Law Times

Law Times • July 13, 2015 Page 19 www.lawtimesnews.com and specific deterrence were critical, as protection of pub- lic had to play most important role. While this was not regula- tory offence or innocent pos- session, and was closer to true crime end of spectrum, there was no evidence that accused used firearm in conjunction with drug trafficking or to fa- cilitate some other criminal activity. Possession of weapons was not momentary lapse of judgment. Court had duty to protect public from firearms and from people who casually carried them and took them out in public. Exemplary sentence was necessary, even for first of- fender. R. v. Beals (May. 4, 2015, Ont. S.C.J., R.F. Goldstein J., File No. CR-14-30000756-0000) 121 W.C.B. (2d) 303 Trial CONDUCT OF TRIAL Trial judge's comments and con- duct of own research created reasonable apprehension of bias Accused charged with sexual assault and other offences. Tri- al judge convicted accused of lesser offence of assault. Trial judge immediately had private meeting with officer in charge. Trial judge told officer he had created fake profile on dating website used by complainant. Trial judge said defence counsel could "hang" complainant with information available on site. Appeal from acquittal allowed. Trial judge's comments and conduct of his own research cre- ated reasonable apprehension of bias. R. v. H. (C.D.) (Feb. 13, 2015, Ont. C.A., J.I. Laskin J.A., K. Feldman J.A., and J. Simmons J.A., File No. CA C58443) 121 W.C.B. (2d) 316. ONTARIO CIVIL CASES Civil Procedure DISCOVERY Defendant failed to show why additional medical records rel- evant to issues on certification Plaintiff commenced class ac- tion on behalf of all persons who were implanted in Canada with defendant's metal-on-metal hip products. Plaintiff had filed six affidavits, including his personal affidavit describing his experi- ences with defendant's metal- on-metal hip implants. Attached to personal affidavit were six pages of medical records that were generated at time of his third surgery that also included brief synopsis of plaintiff 's first two surgeries and his experi- ence with implants that were installed. In response to request from defendant, plaintiff had provided some additional medi- cal information such as product code labels for hip implant com- ponents that were allegedly used in plaintiff 's first and second hip surgeries. Certification mo- tion was scheduled to proceed in September 2015. Defendant had filed motion for summary judgment asking that action be dismissed in its entirety. Defen- dant brought motion for all of plaintiff 's medical records relat- ing to his hips, his hip surgeries, and their outcomes and con- sequences. Motion dismissed. Bald assertions aside, defendant failed to show how or why ad- ditional medical records would assist the court or were in any way relevant to issues on certifi- cation. Dismissal of motion was without prejudice to defendant's right to pursue records again on cross-examination. If they were refused and if defendant could show they were indeed relevant to certification, matter could be revisited on proper refusals mo- tion. Dine v. Biomet Inc. (Apr. 15, 2015, Ont. S.C.J., Edward P. Belobaba J., File No. CV-13-490112-CP) 252 A.C.W.S. (3d) 652. Contempt of Court GROUNDS Respondent demonstrated inten- tion to carry out and satisfy order Applicants purchased two new adjoining townhouses. Appli- cants noticed extensive water penetration at properties and made claim to respondent. Re- spondent investigated and de- nied applicant's claim for water penetration. On appeal, tribunal directed respondent to carry out necessary steps to determine cause of water penetration and to ensure that necessary repairs were completed. Applicants brought motion for order find- ing respondent in contempt of tribunal's order. Motion dis- missed. Order was clear on its face. However, there was no evidence that respondent will- fully and deliberately disobeyed tribunal's order. Respondent had taken numerous steps to identify cause of water penetration and repair leakage. There was no evi- dence that showed contempt be- yond reasonable doubt. Respon- dent demonstrated intention to carry out and satisfy order. Cheng v. Tarrion Warranty Corp. (Mar. 10, 2015, Ont. S.C.J., Car- ole J. Brown J., File No. CV-14- 514780) 252 A.C.W.S. (3d) 699. Employment WRONGFUL DISMISSAL Motion judge identified and applied all relevant factors in determining 16 months was appropriate notice period Employee was employed by em- ployer and predecessor firms for uninterrupted period of 16 years. Employee's employment was terminated without cause. Employee, aged 58, commenced wrongful dismissal action and brought motion for summary judgment. Motion judge grant- ed partial summary judgment. Motion judge found reasonable notice period to be 16 months and found that employee made reasonable efforts to mitigate. Employer appealed. Appeal dismissed. Motion judge did not apply rule of thumb of one month per year, but considered all relevant factors in determin- ing reasonable notice period. Motion judge did not mischar- acterize employee's position when he concluded that it was specialized and technical. Mo- tion judge identified and applied all relevant factors in determin- ing that 16 months was appro- priate notice period. All relevant evidence respecting mitigation was before motion judge and only reasonable conclusion was that employee acted reasonably in mitigating his losses. It was not manifestly unfair for mo- tion judge to determine issues in summary manner. Motion judge had full evidentiary record and there was no credibility or factual issues relevant to period of reasonable notice or mitiga- tion. Motion judge did not err in approach, reasoning or conclu- sions. Beatty v. Best Theratronics Ltd. (Apr. 14, 2015, Ont. C.A., E.E. Gillese J.A., K. van Rensburg J.A., and G. Pardu J.A., File No. CA C59117) Decision at 241 A.C.W.S. (3d) 374 was affirmed. 