Law Times

Law TiMes • May 7, 2012 Hospitals Infant sustained would not have happened but for negligence of nurses LIABILITY TO PATIENTS Neurological injuries infant phyxial exposure at birth causing neurological injuries. Damages were admitted. Claim against hos- pital was allowed. Actions of nurs- es fell below expected. Standard of care to extent there was failure to auscultate at 1830 and 1900 creat- ing gap of one and one-half hours. Nurse' suffered intrapartum as- 1930 in increments of five seconds produced fetal heart rate ("FHR") reading in range of 120 to 144. Dif- ference was greater than 15 beats and nurse should have investigated further to establish either baseline or to determine if nurse had lis- tened to acceleration or decelera- tion. By not doing so, nurse failed to meet expected standard of care. Neurological injuries infant sus- tained would not have happened or would have been substantially reduced but for negligence of nurs- es in failing to auscultate between 1800 and 1930 and alternatively nurses' failure to verify FHR at 1930 and/or to then apply electri- cal fetal heart monitoring. Durnin v. Victoria Hospital (Feb. 14, 2012, Ont. S.C.J., Tausend- freund J., File No. 31469F) 211 A.C.W.S. (3d) 685 (34 pp.). s method of counting at Board ordered rent abatement of 10% for one year preceding ap- plication for 53 of appellant' Not possible to determine what deficiencies board found to warrant significant penalty Landlord and Tenant RENT ants. Appeal was allowed. Matter was referred back to board before differently constituted panel on question of breach of s. 20(1) of Residential Tenancies Act, 2006 (Ont.). Board' s ten- detail and transparency. Reasons gave no indication that board considered requirements of ss. 20(1) or 22 of Act. It was not pos- sible to determine what deficien- cies board found to warrant sig- nificant penalty imposed. There was no meaningful analysis as to how appellant substantially inter- fered with tenants' reasonable en- joyment of premises. Avcan Management s reasons lacked O'Laughlin (Jan. 20, 2012, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Jennings and Gray JJ., File No. 521/10) 211 A.C.W.S. (3d) 698 (5 pp.). Inc. v. Application by wife challenging will of testator husband. Testator died on July 24, 2011. Just prior to his death, he prepared document entitled The Informal Will and Last Requests of Testator, which contained instructions for dispo- sition of great majority of assets. By terms of that document, his wife was leſt only wedding ring and wedding pictures. Applica- tion dismissed. Document dated July 21, 2001 was valid holograph will to be given full effect accord- Connection between depression and testamentary capacity not established Wills and Estates WILLS CASELAW ing to terms. Based upon affidavit of wife, writings of deceased made just prior to death, and manner in which he died, he was quite obvi- ously depressed. However, connec- tion between finding of depression and finding of suspicious circum- stances surrounding testamentary capacity had not been established. There was no evidence to suggest that testator' as to affect any of hallmarks of tes- tamentary capacity. Laframboise v. Laframboise (Dec. 22, 2011, Ont. S.C.J., Gordon J., File No. E6387-2011) 211 A.C.W.S. (3d) 742 (7 pp.). s depression was such TAX COURT OF CANADA Taxation Motion by Minister for order granting leave to examine repre- sentative of accounting firm or for- mer partner of law firm, pursuant to Rule 99 of Tax Court of Canada Rules (General Procedure). Mo- tion dismissed. Stringent require- ments of Rule 99 were not met. Minister failed to establish that it had been unable to obtain infor- mation from either former part- ner or firm, and what information was missing from these disclo- sures. Further examination sought would cause undue delay and un- reasonable expenses. Taxpayer failed to establish that either firm or former partner had information that was relevant to material issue in appeal. Crown could easily per- form review of documents itself without discovery it sought. There was nothing to indicate that any- one currently associated with firm had any independent knowledge of audits of joint venture in issue except that which was reflected in records already provided. Minister was merely carrying on fishing ex- pedition. McLarty v. Canada (Mar. 8, 2012, T.C.C., Margeson J., File No. 98- 1659(IT)G) 211 A.C.W.S. 727 (8 pp.). Minister merely carrying on fishing expedition INCOME TAX (3d) CRIMINAL CASES Assault ONTARIO Four very intoxicated young men took taxi. Accused and his friend did not pay their taxi fare. Friend punched