Law Times

Page 14 November 9, 2015 • Law Times www.lawtimesnews.com Perell J., File No. 05-CV-4340, 10-CV-15178CP) 257 A.C.W.S. (3d) 526. Crown LIABILITY Crown 85 per cent liable for injuries to inmate Plaintiff was sent to pre-trial de- tention facility operated by de- fendant province. Plaintiff was known to be low-level member of particular street gang. Plain- tiff was assigned to particular unit pursuant to policy requir- ing gang members to be dis- tributed as evenly as possible throughout facility. Plaintiff learned R, who was high-level member, if not leader, of rival street gang, was being housed in same unit. During prior period of incarceration, plaintiff had re- quested protective custody, pre- sumably for gang-related con- cerns. Plaintiff did not request protective custody or alternative placement on current occasion. Plaintiff was attacked from be- hind by one person, dragged to another area, subjected to vi- cious beating by several people, and left unconscious. Plaintiff suffered severe injuries and was left hemiplegic with acute aphasia. Plaintiff brought action against defendant for damages for negligence. Action allowed. Plaintiff was awarded 85 per cent of agreed-upon damages after reduction by 15 per cent for contributory negligence. Parties agreed Crown owed duty of care to inmates while in its custody. Policy with respect to housing inmates with particular security risks fell squarely within catego- ry of policy decisions and was not justifiable. Policy was not unreasonable insofar as it was made bona fide and was not so irrational or patently unreason- able as to constitute improper exercise of governmental dis- cretion. Nonetheless, failure to take circumstances into account while fulfilling policy's distribu- tion requirement amounted to negligent conduct. Inmate com- patibility on basis of what was known or ought to have been known should have formed part of calculus. Plaintiff 's failure to request protective custody or alternative placement did not completely absolve defen- dant from liability. Defendant ought to have known R posed risk to rival gang members. R had been charged with murder and attempted murder in gang context, and he had engaged in extensive misconduct while in custody. Further, special secu- rity measures had been imple- mented for some of R's court appearances. R likely had role in attack. Layout of facility itself al- lowed for prolonged attack to go undetected. Injuries sustained by plaintiff were direct result of defendant's negligence. Walters (Litigation guardian of) v. Ontario (Aug. 4, 2015, Ont. S.C.J., Gans J., File No. CV-09- 378388) 257 A.C.W.S. (3d) 588. Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Mandatory revocation provi- sion in Health Professions Procedural Code did not intrude into federal jurisdiction Appellant pharmacist was in- volved in consensual sexual re- lationship with patient. Sexual activity between health profes- sional and patient constitutes sexual abuse under Health Pro- fessions Procedural Code and results in mandatory revocation of health professional's certifi- cate of registration. Appellant challenged constitutional va- lidity of mandatory revocation provision, claiming that Code intruded into federal jurisdic- tion over criminal law. Appel- lant's application was dismissed. His appeal was also dismissed. Application judge properly ad- opted 'pith and substance analy- sis' of challenged legislation. He correctly considered both pur- pose and effects of Code. Ap- pellant did not challenge judge's finding that mandatory revoca- tion provisions are concerned with protection of public by im- position of clear and unequivo- cal standards of professional behaviour. He argued, however, that judge's effects analysis was too narrow. He claimed that ef- fect of mandatory revocation not only terminates person's livelihood but carries with it substantial stigma due to its tie to sexual abuse. As a result, it crosses over line from permis- sible regulation of profession into impermissible regulation of morality in context of con- sensual sexual relations, thereby entering realm of federal crimi- nal law. Code does not have ef- fect of regulating morality; pro- visions are intended to protect the public. Legislation speaks to maintenance of integrity of professional-patient relation- ship. Impugned provisions do not have effect of criminalizing activities that fall outside deliv- ery of health services. Treating patient while involved in sexual relationship undermines integ- rity of professional-patient re- lationship. Breach of provincial law can sometimes bring with it potential social stigma in public eye. That does not remove law from regulation of health pro- fessions and into criminal law. In pith and substance, manda- tory revocation provisions of Code are regulation of health care. Hanif v. Ontario College of Phar- macists (Sep. 21, 2015, Ont. C.A., John Laskin J.A., J.C. MacPherson J.A., and J. MacFar- land J.A., File No. CA C59765) Decision at 247 A.C.W.S. (3d) 698 was affirmed. 257 A.C.W.S. (3d) 577. Family Law CUSTODY Mother prohibited from relocat- ing to Manitoba before resolu- tion of motion to change Parties had short relation- ship and had one child. Parties agreed to joint custody with child primarily residing with mother. Mother lived with par- ents and sister in house parents owned in Victoria Harbour, On- tario. Father lived in Stouffville, Ontario, about 138 kilometres away. Mother's parents and sis- ter moved to Swan River, Mani- toba and house had been sold. Mother had to find new place to live. Mother was on social as- sistance and was financially un- stable on her own. Mother's par- ents ran Bible college in Swan River and offered mother part- time work and she would have support of her family. Mother wanted to move to Swan River with child. If mother were not allowed to move to Swan River, she would move in with her brother in Owen Sound pend- ing trial. Father brought urgent motion to prevent mother from relocating with child. Motion granted in part. Mother should be permitted to move to Owen Sound but not Manitoba pend- ing final resolution of father's motion to change. It would not be in child's best interests to force mother to remain iso- lated and financially unstable in Victoria Harbour. However, proposed move to Swan River would be fundamental change to status quo that should not be made without benefit of full hearing. Permitting move to Manitoba would establish new status quo that would limit fa- ther's access to child. Bice v. Boettcher (Aug. 31, 2015, Ont. S.C.J., R.E. Charney