Law Times

LAW TIMES • MARCH 10, 2014 PAGE 19 www.lawtimesnews.com payments due and owing to him from date of suspension of May 11, 2011. Johnson v. Canada (Commission- er of Corrections) (Dec. 3, 2013, F.C., Michael D. Manson J., File No. T-2136-12) 110 W.C.B. (2d) 647. Natural Resources FISHERIES Fact regulations might have negative consequences did not render them invalid Mining company sought approv- al for nickel processing plant. Tailings from plant were to be contained in tailings impound- ment area ("TIA"). Schedule 2 of Metal Mining Effl uent Regula- tions (Can.), made under Fisher- ies Act (Can.), listed 19 approved TIA's. Pond in vicinity of plant was listed as approved TIA under Schedule 2 of Regulations. Public interest group brought applica- tion for declaration that ss. 5 and 27.1 and Schedule 2 of Regula- tions were ultra vires regulation- making powers granted to Gov- ernor in Council pursuant to Act. Application dismissed. Public in- terest group was mistaken when asserting that conservation was paramount purpose of Act. Act contained no "purpose" section. Sections 34(2), 36(5) and 38(9) of Act authorized enactment of regulations. Most relevant provi- sion was s. 36(5) of Act, read in conjunction with s. 36(3) and (4) (b) of Act. ese provisions were suffi ciently broad to authorize enactment of challenged Regu- lations. Sections 5 and 27.1 and Schedule 2 of Regulations pro- vided what was authorized by s. 36(5) of Act. Fact that Regula- tions enacted pursuant to Act might have negative environ- mental consequences did not, per se, render those Regulations invalid. Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General) (Oct. 31, 2013, F.C., E. Heneghan J., File No. T-888-10) 235 A.C.W.S. (3d) 245. ONTARIO CIVIL DECISIONS Arbitration STAY OF PROCEEDINGS Not appropriate to deny stay simply because of wrong ful dismissal claim Defendant retained plaintiff for sales and marketing services as independent contractor, but plaintiff eventually purchased shares and became employee. Plaintiff 's employment was ter- minated, and plaintiff alleged defendant misled him about nature of employment and value of shares. Plaintiff commenced action seeking to have purchase transactions and shareholders agreement set aside and declared void, and wrongful dismissal damages. Shareholders agree- ment contained clause stating any dispute about interpretation or implementation of provisions was to go to arbitration. Motion by defendant to stay all causes of action other than wrong- ful dismissal on basis they fell under agreement to arbitrate. Motion allowed. Dispute not clearly outside scope of arbitra- tion agreement. Claims for dec- laration of value of shares, and order requiring defendants to purchase or redeem shares held by plaintiff would require inter- pretation of provisions of share- holders agreement, and plaintiff also sought to set agreement aside. Not appropriate to deny stay simply because of wrongful dismissal claim. While wrongful dismissal claim involved simi- lar facts, it was diff erent cause of action in context of distinct contractual agreement only between parties. Action, other than wrongful dismissal claim, stayed pending determination by arbitrator of whether matters were subject to arbitration. Moff att v. Maher (Oct. 21, 2013, Ont. S.C.J., Chiappetta J., File No. 13-CV-478808) 235 A.C.W.S. (3d) 19. Civil Procedure GENERAL No contractual duty to edit broadcast in favourable manner Plaintiff s made business pro- posal on reality show "Dragon's Den". Plaintiff s alleged that ver- sion of proposal that was broad- cast had been edited in such way as to completely misrepresent merits of business plan. Plaintiff s alleged that defendant's conduct amounted to gross and reck- less negligence, intentional mis- conduct, malice and bad faith. Plaintiff s brought action based on breach of contract, defama- tion, negligence and injurious falsehood. Defendant brought motion for summary judgment. Motion judge concluded that comprehensive release amount- ed to express and unambiguous release of all claims advanced in statement of claim and that there was no reason not to give eff ect to release. Plaintiff s appealed. Appeal dismissed. Motion judge was correct to conclude that no trial was needed to assess eff ect of release, as there were no mate- rial facts in dispute. Release gave defendant sole discretion to edit recording as it saw fi t and to por- tray factual, fi ctional or defama- tory image of plaintiff s. ere was no stand-alone duty of good faith independent from terms expressed in contract. In circum- stances there could be no con- tractual duty to edit broadcast in favourable manner. Misconduct complained of was not extrane- ous to contract or outside scope of release and exclusion clause but it fell squarely within terms of release. Giving eff ect to consent and release did not defeat objec- tives of agreement between par- ties. MHR Board Game Design Inc. v. Canadian Broadcasting Corp. (Dec. 3, 2013, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and G. Pardu J.A., File No. CA C57441) Decision at 229 A.C.W.S. (3d) 994 was affi rmed. 235 A.C.W.S. (3d) 83. Evidence ADMISSIBILIT Y To permit photographs to be placed before jury would encourage jury to speculate Plaintiff sustained serious inju- ries when he was bitten by police dog while being apprehended for alleged crime. Plaintiff com- menced action for damages based on defendants' negligence. Parties settled issue of quantum of damages and only liability was at issue. Plaintiff 's motion to admit photographs and medical records and reports was denied on basis that information had no probative value to remain- ing issue of whether police acted reasonably and in accordance with established practices and procedures. Plaintiff sought to admit photographs taken a er he arrived at hospital and operative notes and discharge summary of surgeon. Application dismissed. While photographs could be rel- evant to issue of whether exces- sive force was used, they were not admitted into evidence. Any inferences jury would be able to derive from review of pho- tographs would require expert evidence. To permit photographs to be placed before jury without supporting evidence from expert would be risky and would en- courage jury to speculate. Notes and records of surgeon should not be admitted because in her description of bites and of inci- dent surgeon relied almost en- tirely on hearsay. Balance of notes were not relevant to liability issue. Landry v. Rains (Nov. 18, 2013, Ont. S.C.J., E.J. Koke J., File No. 25086/10) Additional reasons to 234 A.C.W.S. (3d) 122. 