taxi driver knocking him to ground unconscious. Three in- dependent witnesses testified that they observed accused strike taxi driver with metal rod shortly be- fore friend punched victim. Then accused kicked victim several times as he lay on ground. Vic- tim suffered serious head injury and was in coma for five days and hospitalized for 19 days. He suf- fered from continued injury to his brain, including permanent loss of his sense of smell. Video camera installed in taxi also confirmed that accused entered taxi approxi- mately five minutes before assault occurred. Accused charged with AGGRAVATED ASSAULT Accused and friend formed common intention of assaulting taxi driver one count of aggravated assault. Friend pleaded guilty to aggra- vated assault and was sentenced to period of time in prison. Neither friend' was believable. Independent wit- nesses gave consistent evidence on all of substantive details of in- cident. At moment that taxi driver confronted them about not pay- ing taxi fare, friend and accused formed common intention of pursuing unlawful purpose of as- saulting taxi driver and assisted each other in carrying out assault. Accused guilty both as co-perpe- trator in committing aggravated assault as charged and as party to offence of aggravated assault by assisting friend by hitting victim with metal rod on back of head and also by delivering more than one kick to victims' body while he lay unconscious on ground. Ac- cused found guilty of aggravated assault. R. v. Saraj (Jan. 13, 2012, Ont. S.C.J., Smith J., File No. 09- A11518) 99 W.C.B. (2d) 202 (15 pp.). s nor accused's evidence Application by Attorney General for forfeiture order with respect to net proceeds of sale of property. Owner of house and his wife sepa- rated and reconciled. Aſter their final break-up, owner allowed husband to remain in property os- tensibly to undertake renovations. Grow operation was discovered in house. Husband was arrested. Owner claimed that she was un- aware that subsequent to her de- parture from property, husband commenced grow operation. Ap- plication dismissed. It could not be said that owner was willfully blind as to what was going on at property aſter she had leſt. To visit upon single mother responsible for three children, loss of equity that she had acquired in property prior to her separation and prior to commencement of grow opera- tion, would not be viewed by com- munity at large as being deserved and in interest of justice. Ontario (Attorney General) v. 139 William Honey Crescent (Feb. 7, 2012, Ont. S.C.J., Edwards J., File No. CV-06-078786-00) 99 W.C.B. (2d) 206 (16 pp.). To visit upon single mother loss of equity would not be viewed as being deserved Attorney General GENERAL Breathalyzer Accused charged with impaired driving, "over 80", and dangerous driving. Accused applied to exclude evidence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Officer stopped accused after observing erratic driv- ing at high speed. Officer believed that all five passengers in vehicle were intoxicated. Officer smelled alcohol coming from accused' Many aspects of officer's evidence not articulated in his notes DEMAND FOR BREATH (BLOOD) SAMPLE breath. Accused told officer he had approximately three drinks. Officer gave no evidence as to walking of accused, his motor skills, eyes, face, or speech. Accused argued officer did not have reasonable and prob- able grounds to demand breath s www.lawtimesnews.com sample. Application allowed, evi- dence excluded. Many aspects of officer' lated in his notes. Officer formed subjective grounds to arrest accused for impaired driving. Driving over speed limit and passing two vehi- cles without something else did not point inexorably to indication of some impairment. Objective review of officer' s evidence were not articu- test. Officer did not have reason- able and probable grounds to make breath demand. While collection of breath samples was relatively non- intrusive, Charter-infringing con- duct was serious. Officer had very less intrusive alternative in road- side screening device. Drinking and driving offences were very serious, but nothing took this case into more serious category. R. v. Tait (Feb. 7, 2012, Ont. C.J., Bourque J., File No. 11-07244) 99 W.C.B. (2d) 114 (6 pp.). s grounds did not meet Accused convicted of mischief under $5,000, counselling murder in relation to posters he glued to city property. Accused believing he was victim of injustice, post- ing poster depicting city council- lor including words "murder" and "help" above councillor' encouraged murder of counsellor No reasonable person, viewing poster, would conclude it