Law Times

Law Times • May 11, 2015 Page 15 www.lawtimesnews.com to find discussion forum about different companies and projects. Defendant posted statements on bulletin board dedicated to plain- tiff company. Plaintiffs claim that statements made were defama- tory in that they were understood to mean that company had liar as president and CEO; president and CEO made misleading and/ or untrue statements and was untrustworthy; president and CEO would operate business in manner to defraud shareholders; president and CEO was involved in fraudulent activity, was ripping shareholders off and was spend- ing shareholders money in inap- propriate way. Plaintiffs claimed that posting could potentially sway away potential investors from investing in company. There were 742 views of posting before website took it down. Plaintiffs claimed that stock price of com- pany decreased as proximate re- sult of defamatory publication. Plaintiffs claimed that individual plaintiff suffered injury to char- acter and good reputation. Plain- tiffs brought defamation action seeking damages. Action allowed. Comments referred to individual plaintiff and were defamatory. Individual plaintiff was referred to as "confirmed liar"; it was sug- gested that he defrauded inves- tors; it was alleged he had stolen ownership of company and was reckless with company's money. Individual plaintiff had enjoyed good reputation in business com- munity. There were only five postings. Postings were accessed 742 times, but that did not mean 742 different viewers. There was no apology. Individual plaintiff 's reputation was damaged and he was awarded general damages of $30,000. Defendant attempted to circumvent website's suspen- sion of postings by adopting new username to renew attack on in- dividual plaintiff such that fur- ther $10,000 in aggravated dam- ages was awarded to individual plaintiff. Company was awarded general damages of $25,000. It was difficult to establish that de- fendant's postings were cause of company's losses. Damages awards were sufficient to punish and deter defendant from making any further comments. No puni- tive damages were awarded. Focus Graphite Inc. v. Douglas (Feb. 20, 2015, Ont. S.C.J., Robert N. Beaudoin J., File No. CV-13- 57438) 251 A.C.W.S. (3d) 174. FEDERAL COURT Human Rights Legislation DISCRIMINATION Failure to analyze accommodation to point of undue hardship was incorrect and unreasonable Applicant was seafarer who sought Marine Medical Cer- tificate confirming his physical and mental fitness for purpose of employment. Applicant was examined by Transport Canada marine medical examiner who raised concerns regarding appli- cant's fitness for seafaring duty. On August 31, 2010, Transport Canada informed applicant that he was unfit to hold certificate. Decision was based on alcohol de- pendence, major depression and developmental disorder. Appli- cant unsuccessfully appealed to Transportation Appeal Tribunal. Thereafter, applicant addressed his alcoholism and was issued three-month restricted certifi- cate in 2011 that found he was fit for duty with specific limitations. In October 2012, applicant was issued unrestricted certificate. Applicant filed human rights complaint in June 2012 alleging discrimination on basis of dis- ability. Canadian Human Rights Commission recommended dis- missal of complaint on basis of no adverse differential treatment and bona fide safety justification. Applicant applied for judicial re- view of commission's decision. Application allowed. Commis- sion's investigation report failed to analyze, as was required, whether Transport Canada had accom- modated persons with character- istics of applicant without incur- ring undue hardship. Failure to analyze accommodation to point of undue hardship was both in- correct and unreasonable. Mat- ter was remitted to commission for redetermination of whether Transport Canada accommo- dated applicant to point of undue hardship. Walsh v. Canada (Attorney Gen- eral) (Feb. 23, 2015, F.C., Donald J. Rennie J., File No. T-1207-14) 251 A.C.W.S. (3d) 119. ONTARIO CRIMINAL DECISIONS Assault COMMON ASSAULT Conviction for assault, unlawful confinement and breach of recognizance upheld on appeal Accused appealed convictions for assault, unlawful confinement, and breach of recognizance. Ac- cused and complainant were in intimate relationship from 2001 to 2009. Complainant testified that, during argument, accused grabbed her by throat and threw her down on couch, striking her head on ashtray. Complainant testified that accused prevented her from leaving her apartment to go to hospital. In weeks after in- cident, complainant gave second statement to police, retracting her allegations against accused. At trial, complainant recanted her earlier recantations, claiming that she made them at accused's re- quest and because he threatened to distribute explicit photographs of her. Trial judge accepted com- plainant's evidence that she had been in "abusive relationship" with accused. Trial judge accepted that, in making allegations against accused, complainant might have been motivated by jealousy aris- ing from recent reappearance of one accused's previous girlfriend. Trial judge held that Crown had demonstrated that there was di- rect touching and application of force to complainant's neck. In subsequent trial on other charges, complainant gave yet another ac- count of incident, where she made no allegation of being choked, nor did she suggest she had been forcibly confined. In subsequent trial, Crown successfully brought application to admit complain- ant's prior statements and her testimony at current trial for truth of their contents. Accused was ac- quitted of charges at subsequent trial, partly due to complainant's contradictory and confused tes- timony. Accused argued that verdict was unreasonable. Ap- peal dismissed. Despite highly problematic nature of complain- ant's testimony, there was basis in evidence upon which trial judge could have convicted. Court was not persuaded that trial judge's ultimate conclusion was tainted by his "abusive relationship" ob- servation. Although other judges may have found inconsistencies in complainant's evidence to be fatal, court could not say that trial judge erred in approaching evidence in manner that he did. R. v. Honigan (Mar. 19, 2015, Ont. S.C.J., Trotter J., File No. SCA-13- 73-4) 120 W.C.B. (2d) 15. