Law Times

Law Times • sepTember 8, 2015 Page 15 www.lawtimesnews.com tion with creating merged list and for loss of chance to imple- ment merged seniority list. Trial judge dismissed action. Plaintiffs appealed. Appeal dismissed. Trial judge did not err in finding that members of sub-class six did not breach contracts with CALPA in at- tempting to avoid implemen- tation of arbitration awards. Terms of contractual relation- ship between rank-and-file members of sub-class six and CALPA must be interpreted in light of statutory right of union members to choose union and law principle affording right to dissent to union members. Constitution and merger pol- icy did not expressly require members of sub-class six to act to implement merged se- niority list or to refrain from impeding implementation of merged list and such term should not be implied. Mem- bers of sub-class six did not breach contracts with CALPA in voting to form ACPA and in taking other steps to avoid implementation of merged se- niority list. There was no basis to interfere with trial judge's conclusion that sub-classes two and four did not breach merger policy. Trial judge did not err in her causation analy- sis. Air Canada had to agree to merged list and its opposi- tion to merged seniority list pre-dated arbitration award. Trial judge was entitled to ac- cept evidence that Air Can- ada would not have accepted merged seniority list. Chance of implementing merged se- niority list did not arise above de minimis threshold. Trial judge's reasons for concluding that plaintiffs' chance of im- plementing merged seniority list did not exceed de minimis threshold was fully supported by evidence and was logically sound. Plaintiffs were not en- titled to merger expenses, as defendants' wrongful conduct did not cause merger expenses. Berry v. Pulley (Jun. 19, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., David Watt J.A., and David Brown J.A., File No. CA C55933) Decision at 218 A.C.W.S. (3d) 993 was af- firmed. 255 A.C.W.S. (3d) 513. ONTARIO CRIMINAL CASES Assault ASSAULT WITH WEAPON No basis to interfere with trial judge's rejection of accused's evidence Accused appealed his convic- tion for aggravated assault and assault with weapon arising from incident outside bar. Eye injury to aggravated assault complainant could have been inf licted only by accused or by T. Not single witness said T was assailant. Complainant, whom trial judge found credible and whose evidence he accepted, said that though he had had confrontation with T both in and out of taxi, he was certain that T was not assailant. T de- nied that he was assailant and second complainant identi- fied accused as assailant. Thus, evidence of three key witnesses in this case all pointed to ac- cused as being assailant. Ap- peal dismissed. From reading trial judge's reasons court was satisfied that he applied rea- sonable doubt standard to ac- cused's two statements. Trial judge rejected accused's evi- dence in his police statements because of various inconsisten- cies he identified. Few of these inconsistencies seemed minor, but court agreed with Crown that on critical points, for ex- ample, when accused first saw blood and how fight unfolded, accused's evidence changed significantly during course of his statements. Thus, court saw no basis to interfere with trial judge's rejection of accused's evidence. Trial judge could perhaps have said more about assault with weapon complain- ant's evidence but these were oral reasons given after rela- tively short trial. Trial judge recognized that complainant was drunk but accepted that he could identif y perpetrator of this horrific incident and did not err in his acceptance of complainant's evidence. Simi- larly trial judge was entitled to accept T's evidence which was consistent with first complain- ant's evidence which trial judge believed. R. v. Hockey (May. 26, 2015, Ont. C.A., John Laskin J.A., J. MacFarland J.A., and Paul Rouleau J.A., File No. CA C58248) 122 W.C.B. (2d) 526. Mental Illness GENERAL Board's conclusion that accused posed significant threat to pub- lic safety was reasonable Accused appealed disposi- tion of review board which ordered that she be detained on secure forensic unit until her condition had improved so as to warrant transfer to general forensic unit. Accused was found not criminally re- sponsible on account of mental disorder on charges of uttering threats and assaulting peace officer with intent to resist ar- rest. Board concluded that ac- cused posed significant threat to public safety given that she committed and threatened acts of physical violence and she continued to have active, untreated persecutory delu- sions. Board accepted evidence from forensic psychiatrist that accused's symptoms affected her behaviour and required her to be detained in secure fo- rensic unit. Board determined that conditional discharge was not appropriate given ac- cused's symptoms and fact that she had recently been declared not criminally responsible and had not been treated. Accused argued that board failed to im- pose least onerous and least re- strictive disposition. Accused argued that board relied upon inadmissible hearsay in arriv- ing at its disposition. Amicus curiae argued that board failed to give meaningful consider- ation to conditional discharge. Appeal dismissed. Board's conclusion that accused posed significant threat to public safety was reasonable and sup- ported by evidence given that she suffered from active perse- cutory delusions that remained untreated. Without treatment, which accused continued to refuse, there was ongoing risk of violence. There had been subsequent threats of violence by accused, including threat to her mother and assertion that she would "do anything" to de- fend herself when threatened by others. Amicus advocated overly-restrictive approach to evidence review board may consider. While information from police occurrence report was form of hearsay evidence, review board enjoyed wide latitude to receive hearsay evi- dence because of its inquisito- rial rather than adversarial process. Information about prior behaviour that led to police involvement was useful in assessing whether accused posed significant threat to safe- ty of public and in determining appropriate disposition. Board did not simply rely on fact that accused had been charged criminally on prior occasions, nor