Law Times

Law Times • November 4, 2013 libel against defendants. Plaintiff obtained default judgment against defendant newspaper and action continued against personal defendant. Plaintiff was president of Advisory Council on Democratic and Peaceful Unification in Korea. Plaintiff became involved in altercation with his executive secretary. Number of media outlets broadcast incident, including defendant newspaper. Only one article published by newspaper was written by personal defendant. He relied on information from other publications and did not interview plaintiff or executive secretary. Article was published on February 21, 2005. Plaintiff did not become aware of article until February 2009, and commenced action in March 2009. Thereafter, personal defendant issued correction in newspaper and removed article from internet. Personal defendant never apologized to plaintiff for article. Action allowed. Article was defamatory. It clearly referred to plaintiff and imputed improper and disreputable conduct to him where it did not exist. Personal defendant's conduct was reckless because he largely relied upon article published by other newspapers without doing any of his own investigations. Plaintiff was awarded general damages of $12,000 and punitive damages of $5,000. Plaintiff was also granted permanent injunction restraining personal defendant from directly or indirectly making or publishing any further false, misleading or defamatory statements about plaintiff. Kim v. Dongpo News (Jul. 18, 2013, Ont. S.C.J., T. McEwen J., File No. CV-09-00375111) 230 A.C.W.S. (3d) 911. Employment WRONGFUL DISMISSAL Trial judge's finding of poisoned work environment due to racism could not withstand close scrutiny Appellant appealed trial judge's decision finding that respondent was victim of racism and was constructively dismissed. Respondent worked for appellant for eight years as production supervisor in body shop. Respondent was black man. Respondent was responsible for training group leaders in body shop of assembly plant on new system of policies and guidelines. One group leader refused to be trained by respondent. Based on statement and information provided by another employee, respondent concluded that group leader refused to undergo training with him because group leader was prejudiced against black men. Respondent complained to management personnel. Appellant undertook three separate investigations into respondent's complaint. Appellant's investigators concluded that there was no evidence of rationally motivated conduct by group leader. Respondent took medical leave of absence from work claiming Page 15 CASELAW disability due to discriminatory treatment in workplace based on racism. He never returned to work. Respondent brought action for wrongful dismissal. Trial judge found that respondent was victim of racism and that workplace environment was poisoned due to racism, which eventually resulted in his constructive dismissal. Respondent was awarded damages of $160,000. Appeal allowed. Key findings made by trial judge were unreasonable and unsupportable by evidence. Appellant met high hurdle for appellate reversal of trial judge's impugned finding of racism. There was no direct evidence of racism toward respondent by anyone at plant, including group leader. On evidentiary record, it was unreasonable for trial judge to hold that group leader's absence from training was solely racially based. There was no evidence to support that finding. Single incident of this kind with single employee over course of eightyear working relationship could not objectively ground finding of work environment poisoned by racism. Evidence did not support conclusion that appellant repudiated employment contract with respondent. In circumstances, appellant did not act unreasonably in treating respondent's decision not to return to work as voluntary resignation of employment. Trial judge's key findings of poisoned work environment due to racism, resulting in respondent's constructive dismissal, could not withstand close scrutiny when assessed in context of entire evidentiary record. General Motors of Canada Ltd. v. Johnson (Jul. 31, 2013, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and David Watt J.A., File No. CA C55707) Decision at 230 A.C.W.S. (3d) 733 was reversed. 230 A.C.W.S. (3d) 732. Torts NEGLIGENCE Plaintiff was in place of safety until she attempted to push herself through opening in elevator doorway Plaintiff brought action claiming damages for injuries suffered in attempt to extricate herself from stuck elevator in her condominium apartment building on August 20, 2005. Plaintiff sued building owner and company which was maintenance and service provider for building elevators. Issue of damages had been settled, as had plaintiff 's claim against building owner by way of Agreement. On August 19, 2005, massive rainfall resulted in power shortages. When plaintiff took elevator on following day, elevator took her to lobby floor, but doors would not open. While waiting for help, doors opened shakily leaving small gap. Plaintiff said she turned sideways to push through opening with her arm and shoulder out, when suddenly car door "jumped again", pushing her out onto lobby floor. She suffered fractured shoulder. There was no recorded call to company from building at time plaintiff claimed to have been stuck in elevator although calls had been received for other incidents on same day. Action dismissed. Malfunction of the elevators at building on August 20, 2005 happened because of flooding that occurred. Company responded to all calls at building and took reasonable steps to get elevators operational. When she was stuck in elevator, plaintiff was in place of safety until she attempted to push herself through small opening in elevator doorway. Had she not done so she would not have fallen through door and injured her shoulder. Plaintiff was the author of her own misfortune and company could not be held liable for her damages. Green v. York Region Condominium Corp. No. 834 (Jul. 29, 2013, Ont. S.C.J., A.J. O'Marra J., File No. 07-CV-338348) 230 A.C.W.S. (3d) 913. