Law Times

Law Times • OcTOber 2, 2017 Page 15 www.lawtimesnews.com CASELAW SUMMARY JUDGMENT Evidence on application Appellate court having jurisdiction to hear evidence excluded by motion judge Landlord operated seasonal campground at marina. Plain- tiff was guest of tenant who par- ticipated in recreational game of tug-of-war at marina. Rope had been provided by son of land- lord's owner after being asked, but landlord had no other in- volvement in tug-of-war. Plain- tiff put his arm in loop in rope, and his forearm and hand had to be amputated due to constric- tion from rope. Plaintiff brought action against landlord, owner, and son for relief under Occupi- ers' Liability Act while landlord and owner moved for summary judgment dismissing action. Mo- tion judge struck some evidence from affidavit of one person at campground as well as discovery evidence of son and two others and granted summary judg- ment dismissing action against landlord and owner, but son re- mained defendant as he did not defend action. Plaintiff appealed. Appeal allowed. Appellate court had jurisdiction to hear evidence that motion judge excluded from consideration. Evidence was not interlocutory because its exclu- sion was not standalone order, but rather inextricable part of decision to grant judgment. Fur- ther, bifurcating appeal by allow- ing some of motion judge's rea- sons to be appealable at appellate court and others at divisional level would unduly complicate appeal process, contrary to R. 20 and 1.04 of Rules of Civil Proce- dure (Rules) and of promotion of more efficient and inexpensive access to justice as mandated by Supreme Court of Canada deci- sion of Hryniak. Motion judge erred by excluding discovery evi- dence of son and two others and by interpreting R. 31.11 and 39.04 of Rules with too much rigor. Ex- cluded discovery evidence sup- ported assertion that there was triable issue as to vicarious liabil- ity of landlord and owner. Bonello v. Gores Landing Marina (1986) Limited (2017), 2017 CarswellOnt 11969, 2017 ONCA 632, Robert J. Sharpe J.A., M. Tulloch J.A., and P. Lau- wers J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 13519, 2016 ONSC 5372, Perell J. (Ont. S.C.J.). TRIALS Conduct of trial Informer privilege rule is mandatory, subject only to "innocence at stake" exception Confidential police informer (informer) claimed that, dur- ing criminal trial, police wit- ness revealed informer's identity in open court. Informer com- menced against police, Crown, and former criminal defence lawyers. Informer brought mo- tion for sealing order, publica- tion ban, and amendment to pleadings substituting initials for name. Motion granted. Steps must be taken to protect infor- mation that might reveal identity because informer privilege rule was mandatory, subject only to "innocence at stake" exception. Court did not have discretion with regard to privilege and was under duty to protect informer's identity. Civil liability for breach- es of informer privilege support- ed values which led to creation of rule, and operated in tandem to support protection of identity of informers in criminal justice sys- tem. Accountability in civil sys- tem was part of safety-net which was meant to protect informers from retribution and encourage cooperation by potential inform- ers. Reducing or eliminating civil redress for damages associ- ated with breaches of informer privilege by failing to protect in- former's identity was contrary to public interest. John Doe A v. John Doe D (2017), 2017 CarswellOnt 3663, 2017 ONSC 1133, F. Kristjanson J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Multiple factors considered in awarding trial costs Parties had traditional mar- riage lasting 23 years. On wife's motion to vary support, mo- tion judge found that youngest child was not entitled to ongo- ing child support but that there had been material change in cir- cumstances justifying increase in spousal support. Motion judge ordered wife to pay costs of $45,000 to husband. Motion judge found that husband did much better than his offer and that while success was divided, husband was successful on most important issue of spousal sup- port. Court of Appeal allowed wife's appeal in part on ground of spousal support but dis- missed it relating to child sup- port. Court of Appeal awarded wife costs of appeal in reduced amount given divided success. Parties made submissions as to trial costs. Motion judge's costs award was set aside and substi- tuted with trial costs award to wife on partial indemnity scale fixed at $20,000 all-inclusive. Neither party could demon- strate that they submitted offer to settle that was equal to or bet- ter than result achieved on ap- peal. Wife succeeded in estab- lishing material change in cir- cumstances and in her claim for increased spousal support. Wife was unsuccessful in her claim for ongoing child support. Giv- en relative financial significance of issues and increased spousal support awarded to wife on ap- peal, new award for costs of trial was warranted. Slongo v. Slongo (2017), 2017 CarswellOnt 13574, 2017 ONCA 687, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.); ad- ditional reasons (2017), 2017 CarswellOnt 4554, 2017 ONCA 272, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.). CUSTODY AND ACCESS Factors to be considered in custody award Application for final custody orders granted to parents Parties separated after 12-year marriage. There were two chil- dren of marriage, ages 11 and 13. Each child had learning disabili- ties and youngest child had de- velopmental delay. 