did it accept without ques- tion all of facts alleged in oc- currence reports. Board, in referring to "necessary and ap- propriate disposition", simply tracked language of amended Criminal Code provision, and there was no reason to be- lieve that lesser standard ap- plied. Board did not fail to give meaningful consideration to conditional discharge. In cir- cumstances where accused denied her mental illness, re- fused treatment, suffered from active and expanding persecu- tory delusions, and continued to believe that her aggressive responses to perceived threats were justified, there was no air of reality to appropriateness of conditional discharge. Ranieri, Re (Jun. 18, 2015, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and K. van Rens- burg J.A., File No. CA C59183) 122 W.C.B. (2d) 569. Sentence SEXUAL OFFENCES Judge's sentence of seven years for repeated acts of sexual assault over extended period of time was fit Appeal by accused from con- victions and sentences im- posed on him after he was con- victed on all counts of 14 count indictment. Accused was con- victed of various counts of indecent assault against four complainants and one count of buggery in relation to two of complainants. He was sen- tenced to seven years of impris- onment. Accused was hockey coach and he committed of- fences between 1968 and 1978. Appeal dismissed. Judge's sentence of seven years for re- peated acts of sexual assault over extended period of time, which included fondling, oral sex, and one incident of anal intercourse in respect of each of two complainants was not outside range and it was fit. She properly took into account ac- cused's age but refused to give him "senior's discount". How- ever, judge put accused on sex offender registry for life. Judge erred and order was reduced to 20 years. R. v. Dimmick (Jun. 4, 2015, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and K. van Rensburg J.A., File No. CA C57990) 122 W.C.B. (2d) 519. Theft and Possession THEFT Since accused was convicted of fraud, he should not have been also convicted of theft Appeal by accused from his convictions for fraud over $5,000 and theft in relation to his home renovation business. Victim, who was 76 years old, lived alone in house that she owned for 30 years. She had mental illness and her financial advisor restricted her to with- drawing $1,000 per month. Victim called accused on Au- gust 13, 2008 after she received his brochure. She signed three renovation contracts and she paid $301,000 to accused. Af- ter November 5, victim's men- tal health began to deteriorate and she was admitted to hos- pital. She never returned to her home and she moved to nurs- ing home. On November 19, 2008 accused left note on vic- tim's fridge saying that all work would be stopped on next day. None of work was completed, much of work that was done was deficient and house was uninhabitable. Accused never did any more work and he did not refund any of money paid by victim. Appeal allowed in part. Since accused was con- victed of fraud, which was de- liberate deception, he should not have been also convicted of theft since victim voluntarily gave him funds. Therefore, only conviction for fraud was upheld. R. v. Singer (Jun. 10, 2015, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and K. van Rens- burg J.A., File No. CA C57239) 122 W.C.B. (2d) 523. FEDERAL COURT Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORIT Y Nursing station fell under federal jurisdiction using functional test Applicant was First Nation that operated its own nurs- ing station. Respondent be- gan working for applicant as clinic nurse at nursing station. Respondent's contract was renewed multiple times but she was told that her contract would not be renewed when it expired. Respondent brought claim for unjust dismissal against applicant pursuant to Canada Labour Code. Adju- dicator found that he had ju- risdiction to hear respondent's claim and awarded damages to respondent. Applicant applied for judicial review. Application dismissed. This was true ques- tion of jurisdiction to be re- viewed on standard of correct- ness. Adjudicator's decision that respondent's complaint fell under federal jurisdiction and that he had jurisdiction to assess complaint merits was correct. Code applied in re- spect of employees who were employed on or in connection with operation of any federal work, undertaking or business. Canadian courts recognized that labour relations were pre- sumptively provincial matter. Pursuant to s. 91(24) of Con- stitutions Act, 1867 (Can.), Parliament had exclusive juris- diction over Indians and lands reserved for Indians. Question before adjudicator was wheth- er nursing station was part of Band's operations in respect of Indians and lands reserved for Indians or whether it was sepa- rate undertaking. Adjudicator correctly found that nursing station came under federal ju- risdiction either directly or de- rivatively. Nursing Station was part of or integrally connected to Band and therefore subject to federal jurisdiction. Nurs- ing Station was way in which applicant executed its mandate to provide healthcare services to residents and it was exer- cising power delegated to it by Parliament pursuant to Indian Act (Can.), which directly fell under federal jurisdiction. Ad- judicator was correct in find- ing that he had jurisdiction to hear matter given that nurs- ing station fell under federal jurisdiction using functional test. Nursing station was one of ways, if not most impor- tant way, in which applicant, federally regulated entity, ful- filled its mandate to provide healthcare to residents. Only provincial involvement was that nurses were provincially licensed and provincial gov- ernment had no operational involvement with nursing sta- tion. Nursing station was part of applicant because it did not operate separate, distinct or autonomous unit and it fell directly under federal jurisdic- tion. Alternatively, nursing sta- tion was integral part of core federal undertaking that was applicant and fell derivatively under federal jurisdiction. Choice of law clause included by parties in employment con- tract confirmed that federal ju- risdiction applied. Berens River First Nation v. Gib- son-Peron (May. 8, 2015, F.C., Cecily Y. Strick land J., File No. T-1933-14) 255 A.C.W.S. (3d) 471. LT CASELAW

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