Law Times

www.lawtimesnews.com Page 14 January14, 2008 / Law Times SUPREME COURT OF CANADA appeal FReSH eVidenCe Appeal from conviction allowed based on fresh evidence discrediting evidence of Crown expert Accused M and A convicted of offences relating to death of son. M found guilty of second degree murder, aggravated assault, and assault causing bodily harm. A found guilty of criminal negligence causing death and failure to provide necessaries of life. Convictions affirmed by Ontario Court of Appeal. Accused appealed based on fresh evidence. Appeals allowed and new trial ordered. Fresh evidence discredited that of S, expert called by Crown, and rendered unreliable evidence of second Crown witness. Substitution of manslaughter for murder inappropriate as S's evidence may have influenced jury's conclusion on both causation and intent elements. Acquittals on murder and criminal negligence counts also inappropriate as properly instructed jury, acting reasonably, could find guilt on remaining evidence. Verdicts on any of charges would not necessarily have been same but for impugned evidence. R. v. Trotta (Nov. 8, 2007, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 30987) Appeal from 190 C.C.C. (3d) 199, 65 W.C.B. (2d) 333 allowed. order no. 007/316/001 (13 pp.). FEDERAL COURT Human Rights Legislation diSCRimination Female members of armed forces could not be given benefit of in-vitro fertilization without giving male members benefit of intra-cytoplasmic sperm injection Respondent member of armed forces. Both in-vitro fertilization and male fertility treatment intra-cytoplasmic sperm injection needed to improve chances to conceive. Members of armed forces excluded from participation in provincial health schemes. Canadian forces policy to cover procedures covered by provincial health care. Forces covered female in-vitro fertilization after 1997 to follow Ontario. Ontario did not cover male fertility treatment. Health care provided by forces did not extend to family members. Respondent grieved refusal to fund his intra-cytoplasmic sperm injection and wife's in-vitro fertilization. Grievance was denied. Respondent filed complaint with human rights commission. Human Rights Tribunal found complainant established prima facie case base on comparator group of female members. No undue hardship based on cost analysis. Application for judicial review of decision. Applicant agreed funding not undue hardship. Applicant argued health provision not employment benefit. Applicant argued tribunal erred in characterizing benefit as extending to couple for conception rather than individual for fertility problem. Applicant argued tribunal erred in comparing complainant to female members rather than members seeking fertility procedures for spouse. Application allowed in part. Health care services were benefits in course of employment. Applicant made it condition of respondent's employment that he be deprived of access to provincial health care plans. Characterization of benefits matter of law. Tribunal not correct in characterizing fertility treatment as offering couple opportunity to conceive. Focus of plan on individual member. Comparator group issue of law. Tribunal correct in comparing respondent to female members of armed forces. Respondent was discriminated against. Applicant cannot give female members benefit of in-vitro fertilization without giving male members benefit of intra-cytoplasmic sperm injection. Scope of discrimination narrower than found by tribunal. Female members need not be part of couple to receive treatment. Costs related to sperm in relation to female member's conception not covered. Applicant should only cover cost of intra-cytoplasmic sperm injection not in-vitro fertilization portion. Decision set aside and referred back for redetermination. Canada (Attorney General) v. Buffett (Oct. 16, 2007, F.C., Harrington J., File No. T-1818-06) order no. 007/297/046 (23 pp.). ONTARIO CIVIL CASES assessment aSSeSSaBiLitY Definition of "eligible property" in s. 447.70 of Municipal Act, 2001 (Ont.). operated retrospectively and not retroactively Applicant sought order declaring lands were not "eligible property" within meaning of s. 447.70 of Municipal Act, 2001 (Ont.). Application was dismissed. Definition of eligible property operated retrospectively and not retroactively. There was no interference with applicant's vested rights. There was no presumption against applying definition to severance that occurred in 2000. Definition applied to land that was subdivided or severed regardless of whether either of those two events took place prior to date it came into force, which was January 1, 2001. Change in status had to occur before section applied. Meaning of eligible property was not ambiguous and there was no reasonable doubt raised as to its meaning. Definition of eligible property included property that was severed in 2000. 1392290 Ontario Ltd. v. Ajax (Town) (Nov. 6, 2007, ont.S.C.J., Pattillo J., File No. 06-CV-324980 PD1) order no. 007/311/048 (8 pp.). Civil Procedure CoStS Defendant awarded costs on substantial indemnity basis after offer to settle Defendant moved for substantial indemnity costs after offer to settle. Defendant offered dismissal of action without costs. Plaintiff unsuccessful. Defendant argued plaintiff achieved result as favourable or less favourable than defendant's offer. Plaintiff argued excessive costs given nature of case. Plaintiff argued his offer to settle at $19,500 plus costs should indicate modest sum involved. Defendant awarded costs on substantial indemnity after offer. Court can exercise discretion to award substantial indemnity costs where plaintiff did not recover judgment of any value after trial. Case of above- average complexity. Amount in dispute $100,000 damages agreed to not $19,500 offer to settle. Where plaintiff proceeds with lengthy complex proceeding to recover modest amount and defendant required to properly defend case it is reasonably foreseeable to plaintiff to expect to pay substantial amount of costs. Defendant entitled to take reasonable steps to defend claim and introduce appropriate expert evidence. Dunstan v. Flying J Travel Plaza (Oct. 24, 2007, ont.S.C.J., R.J. Smith J., File No. 15677/04) order no. 007/303/078 (10 pp.). Courts aBuSe oF PRoCeSS Abuse of process to re-litigate determination that assaults did not occur Criminal charges brought against individual defendant, nurse at defendant hospital, for alleged sexual assault of plaintiff patient. Trial judge found assaults did not occur. Statement of Claim based on understanding assaults did take place. Hospital's application to have action dismissed as abuse of process granted. Abuse of process to allow re-litigation of determination that assaults did not occur. Given depth of trial judge's enquiry and unambiguous nature of conclusion plaintiff could not escape "glaring reality" she was attempting to re-litigate question of whether assaults occurred. Polgrain Estate v. Toronto East General Hospital (Oct. 3, 2007, ont.S.C.J., Lederer J., File No. 01-CV-214871CM4) order no. 007/283/102 (18 pp.). Family Law CHiLd WeLFaRe Action arising from child protection proceedings struck out as abuse of process Plaintiff commenced action in negligence and defamation against child's school and social workers. Plaintiff alleged child protection investigation high-handed and improperly conducted. Plaintiff alleged school and social services agency owed duty to her to conduct investigation thoroughly and not allow their employees to provide false or incomplete information. Defendants moved to strike statement of claim on basis that it was frivolous and abuse of process. Defendants alleged plaintiff was trying to re-open child protection proceedings. Motion granted. Issues should have been raised during child protection proceedings. Plaintiff notified of child protection proceedings and chose not to attend. Neither agency owed duty of care to plaintiff. Imposition of duty of care would potentially create conflict between service Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. COURT DECISIONS When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN ST. JOHN'S HALIFAX MONCTON SAINT JOHN FREDERICTON Untitled-10 1 11/6/07 3:56:47 PM LT-Jan 14 08.indd 14 1/10/08 8:07:17 PM

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