Law Times

Page 14 December 14, 2015 • Law Times www.lawtimesnews.com CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Judicial review not appropriate course of action to determine whether treaty rights infringed Respondent BC Hydro submit- ted project description, which initiated environmental assess- ment processes. Project was proposed dam and 1,100-mega- watt generating station on Peace River, which would flood Peace River Valley if constructed. Joint review panel of British Colum- bia and federal governments and Minister of Environment deter- mined that significant adverse environmental effects would likely result from construction of project. Governor in Council (GIC) decided that adverse en- vironmental effects were justi- fied in circumstances. Applicants were British Columbia Treaty 8 First Nations whose members exercised constitutionally pro- tected treaty rights within project and surrounding area. First Na- tions applied for judicial review of GIC's decision. Application dismissed. Decision of GIC was afforded considerable deference. Judicial review was not appropri- ate course of action to determine whether treaty rights had been infringed. Evidentiary record that was developed for an action was appropriate basis for court to determine issue of infringement of First Nations' treaty rights. Infringement of important and fundamental treaty rights re- quired complete evidentiary re- cord to be fairly and reasonably determined. First Nations failed to establish that they had legiti- mate expectation that GIC would deal with issue of treaty infringe- ment. Crown did not need to determine infringement of First Nations' treaty rights but they did consider those rights. From beginning of environmental as- sessment process to its conclu- sion steps were built into process to ensure that decision-makers were provided with information they reasonably required to make decisions. BC Hydro consulted with First Nations extensively and in good faith. Duty to consult and accommodate First Nations was met and GIC's decision was reasonable. Prophet River First Nation v. Canada (Attorney General) (Aug. 28, 2015, F.C., Michael D. Manson J., File No. T-2292-14) 258 A.C.W.S. (3d) 651. ONTARIO CIVIL CASES Arbitration JURISDICTION Arbitrator did not have juris- diction to consider whether mother was in contempt Parties were married for six years and had two children. Par- ties were awarded joint custody, with mother having primary residence. ere had been sub- stantial conflict between par- ties and they agreed to submit issues to arbitration. Arbitrator addressed issues of contempt, mobility, parenting plans and changes and child support. Arbi- trator found that mother was in contempt of court and ordered mother to pay father $7,000. Arbitrator's award became court order. Father alleged that mother failed to comply with court order by failing to pay him $7,000, failing to consult with him regarding major decisions, failing to provide access, failing to retain parenting coordina- tor, failing to continue children in counselling and failing to at- tend counselling herself. Father brought motion for contempt. Motion dismissed. Arbitra- tor did not have jurisdiction to consider whether mother was in contempt. Rules of Civil Proce- dure and Family Law Rules pre- served exclusive jurisdiction of Superior Court over contempt proceedings and orders in rela- tion to enforcement of Superior Court orders. ere was noth- ing in Arbitration Act, 1991 that would confer jurisdiction over contempt not in face of court to arbitrator. Superior Court en- forced award of arbitrator but arbitrator did not have power to enforce Superior Court orders. Arbitrator could be called on to resolve dispute as to whether party had complied with court order but that was one step re- moved from contempt of court proceeding. Arbitrator did not have jurisdiction to decide that mother's conduct amounted to contempt of court or to impose penalties for contempt. Process followed for obtaining order did not meet procedural require- ments for quasi-criminal finding of contempt. Penalty constituted payment order and was not en- forceable by contempt motion. Court order did set deadline for payment and mother pro- vided evidence that she paid full amount owing. Court order provided that father was per- mitted to consult with mother involving major decisions and he provided no evidence that this had not occurred. It could not be concluded, beyond rea- sonable doubt that mother de- liberately cancelled access and violated court order. It could not be concluded, beyond reason- able doubt, that mother delib- erately disobeyed court order respecting retaining parenting coordinator. As parenting co- ordinator was only recently re- tained, children's counsellor had not been identified and mother could not be in contravention of that part of court order. Mother had counselling and was not in contempt of court order. Woronowicz v. Conti (Aug. 21, 2015, Ont. S.C.J., R.E. Charney J., File No. Barrie FC-09-1006- 00) 258 A.C.W.S. (3d) 722. Professions BARRISTERS AND SOLICITORS No special circumstances to allow court to overlook expiry of limitation period for bring- ing Solicitors Act assessment Respondent was plaintiff 's counsel in medical malprac- tice action. Jury gave verdict in favour of plaintiffs. Applicants disputed amount of respon- dent's account for legal services. Appointment for assessment was made. Family members other than injured plaintiff were not named in appointment for assessment and were advised they would be foreclosed from assessment proceeding. Appli- cants included injured plaintiff and family members who made claimed under