Law Times

Law Times • June 7, 2010 Anand v. Belanger (Apr. 21, 2010, Ont. S.C.J., Stinson J., File No. 04-CV-266354CM1) 187 A.C.W.S. (3d) 226 (9 pp.). Torts NEGLIGENCE Trial judge was entitled to con- clude that but for defendant's negligence, plaintiff would not have suffered psychiatric harm Plaintiff was in motorcycle ac- cident. Defendant emergency room physician diagnosed left- ankle fracture and right-ankle soft tissue injury. Cast placed on plaintiff 's left ankle. De- fendant advised plaintiff that continuing pain in right ankle was necessary part of recovery. Plaintiff was discharged. Four days later, radiologist exam- ined x-rays and immediately noticed talar fracture in plain- tiff 's right ankle. At follow-up appointment, defendant ad- vised plaintiff that right-ankle fracture barely visible and did not require treatment. De- fendant recommended plain- tiff return to work. Day after plaintiff returned to work he experienced severe pain in right ankle. At walk-in clinic, plaintiff diagnosed with major fracture in right ankle. Ortho- paedic surgeon concluded that complications from fracture included arthritis, avascular necrosis and possibility of sur- gery. After realizing extent of injuries and misinformation from defendant, plaintiff saw psychiatrist who diagnosed him with anxiety disorder. Tri- al judge held that defendant's incorrect interpretation of x- ray did not breach standard of care as quality of image sub- optimal and talar fractures uncommon injury. Defendant did not authorize plaintiff 's discharge and therefore not liable for failing to notice x- ray report missing from chart. Defendant did breach stan- dard of care by failing to take active steps to advise plaintiff of fracture and continuing to misrepresent extent of injury. Trial judge awarded general damages of $2,500 for pain plaintiff experienced between accident and when ankle fi - nally immobilized. Trial judge also found causation with re- spect to anxiety disorder es- tablished. Defendant's appeal dismissed. Psychiatric dam- age recognized as kind of in- jury compensable in action for negligence. All experts agreed plaintiff developed serious dis- order resulting in legitimate disability. Trial judge erred in applying material contri- bution test since diffi culty of proving causation in cases of psychiatric harm does not al- ways amount to impossibility. Error, however, had no impact on fi nal decision because trial judge correctly applied "but for" test and was entitled to conclude that but for defen- dant's negligence, plaintiff would not have suff ered psy- chiatric harm. Further, no evi- dence plaintiff 's injuries were result of unique hypersensitiv- ity. Given nature of relation- ship between parties, it should have fallen within defendant's contemplation that his blatant breach of trust could have se- vere ramifi cations for plain- tiff 's mental health. Frazer v. Haukioja (Apr. 7, 2010, Ont. C.A., MacPher- son, Simmons and LaForme JJ.A., File No. C49539) Deci- sion at 169 A.C.W.S. (3d) 206 was affi rmed. 187 A.C.W.S. (3d) 306 (27 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ENFORCEMENT OF RIGHTS Officer's actions bordered on wilful blindness Accused appealed convic- tion for "over 80". Trial judge found breach of accused's s. 8 Charter, as seizure of breath samples was unreasonable due to arresting offi cer's lack of knowledge regarding approved screening device ("ASD"). Ac- cused argued trial judge erred in not excluding breath sam- ples having found breach of s. 8 Charter rights. Appeal al- lowed. Court was not required to order new trial in order to permit accused to present evi- dence and arguments specifi - cally directed to new s. 24(2) Charter test in R. v. Grant. Counsel for accused was un- able to identify any evidence that could not have been led at fi rst trial and which would not have been relevant to s. 24(2) Charter analysis un- der applicable test at time of trial. Violation could not be dismissed as merely technical, as offi cer's testimony made it clear that he did not use ASD properly. Offi cer was negli- gent in failing to ask another offi cer with necessary knowl- edge to perform test. Offi cer's actions bordered on willful blindness of both technical requirements of what he was doing as well as its constitu- tional signifi cance. Although taking of breath samples was minimally intrusive in physi- cal sense, accused was arrested, handcuff ed, placed in police car, taken to station and kept in custody for hour and fi fty minutes. While judge was cor- rect in saying that treatment of accused was not oppressive, that was not test. Interference with accused's personal lib- erty could not be dismissed as minor. Evidence obtained by analysis of breath samples was reliable and would not mis- lead trier of fact. General pub- lic accepted use of breath sam- ple evidence and admitting it would not create impression that accused's trial was unfair or otherwise bring administra- tion of justice into disrepute. Public must have confi dence that offi cers who are charged with exercising important powers under s. 254 of Crimi- CASELAW nal Code