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused felt compelled to comply with demand for identification for fear of consequences Crown appealed accused's acquittal for two counts of breach of probation which occurred after exclusion of evidence. Accused was one of two passengers in vehicle stopped by R.I.D.E. program. Officer asked passengers for identification. He checked identification through CPIC and found accused was under probation condition not to possess nor consume alcohol. Officer determined accused had been drinking and charged him with breach. Since officer admitted he had no idea of any offence having been committed, trial judge found there were no grounds for detention, and therefore it was "arbitrary". Trial judge found seizure of accused's birth certificate to be warrantless seizure without reasonable cause. Trial judge found search to be in contravention of s. 8 of Charter, and that there were ss. 9 and 10(b) breaches. Trial judge found that officer explained that every person in every car was queried on CPIC which jurisprudence stated was clear Charter breach. Appeal dismissed. Court found no error in finding that officer's request for identification was commencement of detention. It was reasonable to conclude that accused felt compelled to comply with demand for his identification for fear of physical consequences. Trial judge's expressed concern of seriousness of police conduct was to be given great deference. Crown conceded that courts had consistently disapproved of using highway traffic stops for www.lawtimesnews.com general investigative activities. R. v. Dale (Jun. 16, 2013, Ont. S.C.J., Timothy D. Ray J., File No. 12-0383) Decision at 103 W.C.B. (2d) 500 was affirmed. 108 W.C.B. (2d) 613. Evidence HEARSAY Reproduction of statement and video recording eliminated danger of inaccurate recounting Accused appealed his convictions for series of weapons related offences. Accused and his brother were angry at their half brother for not being at hospital when their sister died. Accused's brother phoned half brother to tell him not to join other family members at their mother's to mourn their loss. Half brother ignored warning, and, with his girlfriend, drove to his mother's townhouse to join his brothers and other family members and friends. As he approached his mother's house, half brother called 9-1-1 and reported that accused had gun. When police arrived, they saw brothers arguing in courtyard outside townhouse. Officers also saw friend of accused's brother leave townhouse carrying black duffle bag. Bag seemed to have something long and heavy in it. When friend saw police, he took bag back into townhouse. Officers were invited into townhouse. Officers found black bag on top of washing machine. Inside bag police found sawed-off Winchester shotgun, M-1 Carbine rifle, and high capacity magazine suitable for use in rifle. Accused and man police saw carrying bag were arrested. Man seen carrying bag gave statement Crown wished to introduce. Accused alleged trial judge erroneously wrongly admitted hearsay statement of Crown witness. Trial judge admitted accused's friend's videotaped statement under principled exception to hearsay rule. Necessity was not issue. Friend had recanted when giving evidence. Trial judge was also satisfied, despite absence of oath and warning about consequences of making false statement, that statement satisfied reliability requirement. Appeal dismissed. Out-of-court statement was videotaped in its entirety. Reproduction of statement and video recording eliminated danger of inaccurate recounting. Important factor underlying rule excluding hearsay evidence. Witness was available for cross-examination. Absence of oath and warning not fatal to admissibility of out-of-court statement. In its material features statement was consistent with contents of half brother's 9-1-1 call of which friend could have had no knowledge when he gave his statement. R. v. Adjei (Aug. 12, 2013, Ont. C.A., M. Rosenberg J.A., David Watt J.A., and S.E. Pepall J.A., File No. CA C54638) 108 W.C.B. (2d) 651. Prisons INMATES' RIGHTS Inmate not denied procedural fairness as gist of reasons communicated to him Inmate applied for Habeas Corpus with Certiorari in aid to challenge warden's decision to reclassify inmate's security classification from medium to maximum. Issue was whether disclosures made to inmate by Correctional Services Canada ("CSC") in lead up to hearing were sufficient to inform fair hearing. Inmate was 29 year old first-time offender in Canada, serving nine-year sentence for sexual assault and trafficking in human life. His known American record involved convictions for domestic battery and sexual assault; accused served two and a half years on sexual assault conviction. In sentencing reasons, it was noted that inmate showed limited insight into serious nature of offences for which he was convicted, and minimized crime and his involvement. Inmate was put in involuntary administrative segregation. Official basis for this action was that inmate was suspected of being centrally involved in mercantile tobacco operation within prison and continued association with inmate population would interfere with investigation. He was moved to different penitentiary and at that time his classification did not change. Accused was then placed in segregation because CSC identified two inmates at Institution with whom he was incompatible; his status was then changed. Application dismissed. Stinchcombe principles did not apply in this administrative context because it was not criminal trial and innocence was not at stake. Inmate knew he was not meeting expectations relative to rehabilitation and that would reasonably be expected to impact negatively on security status review. Known ancillary facts were that he was caught with contraband tobacco in his cell. Suspicious money transfers and six years into nine year sentence, he continued to deny seriousness of and his complicity in sentence offences, his insight into psychological pathology that informed his misconduct was viewed by CSC as non-existent and he had declined offerings of counseling that might have ameliorated risk perceptions. If inmate requested access to pertinent portions of intercept transcripts or recordings they would have been produced with necessary protective redactions and he would have been fully informed of factual context for this one aspect of security status change. Inmate was not denied procedural fairness in process that culminated in his security status change: gist of reasons for reclassification was communicated to him. Alzehrani v. Warden of Kingston Penitentiary (Aug. 9, 2013, Ont. S.C.J., Rick Leroy J., File No. Kingston CR-13-135) 108 W.C.B. (2d) 674. LT

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