2013 consent order provided for joint custody with interim support and alter- nating weekend access for father. Joint custody situation proved unworkable and 2013 order was varied to provide mother with sole custody of eldest child and father sole custody of youngest child. Jurisdiction was reserved by court to amend interim orders or issue final orders due to con- cerns with each parent's conduct. Parents brought application for final custody orders. Application granted. Custody of eldest child should remain with mother. Re- lationship between father and eldest child was slowly improv- ing but remained problematic due to father's inability to listen. Father's access to eldest child was increased to include one over- night every second weekend. Father was properly managing youngest child's academic prog- ress and should retain sole custo- dy. Youngest child's best interests were served by maximum con- tact with both parents. Parenting schedule of week about access was continued. De Matos v. De Matos (2017), 2017 CarswellOnt 4935, 2017 ONSC 2045, LeMay J. (Ont. S.C.J.). Remedies INJUNCTIONS Availability of injunctions Improper to impose duty to consult on Crown as precondition to injunction¶ Plaintiff owned and operated in- terprovincial pipeline system, it sought to carry out and complete maintenance work in respect of two pipelines, and claimed defendants had been regularly interfering with its work crews and maintenance dig sites. De- fendants were representatives of Haudenosaunee Development Institute, and Haudenosaunee were six First Nations in On- tario. Plaintiff brought motion for interim and interlocutory in- junction prohibiting defendants from interfering with mainte- nance work. Motion granted. To impose duty to consult on Crown as precondition to any consideration of test for granting interlocutory injunction in cir- cumstance of this case would be tantamount to condoning self- help remedies and would bring administration of justice into disrepute. Strength of plaintiff 's case must be assessed according to standard of strong prima facie case, rather than lower standard of serious issue to be tried. Plain- tiff was grantee of easements over land that comprised main- tenance dig sites, which granted plaintiff right to enter onto land to maintain and repair pipelines at sites in issue, and if defen- dants interfered with plaintiff 's exercise of its rights to maintain and repair pipelines under ease- ments, such interference would constitute trespass and violation of plaintiff 's property rights. Based on admissible evidence, including daily inspection re- ports, plaintiff made out strong prima facie case of trespass by both defendants and interference by them with lawful exercise of rights conferred on plaintiff by easement agreements on affected maintenance dig sites. Work was being done as part of program of preventative maintenance to en- sure safety of existing infrastruc- ture. In addition to harm that might be caused to plaintiff 's own interests, there was public interest in allowing plaintiff to fulfil its rights and duty to main- tain pipelines. Harm plaintiff would suffer from being pre- vented, by defendants' actions, from carrying out its mandated preventative maintenance pro- gram would not be compensable in damages, and plaintiff estab- lished it would suffer irreparable harm. Number of factors strong- ly favoured granting injunction, including safety concerns arising from interference with plaintiff 's maintenance activities, secu- rity concerns respecting control of dig sites, economic harm to plaintiff and its customers, and that injunction sought was very limited. Defendants' claim to relevant interests or rights could be advanced by appropriate par- ties through lawful means, and defendants' resort to self-help should not be tolerated. Balance of convenience favoured grant- ing injunction. Enbridge Pipelines Inc. v. Williams (2017), 2017 Carswel- lOnt 3796, 2017 ONSC 1642, D.A. Broad J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law OFFENCES Driving/care and control with excessive alcohol Trial judge's misapprehension of evidence playing essential part in erroneous reasoning process Accused was charged with driv- ing with over 80 milligrams of al- cohol in 100 millilitres of blood. At trial, police officer testified that after stopping accused, he made approved screening device demand, which accused failed. Officer arrested accused and read Intoxilyzer breath demand. Readings were 158 and 141 mil- ligrams of alcohol in 100 mil- lilitres of blood. Trial was held, combined with voir dire. At trial, officer was asked by Crown counsel why he arrested accused and what he based arrest on. Of- ficer was not able to answer ques- tion because of interjection from trial judge. Officer did not pro- ceed to answer original question. Instead, Crown counsel asked whether there was anything "in addition". It was at that time that officer referred to fail. Trial judge found that only ground that police articulated for read- ing breath demand was fail. Trial judge found that officer did not have reasonable and probable grounds for arrest and breath demand. Trial judge excluded evidence contained in breath certificate on grounds that ac- cused's rights were breached un- der Canadian Charter of Rights and Freedoms. Accused acquit- ted. Crown appealed. Appeal allowed. Trial judge misappre- hended evidence when he found that "only" ground that officer articulated for breath demand was fail Rather, fail was another ground and was "in addition" to any other grounds relied on by officer. There was other evidence before trial judge capable of ex- plaining why officer made breath demand, including speeding, car stopping in centre of road and smell of alcohol on accused's breath. As result of trial judge's misapprehension of evidence, trial judge failed to consider fail result "along with other indicia of impairment" in determin- ing whether requisite objective and subjective components for making demand were present. Trial judge's misapprehension of evidence played essential part in trial judge's reasoning process in concluding that there were Char- ter breaches. New trial ordered. R. v. Vandendriessche (2017), 2017 CarswellOnt 11791, 2017 ONSC 4192, Victor Mitrow J. (Ont. S.C.J.). OFFENCES Sexual interference Accused acquitted of sexual assault as complainant not reliable witness TS was mother of complainant SL. TS met accused in church and they became romantically involved. Shortly after their relationship commenced com- plainant claimed that accused touched her vagina in church basement on several occasions. Complainant was between four and six years old when alleged offences occurred. Police were contacted after relationship be- tween TS and accused ended. Accused was charged with sex- ual interference. Complainant was under 16 years old at time of offence. Accused acquitted. TS was not credible witness. Court had no difficulty with com- plainant's credibility but it had problems with her reliability. Court was not satisfied beyond reasonable doubt that accused ever touched complainant with sexual purpose in mind. Court was also not satisfied beyond reasonable doubt that complain- ant was ever sexually touched by anyone. R. v. W. (B.) (2017), 2017 CarswellOnt 4048, 2017 ONSC 1774, M. Fairburn J. (Ont. S.C.J.).

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