was sentenced to 10 years' imprison- ment, with SH being sentenced to 6 years imprisonment. Accused claimed that s.8 violation under Charter of Rights and Freedoms should have been found, by trial judge. SI also claimed that sen- tence was unfit. Both accused appealed from convictions. Ap- peal allowed. Cross-examination should have been permitted. There was reason to question ac- curacy of information, with affi- ant expressing some doubt as to contents. Proper corroboration was not present. R. v. Shivrattan (2017), 2017 CarswellOnt 329, 2017 ONCA 23, Doherty J.A., C.W. Hourigan J.A., and L.B. Roberts J.A. (Ont. C.A.). EXTRADITION PROCEEDINGS Extradition from Canada Application for bail pending appeal of extradition order was dismissed United States alleged that ac- cused coerced two sisters liv- ing in Virginia into performing sadistic sexual acts with each other in front of webcam while accused watched and captured images on his computer for plea- sure. Accused was arrested on domestic charges in 2012 and released on bail. Accused was subsequently arrested under Extradition Act and Canadian charges were withdrawn. Ac- cused's application for bail in relation to extradition proceed- ings was dismissed and accused was committed for extradition to United States. Accused was ultimately discharged on appeal, based on finding there was in- sufficient evidence for committal for offence of child luring. United Stated advised they conducted search of accused's computer and as result, 80 new alleged victims were located, 70 of whom were in United States, and accused was once arrested and once again committed for extradition to United States. Accused com- menced appeal of order. Accused brought application under Act for bail pending appeal of order committing him for extradition to United States. Application dis- missed. Appeal was not frivolous; however, accused failed to show he was not f light risk. Strength of case against accused increased as was magnitude of accused's al- leged wrongdoing. Accused was well-versed in travel. Detention was necessary in public interest. Evidence against accused dem- onstrated ongoing systematic pattern of intimidating threat- ening and exploiting vulnerable children; risk of re-offending was not met by proposed plan of supervision. Accused's contin- ued detention was necessary to maintain public's confidence in administration of justice. United States of America v. Viscomi (2016), 2016 Carswel- lOnt 20375, 2016 ONCA 980, Ei- leen E. Gillese J.A., In Chambers (Ont. C.A.). OFFENCES Murder Evidence of co-accused's guilty plea, conviction and sentence were highly relevant Accused and victim were as- sociates in drug trade, but had falling out shortly before shoot- ing that killed victim. On after- noon of shooting, accused was out shopping when he saw vic- tim and got into argument with him. Accused was acquainted with person living in apartment building where victim lived. Victim met accused and his sisters in hallway of apartment building. They had discussion and began walking away from each other when victim turned back, walked up to accused, and according to acquaintance, who was watching through his apart- ment door peephole, pulled out handgun and pressed it against accused's neck. Accused, feel- ing shaken by incident, went to acquaintance's apartment to use bathroom. Accused met another drug dealer in stairwell, who handed gun to accused. Accused asked co-accused, man living on same f loor, to ask victim to come out to hallway. According to co- accused, as victim opened door, accused shot him six times, four time in head, once in neck and once in chest. Co-accused was convicted of manslaugh- ter. Accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 17 years. Accused appealed con- viction and sentence. Appeal dismissed. Trial judge did not err in concluding that evidence of co-accused's guilty plea and conviction and sentence were highly relevant. Trial judge did not err in admitting ante-mor- tem statements made by victim to his fiancée on day of shooting. Jurors were not unaware of need to probe whether victim's fian- cée had motive to lie. Evidence that accused had f lown scene and evaded arrest for 18 months post-offence was properly ad- mitted. Accused had record of continuing violence both as youth and as adult. Sentence was appropriate in circumstances. R. v. Berry (2017), 2017 Car- swellOnt 242, 2017 ONCA 17, J.C. MacPherson J.A., Robert A. Blair J.A., and David Watt J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from conviction or acquittal Appellate court intervened with credibility findings Accused was charged with sexual assault of his sister-in-law N. N came to Canada in 1996 to live with accused, accused's wife, and three other children. N claimed that she was sexually abused 10- 50 times over two-year period from 1997-1999. N claimed that she told accused to stop after her 18th birthday in 1999. N did not go to police regarding assaults until 2011. N had continued to live with accused, who had re- ported N's boyfriend to immi- gration authorities. N's claims at trial of being slave to accused were rebutted by evidence. How- ever, accused was convicted of sexual assault by jury. Accused claimed that verdict was unrea- sonable. Accused appealed from conviction. Appeal allowed. Trial judge had misgivings about N's evidence, and only found one of alleged sexual assaults to have taken place. Trial judge rejected much of N's evidence in sentenc- ing phase. Although it was rare for appellate court to intervene with credibility findings, trial judge's views on credibility gave court opportunity to do so in this case. Risk of wrongful con- viction was too high for convic- tion to stand. Notwithstanding actual jury finding, jury did not act reasonably in finding accused guilty beyond reasonable doubt. Proper remedy was to enter ac- quittal, setting aside jury verdict. R. v. M. (L.) (2017), 2017 CarswellOnt 365, 2017 ONCA 33, Robert J. Sharpe J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Detention and release after trial There was no documented treatment impasse Appellant T was found not criminally responsible for as- sault, in 2011. T had been de- tained as mental health patient since NCR designation, in maximum security facility W. On review of disposition, board found that T was significant risk to public and should remain in W. T claimed that he should have been transferred to less secure facility. T claimed that evidence before board, includ- ing that of treating psychiatrist, was invalid. T appealed to court from board's decision, seeking transfer to new facility. Appeal was dismissed. T claimed that he needed new assessment of risk, by independent psychiatrist. T claimed that new hearing should follow assessment. T appealed from lower court's judgment. Appeal dismissed. There was no documented treatment impasse, as T had claimed. Proposed treatment had ability to benefit T. Issues facing T could only be dealt with in W, as less secure facility could not meet T's needs. Evidence in hospital report and from employee of W was prop- erly used to come to conclusion. Trang, Re (2017), 2017 Car- swellOnt 744, 2017 ONCA 63, Doherty J.A., R.A. Blair J.A., and P. Lauwers J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 10933, J. Goldenberg Alt. Chair, K. Connidis Member, D.A. Galbraith Member, G. Nexhipi Member, and L. Montgomery Member (Ont. Review Bd.). CASELAW

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