Law Times

Law Times • June 20, 2011 not fully explored or appreciated at time of trial Appeal from conviction for sec- ond degree murder. Accused found guilty of second degree murder of her son. As result of reinvestigation of cases where doctor who performed autop- sies application was granted and case was remanded to court for consideration of fresh evidence and whether accused's convic- tion constituted miscarriage of justice. Appeal granted and new trial ordered. Diagnosis that doctor gave could not have been based on evidence presented. Fresh evidence showed that doc- tor made signifi cant errors that could have misled jury and led to miscarriage of justice. Doc- tor's use of terminology con- fusing and misleading. Fresh evidence suggesting possibility of death due to natural causes was not fully explored or ap- preciated at time of trial. Fresh evidence could leave jury with reasonable doubt that accused caused death of her child. R. v. Marquardt (Apr. 8, 2011, Ont. C.A., Rosenberg, Sharpe and Watt JJ.A., File No. C24367) 93 W.C.B. (2d) 776 (13 pp.). Charter Of Rights RIGHT TO COUNSEL Accused not given his rights to counsel without delay but violation occurred after gun had been seized by police Accused charged with nine fi re- arm off ences and one failure to comply with recognizance aris- ing out of possession of fi rearm. Offi cers responded to surveil- lance report that accused could have been carrying weapon. When offi cer asked accused to lift his shirt all the way up he started running. Gun dropped from accused's waist during pursuit and offi cer picked it up before accused was caught and subdued. Accused was not ad- vised of his rights to counsel un- til after he was handcuff ed, sub- dued, taken to see paramedic with respect to cuts and scrapes on his face and then returned to police vehicle. Application dis- missed, accused found guilty. Accused was not given his rights to counsel without delay but this violation occurred after gun had been seized by police. Th ere was no evidence of anything which accused was alleged to have said or done arising from failure of police to advise him of his right to counsel forthwith after his detention and arrest. R. v. Guce (Apr. 20, 2011, Ont. S.C.J., Pattillo J., File No. 10- 70000602-0000) 93 W.C.B. (2d) 796 (16 pp.). Evidence IDENTITY OF ACCUSED Convictions could not stand because of judge's failure to address evolving differences Appeal by accused from his convictions. Four masked men broke into townhouse where complainant lived and robbed him and his roommate. Crown alleged that accused was third of four masked men. Issue at trial was identifi cation. Complain- ant's identifi cation of accused evolved over time. Hour after robbery he told police that, even though he did not get good look at third male he "kind of" rec- ognized his eyes as being those of accused. He said accused had been to his home several times and he had seen him around townhouse complex. At trial complainant acknowledged that when he spoke to police he was not even 50% sure that accused was one of robbers. Day and half later, when complainant picked accused out of photographic lineup he was 80 to 90% sure he was third male. By time of trial complainant was 100% certain that accused was third male. Trial judge accepted this evidence. Appeal allowed. New trial ordered. Judge failed to ad- dress evolving details and level of confi dence in complainant's identifi cation evidence. Evolv- ing diff erences were crucial to evaluating reliability of com- plainant's evidence. Convic- tions could not stand because of judge's failure to address evolv- ing diff erences. R. v. S. (J.) (Apr. 19, 2011, Ont. C.A., Laskin, Sharpe and Cronk JJ.A., File No. C52577) 93 W.C.B. (2d) 779 (5 pp.). Search And Seizure LEGALITY Consideration of totality of sequence of observations confirmed credible tip and provided required grounds to arrest Accused acquitted of fi rearms off ences after trial judge exclud- ed evidence pursuant to s. 24(2) of Charter. Police received tip from credible informant advis- ing of imminent drug and fi re- arms transaction. Police located vehicle at location described by informant and followed vehicle to Toronto, observing occu- pants moving items around in vehicle. Police arresting accused and discovered several fi re- arms in search of vehicle inci- dent to arrest. Trial judge held search violated ss. 8 and 9 of Charter as offi cer lacked objec- tive grounds to arrest accused. Trial judge held observations of vehicle provided insuffi cient corroboration of informer's tip and amounted only to hunch or suspicion that accused en- gaged in fi rearms off ences. Crown appeal from acquittals allowed. Trial judge erred by failing to give weight to defence concession that informer was credible. Acknowledged cred- ibility of informer signifi cant in compensating for weakness of whether information predicting information of fi rearms off ence compelling. Trial judge erred by compartmentalizing aspects of surveillance observations tending to confi rm tip in hold- ing offi cers lacked objectively reasonable grounds. Consider- ation of totality of sequence of observations confi rmed cred- ible tip and provided required grounds to arrest. R. v. Whyte (Jan. 13, 2011, Ont. C.A., Rosenberg, Cronk and Epstein JJ.A., File No. C51976) Decision at 87 W.C.B. (2d) 697 reversed. 