Law Times

Law Times • march 14, 2016 Page 15 www.lawtimesnews.com CASELAW (Feb. 5, 2016, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and David Brown J.A., CA C59537) Decision at 245 A.C.W.S. (3d) 144 was reversed. 262 A.C.W.S. (3d) 13. Civil Procedure COSTS Clients entitled to partial indemnity costs after dismissal of counsel's motion to withdraw mid-trial Litigation involved lengthy and complex attempt by plaintiffs to recoup significant financial investment that was made as re- sult of acts of deceit and material non-disclosure by defendants. Plaintiffs' counsel sought per- mission to withdraw mid-trial for non-payment of outstanding legal fees. Motion was dismissed. Plaintiffs applied for costs. Ap- plication granted. Motion was found to be improper and un- professional and would result in significant prejudice to plaintiffs and to administration of justice, but conduct was not described in egregious terms that might warrant costs on elevated scale. Lawyer continued to vigorously to purse plaintiffs' interests and achieved stellar result. This was not rare and exceptional cir- cumstances that warranted el- evated award of costs. Plaintiffs were entitled to partial indem- nity costs fixed at $25,000, inclu- sive of HST and disbursements. It would be manifestly unjust not to allow counsel to deduct amount of award from outstand- ing account for legal services, given relationship between law firm's account and costs award. Todd Family Holdings Inc. v. Gardiner (Dec. 18, 2015, Ont. S.C.J., McIsaac J., Oshawa CV- 76324-11) Additional reasons to decision at 259 A.C.W.S. (3d) 423. 262 A.C.W.S. (3d) 44. TRIAL Using words 'caused' or 'con- tributed' may confuse jury This was medical negligence ac- tion against four treating doctors and three nurses. Damages had been agreed on and matter was proceeding to trial by jury on li- ability. Parties sought directions on wording of questions put to jury on causation, and whether jury should be asked to provide particulars. This was not rare ex- ception requiring material cau- sation test, so no reason not to use language on causation from Clements when drafting ques- tion: but for defendants' negli- gent act, injury would not have happened. Using words caused or contributed, even though they appeared in Negligence Act (Ont.), may confuse jury. Section 108(5) of Courts of Justice Act (Ont.) gave trial judge discretion to require jury to answer specific questions, and there was long- standing authority supporting view judge could require specif- ics in their responses. This was complex area of law, so appropri- ate to have jury provide particu- lars to ensure they understood and applied instructions. Sacks v. Ross (Nov. 20, 2015, Ont. S.C.J., Darla A. Wilson J., CV-10-401690) 262 A.C.W.S. (3d) 86. Evidence OPINION EVIDENCE Proposed expert did not lack independence and objectivity On last day of trial, respondent requested that a witness, identi- fied as K, be qualified as expert in areas including family thera- py, alienation, and domestic vio- lence. K was senior and expert social worker who had practiced in field for almost 45 years. K was not qualified as expert. K did not meet four requirements set out in relevant case law, and exercise of judicial discretion indicated that K should not be qualified as ex- pert. Proposed evidence did not meet criteria under Family Law Rules (Ont.). K did not file signed acknowledgement of duty to court required under R. 20.1 of Rules, and had said repeatedly in cross-examination that she did not owe duty to court or either party, but that she was advocate for children. K was not properly qualified expert who lacked in- dependence and objectivity as required by R. 20.1(1)(a) and by jurisprudence. K was not asked to affirm her duty to court or to provide evidence that was in- dependent, impartial and unbi- ased, was unwilling and unable to carry out duty to provide fair, non-partisan and objective evi- dence, and there was likelihood that her opinion was formed before she conducted her review of file. K's choice of language in- dicated judgment approach, and was inconsistent with unbiased, impartial approach. X v. Y (Dec. 9, 2015, Ont. S.C.J., Trimble J., 36539/14) 262 A.C.W.S. (3d) 131. Professions BARRISTERS AND SOLICI- TORS Appeal by solicitor from order refusing to quash order for assessment was dismissed Solicitor acted as counsel to cli- ent and rendered accounts from 1979-2013. Fifty one accounts were at issue and client obtained order for assessment. Solicitor brought urgent motion to quash order for assessment. Order in- terlocutory on its face, but decid- ed issues that deprived solicitor of substantive defences, so was treated as final for purpose of appeal. Appeal by solicitor from order refusing to quash order for assessment. Appeal dismissed. No effect given to submission assessment should be quashed against solicitor personally be- cause he did not render accounts: they were on firm letterhead and signed by solicitor, and there was no evidence of other lawyers in- volved. Appellants claimed 43 accounts were for management/ administrative services and not subject to assessment, but judge considered this and reasonably concluded services were con- nected to basis for retaining solicitor, and fact they could be performed by lay agent did not eliminate need for compliance with Solicitors Act (Ont.). Judge considered appellants' claim re- tainer was in dispute and prop- erly found assessment attacked quantum of bills and work done, not retainer. While no written agreement was signed, retainer was in place for years without dispute. Appellants claimed there were special circumstances due to provision of management services and because all accounts were paid. Management services argument had already been dealt with, and payment of accounts not determinative; totality of cir- cumstances was considered and that included appellant's partici- pation in assessment. Appellants argued order was made late. Judge properly found that while there was technical irregularity