Law Times

Law Times • march 31, 2014 Page 15 www.lawtimesnews.com ment with society. Agreement was terminated in November 2007, and file was closed. In May 2011, referral was received from mother's family doctor that mother tested positive for methamphetamine following urine screen. Mother arranged for maternal grandparents to care for child and she agreed to six- month period of service. Mater- nal grandparents planned trip to Europe and would not be bring- ing child, so child was proactively apprehended by society to thwart possible return to mother's care. Child was not taken into care, but remained living at grandparents' home in care of maternal uncle for duration of grandparents' trip. Supervision order was obtained placing child in care of maternal grandparents. Mother gave birth to second child in August 2012 and meconium sample tested positive for methamphetamine. Society brought motion for sum- mary judgment. Judge found that child was in need of protection and that it was in best interests of child that maternal grandparents be granted sole custody. Mother appealed. Appeal allowed. Prior to child's apprehension he was not under care and custody of mother, but of maternal grand- parents. Purpose of apprehen- sion was to mitigate possible risk of child returning to mother's care while grandparents were on vacation. Judge made incor- rect assumption that child was in need of protection prior to ap- prehension. Mother did not have charge of child at time of appre- hension and child was not at risk and did not need to be protected from mother. If mother had re- moved child from grandparents' home then there would be poten- tial risk, threat or danger to child. Society's protection application was ill-founded and judge erred in law and fact by not recognizing faulty basis on which protection application was launched. Lack of any basis in fact for apprehen- sion nullified protection finding upon which decision was based. Judge erred in law by admitting and relying on hearsay evidence. Judge erred in law by not recog- nizing that there was no plan of care filed by society. Children's Aid Society of Regional Municipality of Waterloo v. V. (K.) (Dec. 5, 2013, Ont. S.C.J., G.A. Campbell J., File No. FS-479-13) 235 A.C.W.S. (3d) 973. Injunctions INTERLOCUTORY RELIEF Attempt to purchase new residence could not be construed as dissipating assets Parties lived together in separate halves of semi-detached home. Defendant assaulted plaintiff and was criminally charged. De- fendant was not permitted in vi- cinity of plaintiff and could not return to live in home. Defendant listed home for sale. Plaintiff fear- ful defendant was dissipating as- sets obtained Mareva injunction. Court did not know defendant had placed offer to purchase an- other home which could not be completed because of Mareva injunction. Plaintiff sought to keep Mareva injunction in place. Mareva injunction was set aside. Plaintiff did not show defendant was removing assets from ju- risdiction or dissipating assets in manner clearly distinct from defendant's usual course of liv- ing. Defendant's explanation for listing home for sale was logical. Defendant's attempt to purchase new residence to live in could not be construed as dissipating assets. Baxter v. Kra (Aug. 21, 2013, Ont. S.C.J., J.W. Sloan J., File No. C-637-13) 235 A.C.W.S. (3d) 1079. Real Property EASEMENTS Construction of addition did not amount to violation of property rights of applicants Application concerned dispute about right-of-way in modern residential row house develop- ment. Respondents were owners of land that was subject to right- of-way. Applicants were own- ers of adjacent properties who enjoyed benefit of right-of-way. Purpose of right-of-way was to provide applicants with access to their garages located to rear of their houses. Complaint ad- vanced in litigation was that re- spondents were constructing or had constructed addition to their house that occupied part of land that was subject to right-of-way. Applicants asserted that conduct of respondents was violation of their rights and sought declara- tion to that effect and ancillary relief. Application dismissed. Purpose of right-of-way granted was not to enable applicants to have access to or make use of all portions of respondent's prop- erty. Only restriction on respon- dents was that they had to permit applicants to cross over, along and upon property for purpose of vehicular ingress and egress to remainder of laneway. Evidence established that applicants con- tinued to have reasonable access. It followed that construction of addition and creation of en- croachments by respondents did not amount to violation of prop- erty rights of applicants. Weidelich v. De Koning (Dec. 5, 2013, Ont. S.C.J., Stinson J., File No. CV-13-00479609-0000) 235 A.C.W.S. (3d) 1122. Torts INVASION OF PRIVACY All actions complained of were done in context of litigation commenced by plaintiff Plaintiff 's claim for damages for personal injuries suffered in mo- tor vehicle accident was dismissed in March 2011, aer trial judge found she did not meet threshold of establishing permanent, seri- ous impairment. Plaintiff 's appeal was dismissed. On December 18, 2012, plaintiff commenced ac- tion for tort of intrusion upon seclusion and breach of privacy as against lawyers for defendants in other case, alleging that they were negligent and engaged in misconduct by marshalling cer- tain medical and other evidence used in defence. Plaintiff 's claim was based on allegation that de- fendants sent her personal medi- cal records to defence doctors and experts without her consent. Defendants brought motion for summary judgment to dismiss action against them. Motion granted. ere was no genuine issue for trial. To establish tort of intrusion upon seclusion, defen- dants must have invaded plain- tiff 's private affairs or concerns without lawful justification. All actions complained of were done by counsel for defendants within context of litigation commenced by plaintiff, were done pursuant to Rules of Civil Procedure (Ont.), and were required for purposes of defending action and issues raised by plaintiff in her statement of claim. Medical evidence provided to defence experts was medical evidence provided by plaintiff to defendants' counsel within con- text of examinations for discovery and as required by Rules. ere was no cause of action established by plaintiff. Baines v. Burns (Nov. 27, 2013, Ont. S.C.J., Carole J. Brown J., File No. CV-12-470359) 235 A.C.W.S. (3d) 1132 ONTARIO CRIMINAL DECISIONS Appeal GENERAL Trial judge's observation that witnesses "looked at" accused could not have evidentiary value Appeal from conviction. Trial judge's observation that witnesses "looked at" accused in course of their