235 A.C.W.S. (3d) 120. ONTARIO CRIMINAL DECISIONS Abduction IN CONTRAVENTION OF CUSTODY ORDER Indictment did not charge accused with detaining or harbouring son Appeal by accused from con- viction for abduction of his son in contravention of custody order. Son was born on May 15, 1990. Indictment charged that between April 30 and July 1, 1995 accused took away his son in contravention of cus- tody order, with intent to de- prive son's mother of possession of her son. Custody order was made by provincial court judge on May 11, 1995 and it gave mother interim custody. Some- time between December 1994 and May 1995 accused sent son to Iran, where he remained for 12 years. Accused claimed he sent son in December 1994 and mother consented since she co-signed son's passport appli- cation. Crown claimed that ac- cused was guilty either because he sent son in May 1995, shortly before or a er custody order was made; or he failed to return son once order was made. Accused's defence that he had consent had air of reality to it and trial judge properly instructed jury about it. However, he also instructed jury that it could convict ac- cused either of two bases ad- vanced by Crown. ese bases were that he arranged to send son to Iran in contravention of custody order, or that he failed to return son to mother in com- pliance with court order. Appeal allowed. Conviction set aside and new trial was ordered. Judge instructed jury that it could convict on second basis, which was not particularized in indict- ment, and that basis should not have been le with jury. Indict- ment charged accused only with taking son away and not with detaining or harbouring him. Court had jurisdiction to amend indictment but it would not do so because amendment would prejudice accused because it would require accused to meet evidence not presented at trial. R. v. Sadeghi-Jebelli (Dec. 12, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C55732) 110 W.C.B. (2d) 657. Courts STAY OF PROCEEDINGS Courts could not condone deliber- ate use of violence and threats as investigative technique Accused applying for stay of robbery and forcible confi ne- ment convictions as result of police brutality. Uncontested evidence of accused was that po- lice repeatedly and severely beat him to obtain statement follow- ing arrest for off ences. Crown having stayed charges against co-accused as similar beatings resulted in serious permanent injury. Trial judge holding po- lice conduct egregious but stay not warranted as no impact on trial fairness and no permanent injuries sustained by accused. Accused's appeal allowed and stay of convictions entered. Trial judge erred by failing to analyze residual category of impact of systemic ramifi cations and ef- fect of police misconduct on re- pute of administration of justice. Courts could not condone de- liberate, systemic use of violence and threats as investigative tech- nique. Fact that police off ered no response to uncontested evidence and no actions taken to bring offi cers to account made need for court to stay convic- tions more compelling. State actors had engaged in serious criminal conduct with appar- ently no accountability. R. v. Singh (Dec. 12, 2013, Ont. C.A., Doherty J.A., Blair J.A., and Watt J.A., File No. CA C55486) 110 W.C.B. (2d) 695. Motor Vehicles DANGEROUS DRIVING Trial judge failed to say what he found other than conclusory statements Accused appealed his convic- tions for dangerous driving (he was also charged with failure to remain at scene of accident). Accused was driving home af- ter visiting friend when his car struck median and two signs in construction area around inter- section, went through red light and continued on. ere was confl icting evidence whether ac- cused went through two further red lights. Accused drove home and was later arrested for dan- gerous operation and failing to remain at scene of accident a er offi cer went to his home and ac- cused took him to his damaged car. Offi cer witness was deal- ing with another investigation when he heard bang and saw accused's car jump median and run red light before he contacted dispatch. Accused testifi ed and admitted that because of his work schedule he knew he was exhausted when he was driv- ing but believed he was alright to drive. In cross-examination, accused admitted that he was generally very sleep-deprived and that weekend he had not slept well so he was extremely exhausted, having had had less than 24 hours sleep in previous seven days. Appeal allowed; new trial ordered. Court persuaded accused's trial evidence aff orded defence. Accused testifi ed that while he was exhausted he felt he was alright to drive, incident occurred on Sunday when he had more sleep than he nor- mally had, he only lost focus once. If trial judge accepted or had reasonable doubt about his account he could have been ac- quitted. Trial judge never said accused was guilty on his own evidence, nor did he ever say he rejected accused's evidence. While it was open to trial judge to infer mens rea in order to do so, he was required to make fi ndings of fact regarding driv- ing and explain why fi ndings were made. Trial judge failed to say what he found other than conclusory statements. Finding of fact that accused ran three red lights was fatal to defence advanced at trial yet there was no explanation why trial judge accepted one civilian witness's evidence over that of second ci- vilian witness who testifi ed sec- ond and third lights were green for accused. Reasons in relation to mens rea issue precluded ef- fective appellate review. Assum- ing for sake of this argument that trial judge did not reject accused's evidence, trial judge misapprehended his testimony, whereas if trial judge rejected accused's evidence and reached those conclusions, he failed to explain why he reached that conclusion. If trial judge re- jected accused's testimony, he erred in relying on "evidence" (accused's purported statement to police) that was never intro- duced or admitted. R. v. Akuamoah-Boateng (Dec. 4, 2013, Ont. S.C.J., Durno J., File No. CR-12-2123-00) 110 W.C.B. (2d) 736. LT CASELAW

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