Law Times

Law Times • augusT 9, 2010 (June 3, 2010, F.C., Russell J., File No. T-1009-04) 188 A.C.W.S. (3d) 1138 (33 pp.). ONTARIO CIVIL CASES Civil Procedure TRIAL Self-represented plaintiff not entitled to support person at trial Self-represented plaintiff in per- sonal injury action requested ac- commodations at trial. Alleged barriers, attributed to diffi culty with information processing and multitasking and cognitive demands of trial, included diffi - culty performing cognitive tasks, impossibility of note-taking and fatigue. Proposed accessibility plan, prepared without review of medical evidence, included: support person, professional note-taker at expense of Minis- try of Attorney General, shorter hearing days, and quiet room for plaintiff 's use. Quiet room and note-taker approved. Sup- port person refused. No medical evidence that accommodation required. Allowance of support person would add credibility to vigorously contested claim that head injury suff ered, to preju- dice of defendant. Proposed role included tasks performed by lawyers, including prepar- ing questions and questioning witnesses. Such a role not per- mitted under s. 26.1 of Law Society Act (Ont.). Expected training or skills of support person unclear. Recommenda- tions ill-informed, unnecessary, unworkable and unfairly raised plaintiff 's expectations. Baines v. Hehar (May 20, 2010, Ont. S.C.J., Horkins J., File No. 06-CV-323766PD2) 188 A.C.W.S. (3d) 1012 (8 pp.). Courts ABUSE OF PROCESS Action nothing more than collateral attack on judgments in previous actions Plaintiff and brother had busi- ness dispute dating back to at least 1980. Th ere was lengthy history of litigation between plaintiff and brother. Defen- dants were lawyers representing brother. Defendants arranged meeting between plaintiff and brother. No subsequent meet- ings were scheduled. Plaintiff is- sued statement of claim seeking damages as result of defendants' failure to schedule further meetings. Defendants brought motion to dismiss action for being abuse of process. Mo- tion allowed. Action was abuse of process. Present action was fourth action brought by plain- tiff in respect of dispute with brother. First ended in settle- ment, second was dismissed for being barred by settlement and third was dismissed as abuse of process. Action was repeated at- tempt to re-litigate dispute be- tween plaintiff and brother that had already been settled. Action was nothing more than collat- eral attack on judgments in pre- vious actions in guise of action against defendants. Action was ordered dismissed. Paletta v. Yachetti (May 31, 2010, Ont. S.C.J., Daley J., File No. 09-16764) 188 A.C.W.S. (3d) 996 (12 pp.). Professions BARRISTERS AND SOLICITORS Substantial prejudice would result from account being referred for assessment Application by client pursuant to ss. 4 and 11 of Solicitors Act (Ont.), for order referring solici- tor's fi nal account dated Febru- ary 25, 2005 for assessment. Full and fi nal settlement of SABS claims which included settle- ment of solicitor's fees occurred at private mediation on February 10, 2005. Solicitor's fees paid out of settlement funds. Application dismissed. Special circumstances did not exist that required court to order assessment. Delay by client inordinate. Client did not bring application until over three years after account deliv- ered and over two years after twelve month limitation period had passed. Client's fi rst for- mal complaint about solicitor's conduct came with September 2005 complaint to Law Society. Law Society advised client in January 2007 of court's assess- ment process but client did not act on information for over one year. Non-particularization of account was not special circum- stance. While preferable that ac- counts be particularized, it is not requirement imposed by law. No medical evidence supporting contention client sustained brain injury that would aff ect her level of sophistication in relation to understanding the litigation. Substantial prejudice would re- sult from account being referred for assessment. Solicitor had been in process of retiring from practice since 2006 and did not reside in Canada. Client given fi le in 2005 and was not com- plete. Client had reorganized fi le and state of fi le posed problems for solicitor during cross-exami- nation. State of fi le would cause equal or greater problem at as- sessment. Burden of incomplete and disorganized fi le should not be laid at solicitor's feet. Wachmenko v. Conroy Trebb Scott Hurtubise LLP (May 10, 2010, Ont. S.C.J., Allen J., File No. 08-CV-352001PD2) 188 A.C.W.S. (3d) 1170 (11 pp.). Torts LIBEL AND SLANDER Trial judge did not err in applica- tion of doctrine of fair comment Trial judge did not err in fi nd- ing appellant liable to respon- dents for libel arising out of statements published by appel- lant on personal website and posted by him on two third- party websites. Trial judge explicitly stated proper test, whether impugned statements were substantially true and he properly applied this test. Nor did trial judge err in his appli- cation of doctrine of fair com- ment to appellant's statement: "this designer in my view has no integrity". Defence of fair comment requires that com- CASElAW