Law Times

Law Times • June 29, 2015 Page 15 www.lawtimesnews.com lished employee was treated with civility, respect, and dignity at all times. There was no reason why good working professional relationship could not have con- tinued. Employee would have maintained her same salary and benefits and title as HPD, and even her own office if she want- ed. Employee's status would have been enhanced by her starting to report to chief planning of- ficer. This change in reporting ref lected high importance of em- ployee's job functions. Employer had right to make reasonable re- assignment of employee to other duties. Bolibruck v. Niagara Health Sys- tem (Mar. 3, 2015, Ont. S.C.J., Nightingale J., File No. 53325/11) 252 A.C.W.S. (3d) 476. Evidence OPINION EVIDENCE Doctor's reports showed advocacy Plaintiffs claimed damages for burns suffered as result of ex- plosion. On fifth day of trial photographs of burns taken on plaintiff 's admission to hospital surfaced for first time. Defen- dants consented to photographs being shown to jury. Defendants took position that doctor should not be allowed to modify his opinion based on photographs. Ruling was made that doctor could review photographs and deliver new reports. Plaintiffs wished to call doctor to give expert evidence. Defendants now objected to doctor giving evidence at all asserting that he breached duty as expert, was bi- ased and should be disqualified. Doctor was allowed to testify, but was to confine his observations, analysis and opinion to matters there were within his area of ex- pertise. Doctor was not to make personal comments about plain- tiffs' conditions and circum- stances and was to refrain from using inf lammatory language. Substance of doctor's opinions on issues on which he was quali- fied to give evidence was not af- fected by his desire to advance plaintiffs' cases. Doctor's reports showed advocacy. Language in quotations was objectionable be- cause it was inf lammatory and was used to evoke strong feelings in reader. Doctor purported to make findings of fact that were outside of his area of expertise. Doctor speculated in reports. It was not doctor's job to summa- rize medical records except as might be relevant to giving his opinion. Doctor used informa- tion selectively highlighting por- tions he thought were favourable to plaintiffs' case and leaving out portions he thought were other- wise. Lane v. Kock (Jan. 4, 2015, Ont. S.C.J., Bale J., File No. 116/08) 252 A.C.W.S. (3d) 484. Limitations GENERAL Action against WSIB statute-barred as plaintiff was aware of conduct forming basis for claim more than 15 years before action commenced Plaintiff was former employee of defendant Workplace Safety and Insurance Board (WSIB) and was also injured worker who made several claims before it. In 2011, plaintiff commenced this action claiming defendant, as his employer, acted in bad faith by deliberately withholding and failing to act on memorandum recommending functional activ- ities evaluation, subjected him to gender discrimination, and failed to accommodate his restrictions, address his increasing pain and provide safe workplace. Plain- tiff alleged defendant, as agency, wrongfully accused him of fraud and acted in bad faith and negli- gently in adjudicating his claims. Motion by WSIB for summary judgment dismissing action on basis it was statute-barred, not supported by evidence and within exclusive jurisdiction of WSIB. Motion granted. Plain- tiff 's claims were based on con- duct that he was aware of more than 15 years before action was commenced. Decisions made by tribunal had no effect on limita- tion period for civil action, plain- tiff had no need to await WSIB determination whether injury was caused by third party, as s. 28 Workplace Safety and Insurance Act (Ont.) provided no liability of employer for workplace injuries claimed by plaintiff, and plain- tiff 's pursuit of claims through defendant as agency was not alternate dispute resolution pro- cess that would extend limitation period. While plaintiff argued defendant concealed memo un- til 2011, even if this was true, document added very little to what plaintiff already knew from 1994 disclosure. To extent plain- tiff was unhappy with results of adjudication of his claims, issue was within exclusive jurisdiction of board, and his bad faith claims were statute-barred. Anderson v. Ontario (Workplace Safety and Insurance Board) (Mar. 18, 2015, Ont. S.C.J., R.D. Gordon R.S.J., File No. C11- 0023) 252 A.C.W.S. (3d) 583. Sale of Land MISREPRESENTATION Reasonable to conclude pur- chasers relied on advice from municipality and not represen- tation of vendor's principal Action concerned aborted sale of property. Parties entered into agreement of purchase and sale for $3.5 million and plaintiffs paid $100,000 deposit. Agree- ment provided no representa- tion or warranty with respect to zoning of property. After entering into agreement, pur- chasers learned property's zon- ing would not allow them to use entire space as restaurant as they desired. Purchasers advised vendors they would not close. They submitted one of vendor's principals, B, had represented entire property could be used as restaurant and if there was zon- ing problem, he would return deposit and buy back property. B denied making any represen- tations although he testified he was confident building could be used as restaurant. Purchas- ers consulted with municipality prior to entering into agreement. Purchasers commenced action for return of their deposit and damages for breach of contract. Vendor counterclaimed for dam- ages for breach of contract and declaration deposit was forfeited. Action dismissed. Counterclaim allowed. It was probable B stated purchasers should have no prob- lem with zoning for their in- tended use. However, it was rea- sonable to conclude purchasers relied on advice received from municipality and not represen- tation made by B. Any damage suffered by purchasers from pro- ceeding on basis of unwarranted confidence about zoning could not be attributed to B's remarks. It was not credible B had agreed to buy back property. Purchas- ers could not succeed on basis of alleged collateral agreements. Vendor did not fail to perform its duty to mitigate. Property was sold by mortgagee at loss. Meron v. 2182804 Ontario Ltd. (Mar. 27, 2015, Ont. S.C.J., J.M. Spence J., File No. CV-12- 456943) 252 A.C.W.S. (3d) 618. Torts MISFEASANCE IN PUBLIC OFFICE Motion to strike out claim against power corporation was dismissed Defendant Ontario Power Au- thority was corporation owned by province that formed public functions as set out in Electric- ity Act, 1998 (Ont.). Defendant