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Law Times • may 17, 2010 struck another transport truck. She was not wearing seat-belt and her body was thrown from truck, decapitated and dismem- bered. Jury awarded mother $22,000 for past wage loss; $6,000 per year for 12 years for future wage loss; and $200,000 for loss of care, guidance and companionship. Father was awarded $50,000 for loss of care guidance and companionship. Sister was awarded $25,000 for loss of care, guidance and com- panionship. Appeal allowed in part. Mother's failure to provide expert evidence in connection with wage loss claim was not fatal. However, jury's award for damages to mother for loss of care, guidance and companion- ship was grossly excessive and out of proportion to what was permitted by law having regard to evidence that was presented. Upper end of acceptable range for damages in this case was limited to $125,000. Mother's damages for loss of guidance, care and companionship were reduced to $125,000. Fiddler v. Chiavetti (Mar. 19, 2010, Ont. C.A., Goudge, Cronk and LaForme JJ.A., File No. C49158) 186 A.C.W.S. (3d) 673 (30 pp.). Education SCHOOLS Tribunal reasonably concluded that board failed to prove student's activities would negatively impact school climate School board expelled student for off -school activities. Tribu- nal quashed decision, reinstat- ed student and ordered record of expulsion be expunged. Tri- bunal found there was no nex- us between student's off -school activities and school climate. Application for judicial review was dismissed. Tribunal had discretion to determine appro- priate procedure to be applied subject to obligation of proce- dural fairness and requirements of Statutory Powers Procedure Act (Ont.). Tribunal held de novo hearing for good reasons. Tribunal's decision fell within range of reasonable outcomes. Tribunal correctly interpreted legislation, weighed evidence and reasonably concluded that school board failed to prove student's activities would nega- tively impact school climate. Kawartha Pine Ridge District School Board v. Grant (Mar. 2, 2010, Ont. S.C.J. (Div. Ct.), Dambrot, Swinton and Sachs JJ., File No. 284/09) 186 A.C.W.S. (3d) 713 (10 pp.). Limitations HOSPITALS Medical reports were not required for plaintiffs to decide that a wrong had occurred Motion by defendant hospital for summary judgment on ba- sis limitation period constitut- ed complete defence to plain- tiff s' action. Plaintiff s were the estate and widow of deceased. Deceased was admitted to hos- pital in January 2004 and un- derwent gall bladder surgery. Following surgery, deceased fell when nurse insisted he get out of bed and walk, and broke hip on January 31, 2004. De- ceased required hip replace- ment and was released from hospital February 19, 2004. In September 2005, deceased re- tained counsel for an opinion on quality of care received in hospital. Counsel found expert opinions in 2006 and obtained hospital reports in 2007. State- ment of claim issued October 25, 2007, more than four years from date deceased broke hip. Defendant argued plaintiff s were well aware of material facts at time deceased broke hip, so two-year limitations period was long expired. Plaintiff s argued standard of care was material issue and they were not aware of it until expert reports and hospital records had all been obtained in 2007. Motion al- lowed. Statement of claim pleaded deceased was con- fused and disoriented follow- ing surgery but nurse insisted he get out of bed and walk. Nurse's actions were basis for negligence claim, so plaintiff s' were aware of cause of action when deceased fell and broke hip. Plaintiff s were aware of ex- tent of damage just days later when deceased underwent hip replacement. Medical reports would be needed to support al- legations at trial but were not required for plaintiff s to decide that a wrong had occurred. Furthermore, even if plaintiff s had proven medical reports were needed, their failure to act diligently in obtaining them would be fatal. Plaintiff s' coun- sel could have immediately ob- tained medical records from deceased's family doctor upon being retained, but inexplica- bly took two years to do so. Konwisarz Estate v. William Osler Health Centre (Apr. 12, 2010, Ont. S.C.J., Ricchetti J., File No. CV-07-3424-00) 186 A.C.W.S. (3d) 823 (16 pp.). ONTARIO CRIMINAL CASES Assault AGGRAVATED ASSAULT Accused convicted of aggravated assault based on admission that he intentionally wounded victim's hand Trial of accused for aggravated assault by wounding. Accused and victim got into fi ght in pub that developed into brawl that involved other patrons. When it was over victim sustained two signifi cant cuts. One was to his right hand and other was to left side of his neck. Accused admitted that he intentionally wounded victim's hand and was therefore guilty of aggra- vated assault on that basis. He denied responsibility for neck injury, which was more seri- ous of two cuts. Crown alleged that accused was liable for neck injury either as principal or as party. Self-defence was not in issue. Accused was convicted of aggravated assault based on his admission. Crown failed to CASELAW prove that accused caused neck injury, either as principal or as party. Evidence in this regard was contradictory. Victim con- ceded