Law Times

Law Times • sepTember 22, 2014 Page 15 www.lawtimesnews.com must show that defendant com- mitted actionable wrong inde- pendent of underlying breach of contract claim. Trial judge erred by instructing jury that action- able wrong was manager's inten- tional inf liction of mental suffer- ing on respondent, failing to tie independent actionable wrong to Wal-Mart's own conduct but error had no effect. Wal-Mart's breach of good faith was action- able wrong that supported puni- tive damages. High aggravated damages award sent significant denunciatory and punitive mes- sage and Wal-Mart's conduct, while sufficiently reprehensible to warrant punitive damages, fell short of misconduct required to attract high punitive damages. Punitive damages of $100,000 sufficient to punish Wal-Mart and denounce and deter its con- duct. Boucher v. Wal-Mart Canada Corp. (May. 22, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., Laskin J.A., and Tulloch J.A., File No. CA C56243, C56262) 240 A.C.W.S. (3d) 389. Family Law CHILD WELFARE Best interests of children would be met by refusing aunt's adoption plan Three children had been with foster parents for about three and one-half years. Two adoption plans were submitted to society. Foster parents presented one adoption plan, which society ap- proved. Paternal aunt who resid- ed in Manitoba also filed adop- tion plan, which society refused. Children had no relationship with aunt or her family. Board overturned society's decision refusing aunt's adoption applica- tion and ordered that children be placed for adoption with aunt and family in Manitoba, largely to preserve their native cultural identity. Union applied for judi- cial review. Application granted. Standard of review was reason- ableness. Board made palpable and overriding error in finding that children's bond to foster par- ents was uncertain. Board deter- mined best interests of children by deciding which family could best nurture and maintain chil- dren's native heritage and cul- ture but that was only one factor to be considered. Board placed unreasonable amount of weight on that factor. Board's decision placing children for adoption with aunt and overturning soci- ety's decision was unreasonable and board made palpable and overriding errors of fact. Foster parents could meet children's physical, mental and emotional needs and were able to provide appropriate care and treatment for those needs. Children had dramatically improved since be- ing placed with foster parents. There were concerns about ade- quacy of aunt's physical space for children. There were other chil- dren living in aunt's home and one child had mental disabilities and there was risk of inappro- priate sexual behaviour. Plac- ing children with foster parents would allow them to develop in positive manner in secure place and maintain continuity of rela- tionships. Board ignored strong wishes of two older children who wanted to live with foster par- ents. Importance of continuity and stability and negative effect if children were disrupted and moved from present home to live with aunt they did not know did not justify maintaining blood relationship. Board's decision that best interests of children fa- voured their placement for adop- tion with aunt's family in Mani- toba, with whom children had no relationship, was not within range of possible acceptable out- comes that were defensible in respect to facts and law. Evidence before board was overwhelm- ing that best interests of children would be met by placing them for adoption with foster parents and by refusing aunt's adoption plan. Children's native ancestry, cultural identity and traditions could be adequately preserved by teacher who was prepared to assist foster parents to ensure that children's native culture and heritage was maintained. Children's Aid Society of the Unit- ed Counties of Stormont, Dundas and Glengarry v. J. (A.) (May. 5, 2014, Ont. S.C.J., Robert J. Smith J., File No. Ottawa 13DC1979) 240 A.C.W.S. (3d) 398. Injunctions BREACH OF STATUTE Zoning by-law did not infringe respondent's freedom of religion Respondent had been operating men's shelter pursuant to tempo- rary permissions from city since November 2006. Respondent claimed it invested over $100,000 to comply with various require- ments to bring shelter up to ap- plicable standards. Respondent submitted re-zoning application to permit its permanent use of building as homeless shelter. Council denied application. City advised respondent that shelter was not permitted use under zoning by-law and that it was op- erating shelter in contravention of zoning by-law. Respondent continued to operate homeless shelter. City applied for injunc- tion to prohibit respondent from continuing to operate men's shelter, contrary to city's zon- ing by-law. Application granted. Respondent was operating its shelter in contravention of zon- ing by-law. Homeless shelter did not conform to permitted use regulations. It was not church and was not included as church sponsored community activ- ity. Use of property as homeless shelter did not fall within acces- sory uses permitted in by-law. Shelter was not incidental and exclusively devoted to main use of building, that of church. Use of church's facility basement as homeless shelter was always in contravention of clear intention and meaning of zoning by-law. City did not entice respondent to apply for temporary zoning with false promises. City had not acted in unfair manner toward respondent. Zoning by-law did not infringe respondent's free- dom of religion guaranteed by s. 2(a) of Canadian Charter of Rights and Freedoms. To allow organization to operate outside properly enacted legislation and by-laws in name of doing good works would render legislation virtually unenforceable. Any in- terference with respondent's be- liefs was trivial. City had not vio- lated Charter protected right of congregation. City was entitled to permanent injunction prohib- iting respondent from operating homeless shelter on property. Sarnia (City) v. River City Vine- yard Christian Fellowship of Sar- nia (Trustees of) (Mar. 13, 2014, Ont. S.C.J., Thomas J. Carey J., File No. Sarnia 6946/13) 240 A.C.W.S. (3d) 443. Limitations TORT Plaintiff ought to have known she had serious and permanent impairment of ability to function Plaintiff was passenger in motor vehicle that was involved in ac- cident in July 2002. In May 2011, plaintiff brought action for dam- ages for personal injuries suffered in accident. Defendants brought motion for summary judgment to dismiss claim on basis that action was barred by expiration of two-year limitation period in Limitations Act, 2002 (Ont.). Motion judge found that reason- able person would have made necessary medical investigations before November 2009, and de- termined serious and permanent nature of back injury. Motions were allowed and action was dis- missed. Plaintiff appealed. Ap- peal dismissed. It was open to motion judge to find that plain- tiff ought to have known well before May 2009 that because of her back injuries, she had seri- ous and permanent impairment of ability to function on day-to- day basis. Motion judge did not make palpable and overriding error and there was no basis for appellate intervention. Plaintiff did not adduce evidence that her particular characteristics and circumstances were such that, even if hypothetical reasonable person should have been aware of nature of injury, she could not have discovered her claim prior to November 2009. Yelda v. Vu (May 5, 2014, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and C.W. Hourigan J.A., File No. CA C57665) Leave to appeal from 232 A.C.W.S. (3d) 602 was refused. Decision at 231 A.C.W.S. (3d) 352 was affirmed. 