93 W.C.B. (2d) 814 (16 pp.). CASELAW ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Funding agreement between third party and plaintiff helped to pro- mote access to justice Motion by plaintiff s in proposed class proceeding for approval of funding agreement. Th ird party agreed to indemnify plaintiff s in return for seven percent share of proceeds of any recovery. Mo- tion granted. Funding agree- ment helped to promote access to justice. Th ere was no evidence that lender stirred up, incited or provoked litigation, within meaning of term "moved" in s. 1 of Champerty Act (Ont.). Indemnifi cation agreement left control of litigation in hands of representative plaintiff . Com- mission payable was reasonable. Dugal v. Manulife Financial Corp. (Mar. 21, 2011, Ont. S.C.J., Strathy J., File No. CV-09-383998-00CP) 200 A.C.W.S. (3d) 35 (9 pp.). Employment WRONGFUL DISMISSAL Employer's defence of frustration failed Plaintiff worked for defendant for more than 30 years. Plaintiff was diagnosed with lung cancer. Defendant terminated plaintiff 's employment. Defendant argued employment contract was frus- trated due to plaintiff 's illness. Action was allowed. Claim for severance pay was dismissed given defendant's payroll for Ontario operations was less than $42.5 million. Defendant did not pay plaintiff all of wages to which plaintiff was entitled and did not make all bonus payments to plaintiff . Amount of unpaid salary for 2008 and amount of unpaid bonus pay- ments for 2006 and 2007 were to be determined at reference. Defendant was not entitled to withhold plaintiff 's vacation ac- count. Amount of vacation pay was to be determined by refer- ence to master. Defence of frus- tration failed. Defendant did not establish plaintiff 's illness was of such nature that plaintiff was unable to perform duties of job. Period of reasonable notice was 22 months inclusive of 8 weeks of statutory entitlement. Long-term disability benefi ts re- ceived by plaintiff were not de- ductible from damages awarded. Plaintiff was awarded $35,000 as compensatory damages as result of defendant's breach of duty to deal with plaintiff in good faith and with fairness in manner in which defendant ter- minated employment. Plaintiff was awarded punitive damages of $20,000. Defendant was to pay plaintiff $4,725 in com- mission pursuant to agreement of parties. Amount of money owed to plaintiff from deferred profi t sharing plan was to be determined at reference before master. Altman v. Steve's Music Store Inc. (Mar. 8, 2011, Ont. S.C.J., Cor- rick J., File No. CV-10-398619) www.lawtimesnews.com 200 A.C.W.S. (3d) 142 (28 pp.). Injunctions INTERLOCUTORY RELIEF Temporary or short delay of access to or from employer's facilities did not appear to be realistic possibility Motion by employer for in- terlocutory injunction. Parties were engaged in labour dispute. Union initiated strike. Picket line was established preventing or disrupting access to employ- er's facilities. Th ere were inci- dents of violence or threatened violence on picket line. On one occasion, picketer was hit by truck entering facility resulting in very serious injuries. Employ- er sought injunction prohibiting any and all obstruction of any of entranceways to and from fa- cilities. Motion granted. It was ordered that there be no imped- ance or obstruction by picketers. In this case, temporary or short delay of access to or from em- ployer's facilities did not appear to be realistic possibility. Alumicor Ltd. v. U.S.W. (Mar. 17, 2011, Ont. S.C.J., Ricchetti J., File No. CV-11-1079-00) 200 A.C.W.S. (3d) 221 (21 pp.). Professions PHYSICIANS AND SURGEONS Injunction did not need to be granted as doctors needed consent of substitute decision-maker to remove patient from life support Patient suff ered brain injury and damage to brainstem and spinal PAGE 15 caused by infection. Patient was in coma and was being kept alive by mechanical ventilator. Patient was fed through tube inserted in patient's stomach. Physician's proposal to end life- sustaining treatment was op- posed by patient's substitute de- cision-maker. Applicants sought order preventing physicians and hospital from withdrawing life- sustaining treatment being ad- ministered to patient. Physicians made cross-application for de- claratory relief concerning pro- posed withdrawal of treatment in end of life situation. Physi- cian's proposal to end life-sus- taining treatment was to be re- ferred to Consent and Capacity Board. Physicians were not per- mitted to withdraw mechanical ventilation and transfer patient to palliative care pending deci- sion of board. Life support fell within defi nition of "treatment" under Health Care Consent Act, 1996 (Ont.). Withholding or withdrawing of life support also fell within defi nition of treatment. Provisions of Act ap- plied in case. Canadian Charter of Rights and Freedoms did not apply to proposed decision of physicians to withdraw treat- ment. Doctors needed consent of substitute decision-maker under statutory scheme of Act to remove patient from life sup- port. Injunction did not need to be granted. Rasouli (Litigation guardian of) v. Sunnybrook Health Sci- ences Centre (Mar. 9, 2011, Ont. S.C.J., Himel J., File No. CV- 11-419084; CV-11-419611) 200 A.C.W.S. (3d) 276 (27 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. 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