that it was possible that neck injury was caused by un- known attacker. As for liability as party, there was no evidence that accused was involved with unknown assailant in common unlawful purpose. R. v. Pulido (Mar. 24, 2010, Ont. S.C.J., Baltman J., File No. CR-09-3511) 87 W.C.B. (2d) 240 (9 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Accused's anxiety, stress, and depression stemmed from fact of charges, not delay Accused was charged with im- paired driving and leaving scene of accident. Total length of de- lay from date information was sworn until end of trial was 13 months and 29 days. Applica- tion dismissed. Anxiety, stress and depression described by accused stemmed directly from fact he had been charged with criminal off ence and not from delay. Additional fi nancial costs accused referred to were un- specifi ed. Court had no basis upon which to assess impact of delay on accused's memory of events. Loss of Crown witness' memory worked to benefi t of accused and it was diffi cult to fathom rational basis for con- cluding that loss of memory by witness which worked to ben- efi t of accused could at same time impair accused's ability to make full answer and defence. 11 months and 23 days of insti- tutional delay did not warrant inference of any prejudice. R. v. Ramos (Mar. 30, 2010, Ont. C.J., Barnes J.) 87 W.C.B. (2d) 262 (8 pp.). Evidence PRIVILEGE Information received in 911 call was not subject to confidential informant privilege Application by accused for or- der to require Crown to disclose certain information in its pos- session. Woman called 9-1-1 to report that vehicle was parked outside her home with engine running. She said vehicle had been there for about hour and at one point she saw man sit- ting in driver's seat. At request of 9-1-1 operator caller identi- fi ed herself and gave address and phone number. Police were dispatched to scene and found accused, who appeared to be in- toxicated, sitting in driver's seat. Accused was arrested and was dealt with as person believed to be in care and control of motor vehicle while his ability to drive was impaired. Investigating offi - cer spoke to 9-1-1 caller and was told that she wanted to remain anonymous. No statement was taken from her. Accused sought disclosure and was not provided with record of 9-1-1 call. Crown refused to provide information about identity of caller but sub- sequently provided transcript of call, which was edited to remove references that would identify www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM caller. It maintained that caller's identity was protected by con- fi dential informant Application privilege. allowed. Crown did not establish, on balance of probabilities, that information received in 9-1-1 call was sub- ject to confi dential informant privilege. General rule that Crown was obliged to disclose all evidence which was mate- rial to issue in this case was not displaced. Crown was therefore directed to disclose unedited tape and transcript of 9-1- 1 to defence forthwith. Fact that caller lived in same small community as accused was not enough to prevent disclosure as this case was not unlike many other criminal prosecutions where witnesses preferred to remain anonymous. Exigencies of criminal justice did not usu- ally permit Crown to off er such assurances to witnesses. R. v. Kaboni (Mar. 16, 2010, Ont. C.J., McLeod J.) 87 W.C.B. (2d) 274 (7 pp.). Sentence DRUG OFFENCES Accused received global sentence of 77 months for various offences Sentencing of accused for va- riety of off ences. Accused was convicted by judge and jury of unlicensed possession of hand- gun, careless storage of hand- gun, possession of cocaine and ecstasy for purpose of traffi ck- ing and simple possession of cocaine. He was convicted by judge alone of two counts of possession of fi rearm while he PAGE 15 was prohibited from doing so and of two counts of failing to comply with probation orders. He pleaded guilty to having in his possession safe of value not exceeding $5,000, knowing that safe was obtained through commission of indictable of- fence and to two counts of fail- ing to comply with two separate probation orders. Accused was 42-years old and was 40 when he was arrested. He was addict- ed to drugs but was drug-free because of his incarceration over past few years. Accused had lengthy and serious crimi- nal record that included all kinds of off ences. For off ences for which accused was convict- ed by judge and jury, which included charge that pertained to safe, accused received global sentence of 77 months. He had to serve 25 months because he received credit of 52 months for time served. For off ences for which he was convicted by judge alone, which included breach of two probation orders to which he pleaded guilty, he had to serve 22 months. To- tal time to be served was 47 months. Paramount sentencing factors were denunciation and general and specifi c deterrence. Aggravating factors in this case far outweighed those in mitiga- tion. Accused engaged in con- tinued and escalating criminal conduct in face of numerous court orders. R. v. Murphy (Mar. 5, 2010, Ont. S.C.J., DiTomaso J., File No. 08-042) 87 W.C.B. (2d) 332 (37 pp.). LT Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! 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