J., File No. Barrie FC-14-407-00) 257 A.C.W.S. (3d) 632. COSTS Trial judge erred with respect to quantum of costs awarded to mother Mother was awarded custody of child. Mother was awarded costs of $25,500, all inclusive. Father appealed. Appeal al- lowed. Mother was success- ful and was entitled to costs. Mother was found to have breached court order, which was unreasonable. Trial judge clearly and intentionally took R. 24(4) of Family Law Rules into account by reducing costs awarded. However, trial judge made error in principle respect- ing R. 24(10). If litigant expected to ask to be reimbursed for at- tendances at case, settlement and trial management confer- ences, they must ask presiding judge to set amount in cause for preparation and attendance at that step so trial judge could allow amount in costs award for those other steps. Mother was entitled to costs but quantum must ref lect factors in R. 24(11), viewed f lexibly, and trial judge's finding that she acted unrea- sonably. Reasonable, balanced and fair costs order to recognize mother's success, as adjusted by R. 24(4), was $10,000, inclusive of disbursements and HST. Van Wieren v. Bush (Sep. 9, 2015, Ont. S.C.J., G.A. Campbell J., File No. FS-483-14) Decision at 256 A.C.W.S. (3d) 854 was var- ied. 257 A.C.W.S. (3d) 615. SUPPORT Imperative that merits of hus- band's motion to change and wife's claims be determined as soon as practically possible Parties were married seven years and had two children. Parties entered minutes of settlement which were incorporated into final order. Husband brought motion to change final support order. Husband asserted there was significant decrease in his income. Endorsement by dis- pute resolution officer indicated that husband was abandoning motion to change and intended to move to enforce existing or- der and that wife wished to have her costs assessed. Order was made in accordance with report. Order was made at case confer- ence for husband to provide fur- ther disclosure. Wife brought motion for order requiring husband to provide documents requested year earlier and ad- ditional documents. Husband's motion to change motion was stayed. Husband brought mo- tion to lift stay. Wife brought motion to dismiss husband's motion to change. Husband's motion to change was dis- missed. Husband commenced another motion to change. Wife brought motion to dismiss hus- band's motion to change as- serting disclosure requests re- mained outstanding and there were unpaid costs awards. Mo- tion dismissed. Husband was to answer within 45 days out- standing disclosure items and wife was to answer husband's requests for information. Given acrimonious history and delay in case it was imperative that merits of husband's motion to change and wife's claims be de- termined as soon as practically possible. Many of items about which wife claimed non-disclo- sure had already been ruled as not relevant, within wife's abil- ity to obtain from public record herself, or available to her on notice to third parties by mo- tion if wife was unsatisfied with husband's answers or efforts. Wife obtained order enforcing costs awards as support orders by Family Responsibility Office. Merits of husband's motion to change were never considered and original order continued to be enforced. Lazier v. Vanier (Sep. 3, 2015, Ont. S.C.J., D.A. Jarvis J., File No. Newmarket FC-02- 152740006) 257 A.C.W.S. (3d) 658. Injunctions INTERLOCUTORY RELIEF Motion to enjoin defendant from suspending services pro- vided under Carrier Service Agreement was dismissed Plaintiff and defendant were in business of providing voice over IP telecommunications ser- vices. Parties entered into Car- rier Service Agreement dated June 14, 2013 under which de- fendant agreed to provide cer- tain network carrier services to plaintiff for consumption by customers of plaintiff 's affiliate, TWN, for three years. In Febru- ary 2015 TWN directly or indi- rectly arranged for bulk port of 6,000 telephone numbers from defendant to alternate carrier despite having been advised by defendant that such action was precluded prior to expiration of service agreement. Plaintiffs alleged that they took that ac- tion because of concerns re- garding quality of voice over service provided by defendant. In March 2015, defendant can- celled TWN's account and stopped providing services un- der service agreement. Plaintiff commenced action for breach of contract and tort of unlawful means. Plaintiffs brought mo- tion for order enjoining defen- dant from suspending any ser- vices provided to plaintiffs un- der service agreement and order prohibiting defendant from interfering with migration of plaintiff 's customers' telephone numbers from defendant's net- work. Motion dismissed. Plain- tiffs' claim based on breach of contract raised serious question to be tried but was not certain to succeed because TWN was no party to service agreement and there may have been justifica- tion for defendant to suspend plaintiff 's service. Allegation of tort of unlawful means did not raise strong prima facie case or serious issue to be tried. Plain- tiff did not have any customers and provided no evidence of irreparable harm that it would suffer if injunction was not granted. Balance of convenience favoured defendants. Moreover, plaintiff did not come to court with clean hands. It asked court to compel defendant to con- tinue to provide service but had not paid for that service. Teliphone Corp. v. Comwave Wholesale Inc. (Aug. 24, 2015, Ont. S.C.J., M.D. Faieta J., File No. CV-15-00523503-0000) 257 A.C.W.S. (3d) 697. Insurance DISABILITY INSURANCE Motion judge exercised dis- cretion reasonably in grant- ing relief from forfeiture Employee was injured in car accident and unable to return to work. Employer had group insurance policy with insurer. When employee failed to give notice or proof of his claim for long term disability benefits within time limits under policy, insurer denied his claim. Em- ployee commenced action. In- surer brought motion for sum- mary judgment. Motion judge declined to dismiss action, in- stead exercising his discretion by making binding determina- tion that employee entitled to relief from forfeiture of claim under s. 98 of Courts of Justice Act. Insurer's appeal dismissed. Policy required employee to give notice of claim within 30 days of alleged disability and proof of claim no later than one year and 90 days after disabil- ity. He did not give any notice of claim until two years after accident and did not give proof CASELAW

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