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Law Times • JuLy 13/20, 2009 Mental Health COMMITTEE Board's direction to comply with requests in power of attor- ney was upheld on appeal Individual suffered severe neu- rologic impairment. Individual received treatment in intensive care unit. Son was individual's substitute decision-maker. Physicians applied to board for determination whether son was complying with principles for giving or refusing consent under Health Care Consent Act, 1996 (Ont.). Board de- termined son did not comply. Board directed son to comply with requests in power of attor- ney for personal care and with treatment withdrawal process proposed by physicians. Son's appeal was dismissed. Board fully discharged duty to advise appellant of right to have coun- sel at hearing. Board provided parties fair opportunity to deal with new treatment plan. It was unreasonable for board to con- clude that 1995 power of attor- ney expressed wishes of patient for purposes of s. 21(1)1 of Act. Balance of reasons were reason- able and supported by evidence. Board's conclusion appellant's actions as substitute decision- maker were not in best interests of individual was reasonable. Appellant was directed to give or refuse consent to treatment for individual in accordance with treatment plan. Barbulov v. Cirone (Apr. 9, 2009, Ont. S.C.J., Brown J., File No. 03-012/09) Order No. 009/103/101 (27 pp.). Municipal Law COUNCILLORS Mayor did not act in conflict of interest Application for declaration that mayor acted in conflict of interest contrary to Municipal Conflict of Interest Act (Ont.). Applicant had sued munici- pality for wrongful dismissal, though action settled June 2006. Days later, applicant ap- pealed municipality's decision not to conduct compliance audit into mayor's campaign finances. In November 2007, applicants alleged that mayor participated in closed session meeting where council decided to sue applicant for $395,000 alleging non-compliance with June 2006 settlement. At issue was whether mayor's participa- tion in that decision, if any, was improper by reason of having "indirect pecuniary interest" in action against applicant. Appli- cation dismissed. No evidence that mayor anything but pres- ent at closed session meeting. Attendance alone insufficient to raise conflict. Mayor had no personal interest in court action against applicant, except inter- est shared commonly by other counsellors and electors. Alle- gation that mayor had personal pecuniary interest to extent that municipality's action could dis- courage applicant's appeal too remote. In any event, defence of inadvertence under s. 10(2) of Act applicable. Ruffolo v. Jackson (Apr. 14, 2009, Ont. S.C.J., Kelly J., File No. 08-CV-00357881) Order No. 009/106/003 (8 pp.). Police DISCIPLINE Ontario Civilian Commission of Ontario properly interpreted and applied provision of Police Services Act (Ont.) related to prior disciplinary record Appeal from Ontario Civil- ian Commission of Ontario ("OCCO") finding that appellant S.H. guilty of misconduct. Cross- appeal by Toronto Police Service of OCCO reduction of penalty from seven days' forfeiture to three. S.H. found to have made Canadian Po- lice Information Centre ("CPIC") inquiries on wife's behalf contrary to Rule 4.13.1 of Toronto Police Service's Rules. Appeal dismissed. OCCO properly applied Rule 4.13.1's requirement that CPIC be used exclusively for police business, and did not create new conduct standard on public policy grounds. OCCO not unreason- able in finding that there were no compelling safety issues at time of CPIC inquiries. Sufficient evi- dence to support OCCO's find- ing that inquiries not exclusively police business. OCCO consid- ered and did not misapprehend evidence related to S.H.'s defence of honest belief, but reasonably rejected S.H.'s bald assertion of it. Cross-appeal dismissed. S.H. found to have made Canadian Po- lice Information Centre ("CPIC") inquiries on wife's behalf contrary to Rule 4.13.1 of Toronto Police Service's Rules. Appeal dismissed. OCCO properly interpreted and applied s. 64(16) of Police Ser- vices Act (Ont.), related to S.H.'s prior disciplinary record. "Entry concerning misconduct" within meaning of s. 64(16) not includ- ing laying of charge or service of notice of hearing. Hampel v. Toronto Police Service (Apr. 3, 2009, Ont. S.C.J. (Div. Ct.), Jennings, Wilson and Kara- katsanis JJ., File No. DC-08-434) Order No. 009/105/432 (10 pp.). LABOUR RELATIONS Court did not have jurisdiction to deal with complaint Plaintiff was terminated from em- ployment. Plaintiff was member of defendant at time of termination. Plaintiff was covered by collective agreement between defendant and board. Plaintiff bought action for damages for breach of duty to fair representation. Defendant sought to have action dismissed on ground court had no jurisdiction because employment relationship was governed by terms of collective agreement. Action was dismissed. Court did not have jurisdiction to deal with complaint. Dispute was covered by collective agreement. There was no gap between collec- tive agreement and Police Services Act (Ont.), that would give court jurisdiction to hear matter as civil cause of action. Ali v. Toronto Police Assn. (Apr. 20, 2009, Ont. S.C.J., Kelly J., File No. 06-CV-303807 PD3) Order No. 009/119/040 (4 pp.). Professions BARRISTERS AND SOLICITORS Lawyer alone gave undertaking and was responsible for decision to breach it Client brought lawsuit against insurance company. Claim was settled by insurer paying costs CASELAW of $36,000. Client claimed law- yer agreed to split amount with client. Lawyer claimed client "blackmailed" lawyer into of- fering to split amount. Lawyer gave undertaking to lawyer for insurance company that none