COMMISSION OF OFFENCE COUNSELLING OR PROCURING Accused testifying he had met councillor, meant him no harm, meant only to enlist his help. Ac- cused testifying s image. "help" meant, in his vernacular, cry for help to councillor. Accused having limited literacy, rudimen- tary English skills. Accused post- ing other posters condemning bank, condominium corporation, clearly identifying accused' "murder" and telephone number. Trial judge disbelieving accused' s name, meant councillor no harm, hold- ing that message on face of poster constituted incitement to commit murder. Appeal from convictions allowed, acquittals entered. Trial judge misapplied elements of of- fence of counselling murder. No reasonable person, viewing poster in context, would conclude that it encouraged murder of counsel- lor. Trial judge erred by looking at poster in isolation, rather than in context of collective message of all posters, personal characteristics of accused, absence of motive to harm counsellor, fact that accused was easily identified by informa- tion on posters. R. v. Jeffers (Jan. 4, 2012, Ont. C.A., Laskin, Gillese and Karakatsanis JJ.A., File No. C49760) 99 W.C.B. (2d) 237 (17 pp.). s evidence he Drug Offences Police were investigating suspected crack cocaine dealers by making undercover purchases, and by sur- veilling dealer' Police evidence was contradictory and unreliable POSSESSION FOR PURPOSE OF TRAFFICKING house. Accused was arrested when he was driving car, as were his two passengers. Number on cellphone found on one of passengers was one undercover police had been s apparent car and PAGE 15 using to arrange to purchase crack cocaine. Accused pleaded not guilty to trafficking in cocaine, possession of proceeds of crime, possession of cocaine for purpose of trafficking. Police had been pre- paring to obtain warrant to search house, and added details obtained from arrests of accused, includ- ing fact that accused was found in possession of crack cocaine. Ap- plication was denied; Justice of the Peace wanted further information about why warrant had to be exe- cuted immediately. Notwithstand- ing, officers attended at house to "freeze premises" timately issued and executed but nothing was found. Residence was accused' . Warrant was ul- criminal record 2003, dangerous driving; 2005, possession of Sched- ule 1 substance; 2006, possession of prohibited firearm, posses- sion of Schedule 1 substance and fail to comply with recognizance; 2011, possession of Schedule 1 substance and fail to comply with recognizance. Not guilty. Accused was straightforward witness and readily admitted facts that were against his interest. Process used to have officer identify driver of drug sale vehicle was flawed. Car accused was driving when arrested was borrowed. Identification evi- dence between multiple accused was confused. No evidence was presented as to ownership of car or cellphone, or that those arrested were engaged in joint enterprise. Police evidence was contradictory and unreliable. Accused found not guilty of trafficking and of posses- sion for purpose of trafficking. R. v. Abbatino (Feb. 2, 2012, Ont. S.C.J., Corrick J., File No. CR-10- 90000310) 99 W.C.B. (2d) 224 (14 pp.). s mother's. He admitted his Application for disclosure of iden- tity of ride-along civilian. Civil- ian was in passenger seat of police cruiser when vehicle driven by ac- cused came up on leſt-hand side of cruiser at high rate of speed, made turn, and eventually was pulled over by police constable. Officer had some dialogue with accused before accused got out of his ve- hicle. Civilian, in accordance with police practice, was instructed to remain in passenger seat of cruiser. Defence sought her identity for purpose of being able to interview her to determine what, if anything, she witnessed. Application al- lowed. Civilian passenger would have been able to witness, through windshield, walking of Defence entitled to know identity of civilian passenger to determine what she witnessed Evidence WITNESSES and his balance. Once accused was in back seat of cruiser, she would have been in position, in all likeli- hood, to hear any further words from accused. When they got to detachment, she followed officer and accused into detachment. Defence was entitled to know her identity so that defence could de- termine what, if anything, she ac- tually witnessed that could be of use to court. Order that police turn over that information to Crown, and Crown provide it to defence. R. v. Pena (Jan. 19, 2012, Ont. C.J., Collins J., File No. 11-1275) 99 W.C.B. (2d) 227 (5 pp.). accused LT

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