252 A.C.W.S. (3d) 735. Environmental Law ENFORCEMENT Tribunal's reasons for choosing remedy not understandable Respondent director for Min- istry of Environment granted respondent O renewable energy approval (REA) that allowed it to construct and operate wind farm that consisted of nine wind turbines on parcel of Crown land. Appellant opposed project and appealed director's decision to grant REA. Environmental review tribunal found that proj- ect would not cause serious and irreversible harm to birds and plants, but would cause serious and irreversible harm to Bland- ing's turtle and revoked REA. Divisional Court dismissed appellant's appeal but allowed appeal of O and director. Divi- sional Court set aside tribunal's finding of serious and irrevers- ible harm to turtles and revo- cation of REA. Appellant ap- pealed. Appeal allowed in part. Divisional Court erred in find- ing that tribunal erred in failing to engage in separate analysis of serious harm and irreversible harm. Whether project would cause serious harm did not re- quire analysis and tribunal's analysis focused on whether harm was irreversible. Tribunal could reasonably accept expert evidence that project would cause serious and irreversible harm without having specific numerical data on turtles' pop- ulation size, volume of traffic and rate of mortality. Tribunal's reasons for accepting opinions of experts were intelligible and its conclusion that there would be serious and irreversible harm was reasonable and should not be disturbed. Tribunal carefully considered mitigation mea- sures required by permit under Environmental Protection Act (Ont.), and concluded that they would be incomplete and inef- fective. Tribunal exercised in- dependent judgment and found that evidentiary value of permit was outweighed by expert evi- dence. Tribunal carried out its distinct statutory mandate and Divisional Court erred in how it dealt with permit. However, tribunal's reasons for choosing remedy were not understand- able and choice of remedy was unreasonable. Tribunal adopted limited view of its remedial pow- er or considered that it lacked in- formation necessary to exercise its choice of remedy. Matter was remitted back to tribunal to de- termine remedy. Prince Edward County Field Nat- uralists v. Ostrander Point GP Inc. (Apr. 20, 2015, Ont. C.A., Cronk J.A., Juriansz J.A., and Epstein J.A., File No. CA C59008) Deci- sion at 237 A.C.W.S. (3d) 672 was reversed in part. 252 A.C.W.S. (3d) 737. Family Law SUPPORT Nothing indicated parental rela- tionship existed during marriage Wife had two children from prior relationship. Husband was self-employed. Husband and wife started cohabiting in joint- ly-owned home in 1999, and married in 2001. Parties paid different expenses instead of sharing all expenses. Wife paid for children's expenses. Parties separated in March 2009, but remained in home until wife and children moved in Novem- ber 2009. Wife brought applica- tion for child support. Applica- tion dismissed. Husband had not stood in place of parent to children. Nothing indicated pa- rental relationship existed dur- ing marriage. Children always referred to husband by his first name. Children's biological fa- ther was always very involved with children and paid child support without fail. There was very little evidence that husband had assumed important paren- tal obligations to or responsibili- ties for children. Husband never provided benefits for children nor included them in his will. Children had no contact with husband after separation. It was not sufficient that husband lived with wife and children for ten years. Laframboise v. Laframboise (Mar. 24, 2015, Ont. S.C.J., J. Mackinnon J., File No. FC-11- 2274) 252 A.C.W.S. (3d) 762. Municipal Law COUNCILLORS Respondent breached s. 5(1) of Municipal Conflict of Interest Act Applicant was resident of town and respondent was munici- pal councillor until election. Respondent's husband was fire chief for town. Applicant as- serted respondent breached Municipal Conf lict of Interest Act (Ont.). Applicant asserted respondent failed to declare pe- cuniary interest in and did not refrain from voting on two reso- lutions to increase pay for em- ployees of town, which would increase salary of respondent's husband. Applicant asserted respondent did not declare pe- cuniary interest in, and voted against resolution concern- ing implementation of opera- tional review of town services that could have impacted fire department. Applicant sought to remove respondent from of- fice before election. Applicant sought to ban respondent from standing for office for period of greater than four years if she were found to have breached Act. Application granted. Respon- dent breached s. 5(1) of Act and was not entitled to exception. As respondent knew her husband would benefit from increase, his pecuniary interest would be her pecuniary interest. Town's fire department was enacted as volunteer fire department, and town's fire department could be regarded as volunteer fire brigade for purposes of Act. Section 4(i) was not available to respondent as defence because she was not personally member of volunteer firefighting bri- gade. There was no evidence as to scope of operational review and its reach to fire department to justify finding that respon- dent's husband as fire chief or respondent by virtue of s. 3 of Act had pecuniary interest in resolution. Section 10(2) applied only to mitigate penalty but not to ameliorate contravention of s. 5(1). Finding that respondent acted in contravention of s. 5(1) through inadvertence or by rea- son of error in judgment did not excuse her from contravening her duty as member of council. Respondent did not show that her failure arose through inad- vertence. Adamiak v. Callaghan (Dec. 16, 2014, Ont. S.C.J., Emery J., File No. Guelph 172/14) 252 A.C.W.S. (3d) 838. Professsions BARRISTERS AND SOLICITORS Claim that Law Society acted outside its jurisdic- tion should first be brought before Law Society tribunal Applicant was self-represented lawyer against whom discipline proceedings had been com- menced. Applicant was called to bar in 1985 and had, until recently, unblemished disci- pline record with Law Society. Applicant brought application seeking interpretation of his obligations under s. 49.3 of Law Society Act (Ont.). Application dismissed. Judicial review was disguised as interpretation ap- plication and was not appropri- ate procedure to resolve factual disputes. Claim that Law Soci- ety was acting outside its juris- diction should be brought first before Law Society Tribunal. In absence of extraordinary circumstances, courts should avoid regulating interlocutory orders or proceedings of admin- istrative tribunals prematurely. Cusack v. Law Society of Up- per Canada (Mar. 30, 2015, Ont. S.C.J., Perell J., File No. CV-14- 510396) 252 A.C.W.S. (3d) 813. LT CASELAW

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