was directed by Minister to de- velop fee-in tariff programs to procure energy and micro-FIT program was designed to en- courage development of small renewable energy projects. De- fendant established rules for program and amended them from time-to-time. Plaintiff was incorporated to develop and sell solar energy under micro-FIT program. Plaintiff 's customers were applicants under program whom it expended vast sums of money to recruit, and had 175 customers who had received offers to connect. Plaintiff lost all its customers and sustained financial loss when defendant announced price reduction for solar power retroactive to month prior to plaintiff 's customers' ap- plications. Plaintiff alleged mis- feasance in public office on basis amendments were unlawful as defendant's own rules provided price for power in place at time of conditional officers applied and required notice of amendments. Motion by defendant to strike out statement of claim to end ac- tion. Motion dismissed. Plaintiff pleaded defendant's steps were deliberate and unlawful, and satisfied pleading requirement misconduct was likely to injure plaintiff as it alleged defendant knew plaintiff had 175 customers with offers to connect, and that backdated operation of new rules would injure plaintiff. There was no doubt defendant had acted under Minister's direction, but it was not plain and obvious this meant rules meant nothing, or that conduct of defendant did not cause injuries claimed, nor was it plain and obvious there was not sufficient nexus between parties. Capital Solar Power Corp. v. Ontario Power Authority (Apr. 1, 2015, Ont. S.C.J., Timothy Minnema J., File No. CV-13- 59225) 252 A.C.W.S. (3d) 606. ONTARIO CRIMINAL CASES Appeal RIGHT OF APPEAL Leave to appeal denied where case turned on application of well-established legal test to specific fact situation Crown applied for leave to appeal judgment dismissing Crown's appeal from acquittal of accused on charge of driving with ex- cessive alcohol. Leave to appeal denied. Legal test for determin- ing whether breath tests were administered "as soon as practi- cable" was well established. This case turned on application of that well established test to very specific fact situation. It was far from clear to court that appeal raised question of law alone. However, even if it did, question as framed would not have any significance beyond this case. Neither trial judge, nor Sum- mary Conviction Appeal Court purported to hold that any delay associated with allowing detain- ee to contact parent would run afoul of "as soon as practicable" requirement. Instead, trial judge and Summary Conviction Ap- peal Court looked at totality of circumstances in context of "as soon as practicable" requirement in deciding whether officer acted reasonably. R. v. Crewson (Apr. 17, 2015, Ont. C.A., Doherty J.A., Cronk J.A., and Hourigan J.A., File No. CA C59450) Leave to appeal from 115 W.C.B. (2d) 223 was refused. 121 W.C.B. (2d) 23. Trial ACCUSED NOT REPRESENTED BY COUNSEL Accused could not afford to retain counsel to extent neces- sary to ensure fair trial Accused charged with four counts of trafficking in cocaine and oxycodone and possession of proceeds of crime. Accused applied for appointment of state- funded counsel. Legal Aid had denied funding to accused, as his income of $13,200 per year exceeded its financial cut-off. Accused had grade nine educa- tion and had entered workforce as labourer when he was 14 years old. Accused had received dis- closure, and said that he could not make much of it. Allegations involved sales of drugs to under- cover operators, and issues were potentially defence of entrap- ment and Charter claims. Crown had indicated to accused that his offences should have attracted four-year sentence in peniten- tiary. Accused argued that com- plexity of case arose from tactical decisions involving possibility of calling co-charged individu- als as witnesses at trial. Crown argued that accused had means to pay counsel, but refused to al- locate his own money properly for that purpose. Application allowed. Although it appeared that accused's chances for bail on review were low, it could not be said that they were non-existent. Court could not accept that ac- cused should have had to give up everything he had, including his apartment, in order to satisfy court that he was doing every- thing he could to fund lawyer. There was evidence that accused had, over time, satisfied out- standing accounts owing to Le- gal Aid, and it could not be said that he had not been mindful of his duty to contribute financially to his own defence when that had been required of him. Given accused's modest level of educa- tion, his working background as labourer, difficulties inherent in mounting entrapment defence, and likelihood of significant sentence of imprisonment upon conviction, case would have been complex for accused to defend, and carried serious consequenc- es for him. For accused not to have counsel at trial would have resulted in trial unfairness, as ac- cused would not have been able sufficiently to understand case he had to meet or to present any defences available to him, and would have been subject to very serious consequences upon con- viction. This was rare case where court was satisfied that accused, because of length and complex- ity of proceedings, or for other reasons, could not afford to re- tain counsel to extent necessary to ensure fair trial. R. v. Davidson (Apr. 22, 2015, Ont. S.C.J., A.D. Kurke J., File No. 7483/14) 121 W.C.B. (2d) 97. CHARGE TO JURY Non-direction by judge to jury fatal to sexual interference convictions Accused appealed his convic- tions of sexual interference com- mitted against four year old and five year old daughters of his girlfriend. Appeal was primar- ily based on trial judge failing to instruct jury that evidence of one complainant was not admissible on counts relating to other and that it could not use propensity reasoning to support its verdicts. Appeal allowed, new trial or- dered. Non-direction by judge to jury on issue argued on appeal was fatal to sexual interference convictions. Silence about what jury could not do with evidence of one complainant in relation to that of other led to unsustain- able verdict. Given similarities between allegations, there was real danger that absent adequate warning, jury might improperly consider evidence of one of com- plainants as corroborative of that of other. R. v. M. (J.R.) (Apr. 8, 2015, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and C.W. Hourigan J.A., File No. CA C58274) 121 W.C.B. (2d) 95.. LT CASELAW

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