of money would go to client. Client was entitled to $16,507. Law- yer's evidence that lawyer was "blackmailed" into fee sharing arrangement was not accepted. Evidence that cheque for have costs was released to client and later returned by client was not accepted. Client's evidence there was agreement to split costs was accepted. In absence of specific agreement between parties as to how settlement was to be appor- tioned, 50/50 split of settlement was fair. Agreement between par- ties was made before agreement with insurer. Parties were not in pari delicto. Lawyer alone gave undertaking and lawyer alone was responsible for decision to breach it. There was no basis for award of punitive damages. Crabb v. Ellis (Apr. 6, 2009, Ont. S.C.J., Strathy J., File No. 07-CV-340000SR) Order No. 009/103/084 (32 pp.). FEDERAL COURT Administrative Law DUTY TO ACT FAIRLY Private law contract did not attract public duty of fairness Application for judicial review of decision of respondent Band Council ordering eviction of applicant from leased premises on Rama First Nation Reserve. Applicant was status Indian and member of band. Band provided social housing for benefit of low- income members. Band and ap- plicant entered into agreement for lease of premises subject to payment of rent by applicant. Because of neurological illness applicant was incapable of work and needed support and accom- modation to live independently. Applicant lived in unhealthy conditions and repeatedly re- lied on emergency services for assistance. Applicant also in- curred rental arrears. Band of- ficers consulted with applicant's mother and brother about need to move applicant to long-term care facility. Band Council served applicant with eviction order requiring him to vacate premises. Applicant argued that council owed public law duty of fairness to him and it failed to discharge duty prior to evic- tion. Application for judicial review dismissed. Parties entered into private law contract dealing with applicant's right to occupy premises. Agreement specifically provided for consequences in event applicant could no longer look after himself in premises. As private law contract, agreement did not attract public duty of fairness. Council was therefore under no obligation to provide hearing concerning enforcement of terms of contractual relation- ship with applicant. Cottrell v. Chippewas of Rama Mnjikaning First Nation Band Council (Mar. 16, 2009, F.C., Russell J., File No. T-1682-07) Order No. 009/096/109 (35 pp.). www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM FREEDOM OF INFORMATION Decision to redact portions of human rights report on Afghanistan prior to applicant's release was reasonable Application for review of Min- ister of Foreign Affairs ("MFA") decision to redact portions of De- partment of Foreign Affairs and International Trade's ("DFAIT") human rights report on Afghani- stan prior to release to applicant. Redacted portions, less than 10% of 103 pages, described as including evidence of torture and human rights violations in Afghanistan. Applicant sought disclosure in pursuance of aca- demic research. DFAIT relying upon ss. 13(1) and 15(1) of Ac- cess to Information Act (Can.), and refused full disclosure on ba- sis that information obtained in confidence or disclosure injuri- ous to conduct of international affairs and defence. Application dismissed. Section 2(b) of Ca- nadian Charter of Rights and Freedoms does not encompass general right to access informa- tion held by government insti- tutions. DFAIT not required to consider "Charter values" in exercise of discretion under s. 15(1) of Access to Information Act (Can.), since no ambiguity in that provision. DFAIT's de- cision reviewable against rea- sonableness standard. DFAIT's decision reasonable under s. 15(1) of Act. Court unwilling to substitute own opinion for evidence from military com- manders that disclosure of re- dacted information related to Afghan military, intelligence agency and police forces could be injurious to conduct of in- ternational affairs with those PAGE 19 agencies. Production of por- tions previously publicly dis- closed ordered in absence of evidence of repercussions or reactions to date. Attaran v. Canada (Minister of Foreign Affairs) (Apr. 2, 2009, F.C., Kelen J., File No. T-2257- 07) Order No. 009/105/477 (32 pp.). Intellectual Property Industrial And COPYRIGHT Plaintiff granted default judgment in copyright and trade mark infringement action Motion for default judgment in action for damages for copyright and trade mark infringement. Plaintiff computer software company alleged that defendant retailers had been selling and distributing unlicensed copies of software. Motion granted. Plaintiff was awarded damages in amount of $10,000 per copy- right violation were awarded against each retailer and its em- ployee jointly and severally, and punitive damages in amount of $50,000 against all defendants jointly and severally. First retail defendant was guilty of seven copyright violations and sec- ond retail defendant was guilty of eight copyright violations. Amount of statutory damages reflected bad faith of defen- dants and their disregard rights of plaintiff. Given conduct of defendants, it was appropriate that conduct be condemned by means of significant punitive damage award. Microsoft Corp. v. PC Village Co. (Apr. 22, 2009, F.C., Mandamin J., File No. T-306-06) Order No. 009/124/110 (17 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. Find them, instead, in BestCase, a web-based research service containing Canada's leading law reports and renowned case summary services as well as a comprehensive collection of unreported decisions dating back to 1977, and a case citator feature. 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