Family Law Act. Applicants sought order per- mitting entire account to be as- sessed on behalf of all applicants. ere was no explanation why family members did not move to amend assessment proceed- ing to add their names. Respon- dent brought motion to suspend interest owing to applicant and for declaration that family members breached limitation period for bringing assessment under Solicitors Act. Motion granted. Limitation period for appointment for assessment ex- pired and there were not special circumstances to allow court to overlook expiry of limitation pe- riod. Family members who were individually named plaintiffs in litigation and who were indi- vidually identified in solicitor's account were not included by implication in assessment pro- cess begun by injured plaintiff. Lack of specific allocation of dis- bursements to individual clients was of no consequence and did not rise to level of special cir- cumstances that could abrogate application of limitation period. Possible merits of assessment did not trump requirements of Limitations Act, 2002. Alleged waiver of limitation was not sufficiently clear to constitute special circumstances and pre- clude consideration of limita- tions issue. It was unreasonable for family members to suggest that administration of justice could be brought into disrepute by refusing to include them in assessment when they took no steps within reasonable time to protect their own interests despite ample opportunity and advice. Order went suspending interest owing to applicants by respondents. Woods v. Hooper (Sep. 30, 2015, Ont. S.C.J., Robert B. Reid J., File No. FS-12-36086) 258 A.C.W.S. (3d) 836. ONTARIO CRIMINAL CASES Breathalyzer REFUSAL TO PROVIDE SAMPLE Conviction upheld where officer afforded accused doz- ens of opportunities to pro- vide adequate sample Accused appealed her convic- tion for impaired operation and refusal to provide breath sam- ples. Accused submitted that there was no evidence that she intentionally refused or failed to provide suitable breath sam- ples upon request. Trial judge found, upon reviewing video of breath room, that accused made approximately 53 attempts to provide suitable sample of her breath into machine. In most, accused blew for one or two sec- onds and then stopped. Breath technician exhorted accused to blow for longer period. Accused told officer that she was doing her very best. Breath technician then terminated process and ad- vised accused that she would be charged with Refuse to Provide Sample. Breath technician then advised accused that first sample she provided registered 164 mil- ligrams of alcohol in 100 milli- litres of blood. Accused submit- ted trial judge erred in finding beyond reasonable doubt that accused had intentionally re- fused to provide breath sample. Appeal dismissed. Review of video of breath room revealed that officer afforded accused dozens of opportunities to pro- vide adequate sample of her breath. On numerous occasions, accused blew for very short pe- riods even aer being admon- ished by officer. Officer tested machine to confirm that it was working properly and demon- strated to accused how to pro- vide breath sample. It was there- fore open to trial judge to find that accused had intentionally failed to provide breath sample into machine. Officer advised accused she could take as much time as she needed to provide sample, he made it clear to her, on more than one occasion, that failure to do so would result in criminal charge. Aer caution- ing her, officer gave accused number of opportunities to pro- vide suitable sample but on each occasion, she stopped blowing aer short period. Given ex- traordinary number of opportu- nities which officer provided to accused to blow into machine, he was under no legal obligation to give her additional opportu- nity to blow aer advising her that she would be charged with refuse. It was clear that accused's impairment was not bar to pro- viding suitable breath sample into machine. Accused succeed- ed in providing suitable sample into machine and could have done so on second occasion had she chosen to do so. R. v. Erskine (Sep. 30, 2015, Ont. S.C.J., André J., File No. Brampton 11-3679) Decision at 111 W.C.B. (2d) 820 was af- firmed. 125 W.C.B. (2d) 147. Charter of Rights RIGHT TO COUNSEL No basis to interfere with find- ing accused did not invoke his right to speak to counsel Crown appealed decision over- turning trial judge's decision to dismiss accused's application to exclude breath sample evidence on basis of breach of right to counsel and acquitting accused. Accused was sitting in his parked pick-up truck, out of gas at side of highway, when he was ap- proached by two police officers, responding to earlier 911 call alerting them to accused's erratic driving. Police formed reason- able suspicion that accused had been drinking and demanded he provide breath sample. Ac- cused did so, and screening de- vice registered fail. Upon arrest, police advised accused of his right to counsel using standard language from OPP issued card. Arresting officer asked accused: "Do you understand?" and ac- cused answered: "Yes". Arresting officer then asked accused if he wished to call lawyer now and accused replied: "No, not right now". Accused was then taken to police station where he provided readings of 160. When accused was returned to arresting officer, that officer again asked wheth- er accused wished to speak to counsel. Accused replied: "No, I have nothing to hide". Accused did not ask to speak to lawyer at any point while in police custo- dy. Appeal judge found that ac- cused's s. 10(b) rights had been

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