240 A.C.W.S. (3d) 465. ONTARIO CRIMINAL DECISIONS Charter of Rights FREEDOM OF EXPRESSION Purpose of activity in question was not simply to communicate political idea or voice protest Accused individuals appealed conviction for attempting to commit mischief. Accused indi- viduals were engaged in series of demonstrations and attempted to block cattle trucks from re- moving herd of cattle from in- stitution after cancellation of prison farm program. Trial judge found that while demonstration was peaceful and was clearly political, objective was not sim- ply to express displeasure but to stop removal of cattle, which in- stitution was legally entitled to do. Accused individuals argued that trial judge erred in finding that their actions constituted at- tempted mischief and erred in finding that it was not within "limits of tolerance in democrat- ic society", such that it did not constitute criminal wrongdoing. Accused individuals argued that they were engaged in peaceful expression of protest and that their conduct was protected pursuant to s. 2(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Trial judge's decision was supported given findings of fact. Accused indi- viduals' conduct was not Char- ter-protected. Purpose of activ- ity in question was not simply to communicate political idea or to voice protest, but to halt re- moval of cattle. Evidence before trial judge was sufficient to allow him to conclude that conduct of accused individuals crossed line and constituted criminal wrong- doing. Trial judge was entitled to conclude that conduct of accused individuals was to block cattle trucks and stop closure of prison farm, as opposed to expressing idea. Trial judge did not directly address s. 2(b) Charter argu- ment largely because accused individuals at trial argued de mi- nimis and necessity. Full reading of trial judge's decision indicated that he did turn his mind to con- stitutional right of freedom of expression pursuant to s. 2(b) of Charter, and that he made spe- cific findings of fact sufficient to conclude that actions of accused individuals were not protected by s. 2(b) of Charter. Trial judge's decision was correct and sup- ported by evidence. R. v. McCann (May. 13, 2014, Ont. S.C.J., John M. Johnston J., File No. CR-12-15, 12-153, 12- 152) 113 W.C.B. (2d) 345. Evidence CREDIBILITY Nothing to suggest uneven scrutiny of evidence Accused appealed conviction for several offences, including possession of loaded prohibited weapon. Accused argued that trial judge failed to consider third branch of test in R. v. W.D., reversed burden of proof, and ex- posed defence evidence to higher degree of scrutiny than Crown's evidence. Appeal dismissed. Nothing in trial judge's reasons supported accused's arguments. Trial judge addressed evidence by reference to several specific factual issues that arose in evi- dence. Trial judge thoroughly reviewed evidence, clearly appre- ciated where defence and Crown evidence conf licted, and gave various reasons for accepting Crown evidence in relation to those factual issues. Trial judge considered inconsistencies in evidence of various police of- ficers who described melee that occurred, but explained in de- tail why those inconsistencies did not undermine credibility of witnesses. There was nothing to suggest uneven scrutiny of evi- dence. Several parts of accused's evidence were, on their face, in- credible, and it hardly took any unwarranted degree of scrutiny to reject that evidence. R. v. Francois (Mar. 27, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55431) 113 W.C.B. (2d) 326 Trial PLEAS Court satisfied accused did not enter plea voluntarily Accused applied to strike guilty pleas to trafficking in cocaine and assault. On date of trial, counsel negotiated potential resolution of case in form of proposed joint submission as to sentence. Matter was adjourned until next day so that accused could consider his position. Fol- lowing day, accused's counsel stated that accused wished to accept proposed resolution and plead guilty to offences. Court conducted plea comprehension hearing and accused's counsel in- dicated that facts in agreed state- ment of facts were substantially correct. Accused indicated that he never told his counsel that he was guilty of charges alleged, and that he wanted matter to proceed to trial. Accused indicated that he was told by his counsel that he had little likelihood of success- fully defending charges and that very good deal had been worked out for him. Accused indicated that he simply answered in affir- mative during plea comprehen- sion hearing based on instruc- tions from his counsel. Accused's counsel indicated that accused had maintained that he was not guilty of offences but agreed to resolution. Accused's counsel confirmed that he told accused to answer in affirmative during plea comprehension hearing or guilty plea might not be accepted. Application allowed, pleas struck. Court accepted that counsel nev- er conducted plea comprehen- sion review with accused prior to guilty plea. Accused never admitted that he committed of- fences, and at no time did he ad- mit facts to support plea. Court accepted accused's evidence that he felt pressure from his lawyer to plead guilty. Court was satis- fied on balance of probability that accused did not enter his plea voluntarily. What transpired was fraud on court, and what was most troubling was role played by trial counsel. Counsel's failure to do his job professionally and ethically created risk of miscar- riage of justice. To remedy risk of miscarriage of justice, guilty pleas were struck. R. v. Johnson (Apr. 4, 2014, Ont. S.C.J., McMahon J., File No. CR-12-9000513-000) 113 W.C.B. (2d) 396 LT CASELAW

• Cover