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Detective could rely on summary of information given to him by another officer Two accused appealed their con- victions on trafficking cocaine and possession of cocaine for pur- poses of trafficking. Both accused were arrested following police ob- servations of what they perceived to be drug transaction between two. Accused was seen to enter residence that was target of drug investigation and seen to leave with shoebox in hand. Confi- dential informant had told police man who lived at that residence was large scale drug dealer. Police followed accused as he left and about 15 minutes later, stopped his car for second accused who got in his car, then got out of car two minutes later, holding same shoebox, and drove away. Second accused was followed, stopped and arrested at gunpoint. Shoe- box was located and contained one kilogram of cocaine. Second accused's appeal was dismissed as abandoned as he had not surren- dered into custody. Accused took issue with trial judge's failure to exclude evidence and finding po- lice had reasonable grounds to ar- rest. Appeal dismissed. Detective who ordered second accused's arrest had received confidential information communicated that surveillance target was signifi- cant drug-dealer. Detective could rely on summary of information given to him by another officer in deciding whether he had grounds to make arrest. Target was ob- served at address where first ac- cused went into and emerged few minutes later with shoebox. Shoebox was later seen in second accused's possession and took it in his car and then left. Detective who ordered second accused's ar- rest, made most of these observa- tions in person, and was informed of arrest by his fellow investigating officers. R. v. Italiano (Feb. 26, 2015, Ont. C.A., M. Tulloch J.A., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C56934) 120 W.C.B. (2d) 19. Evidence CHARACTER EVIDENCE Application by Crown to introduce discreditable evidence dismissed Application by Crown to in- troduce discreditable evidence against accused who was charged with second degree murder. Ac- cused and victim shared apart- ment that was also occupied by accused's girlfriend. Victim moved into apartment where his girlfriend lived and he left behind f lat screen TV. He wanted his TV but accused refused to give it to him until he paid rent that he be- lieved victim owed to him. Victim attended at apartment where he got into altercation with accused and he died after accused stabbed him in neck with knife. Evidence that Crown wanted to introduce was from victim's mother who saw knife, similar to knife used in fight, when she helped her son move into apartment. Knife was contained in sheath mounted on wall. She asked accused what it was for and he told her it was to mess anybody up who messed around with him. Application dismissed. There was evidence that accused possessed knife and he possessed it for illegal purpose. This evidence was discreditable to accused. It was only admissible if it passed test for admission of similar fact evidence. There was no suggestion that knife on wall played any role in stabbing of vic- tim. There was also no evidence that accused ever used knife for any purpose. Mother's evidence had no credibility given that she sat through preliminary hear- ing before she gave statement to police. Evidence did not connect accused to charge. Its prejudicial effect outweighed its probative value and it would not be admit- ted into evidence. R. v. Corbett (Mar. 12, 2015, Ont. S.C.J., P.B. Hambly J., File No. 14- 4585) 120 W.C.B. (2d) 35. CONSCIOUSNESS OF GUILT Dangers associated with evidence could be addressed by appropriate instruction Application by Crown to admit evidence of deceased's mother regarding telephone conversation that she had with accused after discovery of deceased's body, and specifically question he asked her about what body had on it. Crown wanted conversation to be admit- ted as post-offence conduct of accused from which jury could draw inference of consciousness of guilt. Application allowed. Evi- dence that accused, upon learn- ing of discovery of deceased's body called deceased's mother not to express his grief or condo- lences but to ask, in agitated man- ner, series of questions regarding circumstances that surrounded discovery, including what body had on, was relevant to live issue or issues. Telephone call was ini- tiated by accused and he chose how to behave in course of it and which questions he asked. There was no element of coercion or inducement that led to conduct of accused during telephone call. Evidence had probative value and that value was not outweighed by its prejudicial effect. To remove it from jury's consideration would usurp its fact-finding function and it would be error. Dangers associated with this post-offence conduct could be adequately ad- dressed by appropriate instruc- tion on proper use of evidence to be given to jury in context of all evidence introduced at trial. R. v. Thomas (Jan. 7, 2014, Ont. S.C.J., D.A. Broad J., File No. CJ 7668) 120 W.C.B. (2d) 38. HEARSAY Diary entries had negligible probative value Accused was charged with sec- ond degree murder and sought to admit toxicology reports and diary entries made by deceased, pursuant to principled exception to rule against hearsay. Accused sought to enter diary entries to indicate deceased was unduly melodramatic and also attracted to abusive men and may have en- countered one who might have attacked her with some entries made over 11 years ago. Accused further sought admission to tem- per letter court allowed earlier in which deceased expressed her fear for her life in view of accused's pattern of abuse and death threats towards her as chilling. Court did not allow hospital record notes that deceased claimed accused physically assaulted her. Accused sought to admit toxicology re- ports of deceased but not accom- panied diary entries to indicate that deceased had predisposi- tion to engage in heavy drink- ing which led to risk-taking be- haviour. Application dismissed. Accused would be asking jury to draw conclusions from diary entries based solely on conjecture and speculation, without air of re- ality or being probative on issue of identification of perpetrator. Dia- ry entries did not describe or deal with all of relationships with men that deceased had over her adult life and could not be said that they supported inference that she had predilection for abusive men. Di- ary entries had negligible proba- tive value which was substantially outweighed by prejudicial effect of distracting jury from its cen- tral task. Regarding toxicology reports court noted that it had earlier excluded noted in hospi- tal records that deceased claimed she was physically assaulted by accused and admission of results could lead to speculation by jury as to possible causes for her ad- mission to hospital and could lead to serious jury error. Court also commented that it would not be inclined to give judicial notice that engaging in heavy drinking would lead to subsequent high risk-taking behaviour. R. v. Thomas (Sep. 15, 2014, Ont. S.C.J., D.A. Broad J., File No. CJ- 7668) 120 W.C.B. (2d) 41. LT CASELAW

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