ment be based on correct facts. Trial judge concluded that un- derlying facts were not true and hence, this statement could not be supported as fair comment. Th ere was no basis for interfer- ing with this conclusion. Mudford v. Smith (June 1, 2010, Ont. C.A., Winkler C.J.O., Goudge and MacPherson JJ.A., File No. C51270) Decision at 181 A.C.W.S. (3d) 388 was affi rmed. 188 A.C.W.S. (3d) 1185 (3 pp.). ONTARIO CRIMINAL CASES Charter Of Rights DOUBLE JEOPARDY Section 127(5) of Corrections and Conditional Release Act (Can.) does not violate s. 11(h) of Canadian Charter of Rights and Freedoms Application by accused to de- clare s. 127(5) of Corrections and Conditional Release Act (Can.) to be unconstitutional because it violated s. 11(h) of Canadian Charter of Rights and Freedoms as to double jeopardy. Accused raised concerns about grounds for suspension of his parole, subsequent revocation of parole by National Parole Board and affi rmation of that decision by National Parole Board Ap- peal Division. Section 127(5) dealt with determining statuto- ry release date of off ender whose parole or statutory release was revoked. Accused demonstrat- ed mathematically that having been released on parole after he served part of sentence, if parole was suspended it could result in later release than would have occurred if he had never been released on parole. Application dismissed. Parole was system with defi ned aims and purposes which, as tool to those purposes, permitted release sooner than warranty expiry date that result- ed from sentence imposed. No recalculation under s. 127(5) could cause sentence to go be- yond warranty expiry date. Th is was not double jeopardy under s. 11(h). Accused could not, by application of s. 127(5) be sen- tenced twice for same off ence. Rather, he was being required to serve greater proportion of sentence imposed. Th ere was no Charter violation in this. Elguindy v. Canada (Attorney General) (May 21, 2010, Ont. S.C.J., Eberhard J., File No. 10-080) 88 W.C.B. (2d) 285 (8 pp.). Disclosure GENERAL Request by three accused for particu- lars and disclosure was dismissed Application by three unrelated accused, who were charged with drinking and driving off ences, for particulars and for disclo- sure. Th eir argument was that evidence of results of breath analyses could not constitute conclusive proof of concentra- tion of alcohol in their blood without reference to actual sci- entifi c ratio of blood to breath. www.lawtimesnews.com Particulars were essential for ac- cused to know whether Crown alleged off ence of operation with what they referred to as true blood alcohol concentra- tion of over 80% mgs. Accused made requests for extensive disclosure regarding operation of breathalyzer devices used to test them. Crown honoured some of their requests. Appli- cation dismissed. Particulars were not required to enable ac- cused to prepare for case they had to meet. Accused and their experts completely understood scientifi c assumptions behind operation of breathalyzer de- vice. Accused's request would eff ectively redefi ne off ences created by Parliament. It went beyond purpose of ordering particulars for criminal act. Re- garding disclosure requests for maintenance and service re- cords of devices and for inter- nal data stored within devices was not allowed because it was speculative and was not shown to be likely relevant to charges accused faced. R. v. Batenchuk (May 20, 2010, Ont. C.J., Maund J., File No. 08-1181) 88 W.C.B. (2d) 272 (18 pp.). Sexual Offences SEXUAL EXPLOITATION Accused's convictions for sexual exploitation of stepdaughter upheld on appeal Accused appealed his convic- tions on four counts of sexual exploitation of his stepdaugh- ter when she was 14 to 18 years PAGE 15 old. Accused argued guilty ver- dicts were inconsistent with four acquittals entered by jury for sexual assault and sexual interference of stepdaughter when she was 13 years old. Ac- cused argued Crown's closing address invited jury to compare accused's acknowledged email message with disputed ones in terms of similarity and misspell- ing of certain words. Accused argued trial judge erred by fail- ing to give Vetrovec warning regarding evidence of com- plainant as alleged unsavoury witness. Appeal dismissed. Jury was entitled to use evidence to confi rm complainant's evi- dence in respect of charges re- lating to period when she was between 14 and 18 years old, even if they were not satisfi ed relationship began when she was 13 years old. Jury was en- titled to accept that accused wrote emails. Crown counsel advanced argument not as ba- sis of proof of authorship, but only to respond to defence the- ory that complainant concoct- ed emails. Trial judge did not make Browne v. Dunn error, as accused could not have com- mented on wording of emails he claimed not to author. Ve- trovec warning applied only where witness was established as unsavoury in some way be- yond issues of credibility to be determined by jury based on evidence in case. R. v. C. (G.D.) (May 17, 2010, Ont. C.A., Feldman, Juriansz and Watt JJ.A., File No. C50356) 88 W.C.B. (2d) 307 (4 pp.). LT 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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