have necessary skills and training to do so. Admit- ting breath sample evidence would bring administration of justice into disrepute. R. v. Au-Yeung (Apr. 19, 2010, Ont. S.C.J., Ducharme J., File No. 168/07) 87 W.C.B. (2d) 481 (39 pp.). Evidence HEARSAY Hearsay statements of deceased were relevant to planning and deliberation Application by Crown to in- troduce into evidence hearsay statements made by deceased. Two accused were charged with fi rst degree murder of deceased. Th eory of Crown was that accused and third individual conspired to have deceased come to apartment where he was shot so that they could rob him of money and drugs. Deceased did come to apartment and confrontation occurred that resulted in his death. Crown witness testifi ed at preliminary hearing that deceased was summoned to apartment to supply drugs as existing supply there had been consumed in course of party. Deceased told him he was coming there because someone had already called him to come there. Th is was hearsay state- ment that Crown sought to in- troduce. Application allowed. Evidence was relevant to issues of planning and deliberation, which were required elements to make case for fi rst degree murder. Evidence was not admissible under traditional exceptions to hearsay rule. Evidence was necessary since victim was no longer alive. Crown provided supporting evidence to show that hearsay evidence was reliable. Th ere were suffi cient indices of reli- ability to permit admission of evidence. Jury would be able to suffi ciently assess truth and accuracy of statement. Crown witness who spoke to deceased could be cross-examined. Jury could be warned of dangers associated with statement dur- ing charge to jury. Prejudicial eff ect of evidence did not out- weigh its probative value. R. v. Jackson (Apr. 23, 2009, Ont. S.C.J., Turnbull J., File No. 08-1856) 87 W.C.B. (2d) 530 (15 pp.). Sentence OBSCENITY Accused sentenced to 18 months' incarceration plus probation for child pornography offences Accused sentenced to 18 months' incarceration fol- lowed by three years of proba- tion after he was found guilty of three counts of possession of child pornography, two counts of making child por- nography available to others through peer to peer fi le shar- ing network and one count of making child pornography by transferring images from his computer onto CDs. Pursuant investigation search warrant was executed at accused's home www.lawtimesnews.com wherein 1320 child pornogra- phy images were located on his computer hard drive and ad- ditional 1254 images and 10 videos of child pornography were found stored on CDs. Accused was 67 years old and had no criminal record. Ac- cused had spent over two years on bail under restrictions, al- though not nearly so onerous as to be considered house ar- rest. Accused had voluntarily entered therapy but court was unable to assess his risk of re- off ending. Accused had been gainfully employed his whole life and still had support of his wife and son. R. v. Cuttell (Apr. 13, 2010, Ont. C.J., Pringle J.) W.C.B. (2d) 565 (10 pp.). Provincial Offences GENERAL Nothing in justice of peace's decision suggested that he fairly considered request for adjournment City applied for relief in nature of certiorari to quash orders staying proceedings against two diff erent accused. Accused were both charged with various traffi c off ences. Both accused had indicated their intention to enter plea of not guilty and requested Urdu language in- terpreter for trial. At fi rst ap- pearance before court in both cases no interpreter was avail- able due to administrative er- ror and Crown admitted it was city's responsibility to arrange for interpreter and requested 87 PAGE 15 adjournment. Because of lan- guage issue no meaningful position could be obtained from accused. Justices of peace refused Crowns' requests for adjournment and would not permit Crowns to call evidence and stayed charges. Order to issue setting aside justices of peace' decision staying mat- ters and ordering that new tri- als be held. Th ere was nothing in fi rst justice of peace's deci- sion which even suggested that he fairly considered request for adjournment or gave due consideration to it. Justice of peace fettered his discretion by assuming that administrative error was "abuse" and thereby exceeded his jurisdiction. Only explanation given by second justice of peace appeared to be that accused had right to trial on fi rst appearance and that it was court's expectation trial would take place on fi rst ap- pearance. Result that charges are dismissed or stayed because prosecutor could not proceed for any reason on fi rst atten- dance whatsoever was not sup- ported by Provincial Off ences Act (Ont.). Second justice of peace failed to consider other relevant factors in determining whether adjournment should be granted fettering his discre- tion and thereby exceeding his jurisdiction. Mississauga (City) v. Malik (Apr. 20, 2010, Ont. S.C.J., Ricchetti J., File No. 91/10; 92/10) 87 W.C.B. (2d) 522 (14 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. 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