evidence could not, stand- ing alone, have any evidentiary value. Mere act of looking at someone, particularly accused in courtroom, too equivocal to warrant finding of fact based on it. Identity was clearly in is- sue during trial and Crown did not ask witnesses to provide any "in dock" identification. Further, Crown counsel at trial conceded there was no evidence of identifi- cation. Circumstantial evidence did not provide basis upon which trier of fact could reasonably conclude that accused was per- son who attacked victim. Appeal allowed, conviction quashed and acquittal entered. R. v. Watt (Jan. 10, 2014, Ont. C.A., Doherty J.A., Strathy J.A., and Pardu J.A., File No. CA C55666) 111 W.C.B. (2d) 141. Charter of Rights RIGHT TO FAIR TRIAL Police used force only when accused fled from them Trial of accused on charges of breaking and entering, posses- sion of property obtained by crime, possession of burglar's tools, mischief and failing to comply with probation. Accused was inside of house without per- mission. As he le house by rear sliding door in dark police offi- cer in neighbouring yard yelled at him to stop as he was under arrest. Accused ran away and he was tackled to ground and was handcuffed. He claimed that aer he was tackled he was immedi- ately compliant but all of his in- juries were caused by police aer he was tackled. Accused sought stay of proceedings, based on al- leged violations of ss. 7 and 12 of Canadian Charter of Rights and Freedoms. Alternatively, if stay was not granted, he asked that sentence that would otherwise be warranted should be reduced to reflect use of force against him. Application dismissed. Officers, who were credible, were faced with dynamic situation in which they dealt with accused who ac- tively resisted arrest and who was potentially armed. Accused was large and strong man and it took two officers to subdue him. Officers were justified in using force to arrest accused and force that was used was not excessive. Aer accused was arrested of- ficers responded to his needs. ere was no breach of accused's Charter rights under ss. 7 and 12 that jeopardized perception of trial fairness or that would bring integrity of law enforcement into disrepute. Stay was not appropri- ate. Sentence would not be re- duced because police used force only when accused fled from them and actively resisted arrest. R. v. Douglas (Jan. 15, 2014, Ont. S.C.J., Dunnet J., File No. CR-13- 30000 189-0000) 111 W.C.B. (2d) 186. Extraordinary Remedies HABEAS CORPUS Refusal to reclassify applicant was not deprivation of liberty Application by prison inmate for granting writ of habeas corpus, with certiorari in aid, directing that he be brought before court so that respondent could certify right to detain him in medium security facility. Applicant wanted to be moved to minimum security fa- cility. He was serving six year and nine month sentence for traffick- ing in cocaine. His conviction was result of undercover operation that targeted illegal activities of Hells Angels Motorcycle Club, of which he was full patch member. Rating from his annual security classification assessment was de- termined to be medium security. Applicant objected to significance attached to incidents that affected his rating and he also objected to fact that his continued association with Club members was factor in assessing his classification. Ap- plication dismissed. ere was no deprivation of his liberty because his status remained unchanged. Furthermore, decisions made by Correctional Services Canada in this case, and criteria upon which they were based, were only chal- lengeable in Federal Court. Appli- cant claimed that requirement not to associate with Club members violated his right to freedom of as- sociation under Canadian Char- ter of Rights and Freedoms but this was irrelevant to his request for habeas corpus, which was directed at liberty interests only. Refusal to reclassify applicant to support transfer to minimum se- curity facility was not deprivation of liberty. Any deprivation of lib- erty that existed was lawful and it was reasonable based on facts of this case. Classification decision was not arbitrary and it was based on cogent evidence that applicant continued to be moderate threat to public safety because he made little change in attitude or conduct concerning his support for Club. Robinson v. Canada (Attorney General) (Dec. 31, 2013, Ont. S.C.J., Healey J., File No. Brace- bridge CR-13-33-MO) 111 W.C.B. (2d) 197. Practice, Process, and Procedure INFORMATION Justice of peace exceeded his jurisdiction by refusing to allow process to issue Application to review decision of justice of peace not to issue pro- cess on private information. Al- legation was that landlord forced her way into accused's apartment as part of ongoing dispute. Police were called and accused arrested on allegations that he had assault- ed landlord. Accused released by police without any charges. Ac- cused sought to have police charge landlord with forcible entry under Criminal Code, but police de- clined. Accused had also sought to institute offence under Trespass to Property Act (Ont.), and then unsuccessfully tried to lay charge of break and enter. Accused then sought to bring his own charges against landlord for forcible entry. Crown conceded justice of peace exceeded his jurisdiction by re- fusing to allow process to issue. ere was evidence before justice that provided prima facie proof of each of elements of offence of forcible entry. Crown conceded that fact before justice. Despite that concession, justice declined to allow information to proceed. Application allowed. Matter re- mitted back to court for process to issue on offence of forcible entry. Given mandatory language of s. 507.1(2) of Criminal Code, once there was some evidence on each of elements of offence, justice of peace was required to issue pro- cess. He exceeded his jurisdiction by failing to do so. ere was no finding made by justice that ac- cused's allegations were frivolous, vexatious or abuse of process. It was not open to justice of peace to decline to issue process because he felt that there was some alterna- tive or preferable way for accused to pursue complaint. Fact that ac- cused could have taken different path to achieve vindication of his complaint did not disentitle him to properly conducted pre-inqui- ry hearing. at criminal offence will also be found as civil claim does not make criminal prosecu- tion inappropriate. If Crown be- lieved it was not in public interest for private prosecution to proceed, Crown had authority to terminate prosecution. R. v. Hu (Jan. 7, 2014, Ont. S.C.J., Nordheimer J., File No. Toronto M 108/13) 111 W.C.B. (2d) 205. LT CASELAW

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