as to timing of issue of order, so- licitor had attorned to jurisdic- tion. While some accounts were rendered over a year before as- sessment was ordered, accounts were all stated to be interim ac- counts, and this fact amounted to special circumstances pursu- ant to s. 4. Accounts overlapped and client only decided to seek assessment after obtaining out- side legal advice. Speciale Law Professional Corp. v. Shrader Canada Ltd. (Dec. 7, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and B.W. Miller J.A., CA C60537) 262 A.C.W.S. (3d) 244. Ontario Criminal Cases Appeal RIGHT OF APPEAL Leave to appeal from dismissal of appeal from conviction for sexual assault was refused Accused was convicted of sexu- ally assaulting complainant, niece of his common-law wife. Complainant and accused both attended party celebrating com- plainant's grandparents' 50th wedding anniversary. Accused had become highly intoxicated. According to complainant, ac- cused entered her room, began sexually touching her and then performed oral sex on her before she realized what was happening and f led room. Complainant tes- tified that she believed accused thought she was his wife, as they had similar build and his wife was initially supposed to stay in that room. At trial, accused de- nied having any sort of sexual interactions with complainant or his wife that night. Accused said he entered complainant's room, thought that person sleep- ing in bed was his wife, and fell asleep naked beside her in bed. Accused denied that he had en- gaged in sexual activity with anyone believing that she was his spouse. Accused sought leave to appeal from decision of SCAJ dismissing his appeal from con- viction. Leave to appeal denied. Whether there was air of reality to defence did raise question of law. Accused conceded that his appeal did not raise issue of sig- nificance to administration of justice generally. There were no clear errors identifiable in rea- sons of SCAJ. Where accused asserts he had no sexual contact of any kind with complainant, it would be fantasy to speculate that he was lying on that point, but to then attribute to him de- fence completely incompatible with his evidence, namely that he was assailant but he may have been operating on mistaken be- lief. Accused had not identified any exceptional circumstances which would justify second ap- peal. R. v. H. (A.D.) (Oct. 15, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., G. Pardu J.A., and K.M. Weiler J.A., CA C59604) Leave to appeal decision at 117 W.C.B. (2d) 100 was refused. 127 W.C.B. (2d) 10. Disclosure GENERAL Application for production of sexual assault centre records was granted Accused was charged with sexual offences against his now 38-year-old daughter when she was between ages of two and ten- years old. Complainant initiated charges one year ago explaining that she began to relive abuse at age of 18, in form of nightmares and f lashbacks, causing her to seek counselling from sexual as- sault centre. Complainant also testified that since providing her statement to police, she had number of new memories come back to her, including that abuse started when she was just baby. Crown advised that it intended to call expert evidence at trial re- lated to delayed memory recall in children who had been abused. Accused sought production of sexual assault centre records, pursuant to s. 278.3 of Criminal Code. Application granted. Ac- cused established that records were likely relevant to issue at trial and that their production to court was necessary in interests of justice. Application succeeded at first stage that records be re- viewed by court after which de- cision will be made whether they should be disclosed. R. v. B. (P.) (Nov. 20, 2015, Ont. S.C.J., Baltman J., CRIMJ (P)890/15) 127 W.C.B. (2d) 87. Evidence OPINION EVIDENCE Doctor was qualified to give expert evidence on specific issues regarding strangulation Accused charged with chok- ing to commit sexual assault and aggravated assault by en- dangerment by choking. Pro- posed expert was to give opinion evidence in areas sought having been medical doctor for great number of years, having trained and practiced as coroner and practiced as emergency room physician for number of years. Crown wished to adduce expert evidence. Proposed expert qual- ified as expert entitled to provide opinion evidence on following specific issues: on whether stran- gulation endangered life of com- plainant in this case; on what, if any, conclusions could be drawn from severity of visually observ- able injuries with respect to se- verity of strangulation; and on whether subconjunctival hem- orrhages, facial petechial and ligature marks were caused by strangulation in this case. Areas of concern were not obscure area of medical practice. Evidence of proposed expert's experience in this particular area had to be taken collectively in which case it certainly established that pro- posed expert had level of exper- tise far exceeding that of court in this area. Threshold for quali- fication of expert is not high. Alleged deficiencies in regard to proposed expert's expertise could be dealt with when court dealt with weight to be given to his evidence. R. v. Smith (Sep. 16, 2015, Ont. S.C.J., J. Fregeau J., Kenora CR- 13-0033) 127 W.C.B. (2d) 50. Sentence PREVENTIVE DETENTION Dangerous offender designa- tion and indeterminate sen- tence upheld on appeal Accused was found guilty of at- tempted murder, robbery and possession of weapon dangerous to public peace. Sentencing judge found accused to be dangerous offender and imposed indetermi- nate sentence of imprisonment. Accused appealed dangerous of- fender designation. Accused was 66 years old and his lengthy seri- ous criminal record began when he was 18 years old. Accused had 27 prior convictions, he spent 35 of previous 40 years in peniten- tiary and he demonstrated pat- tern of violation of conditional releases. Accused was addicted to alcohol, cocaine and heroin and his criminality was associated with his drug use. When accused used drugs he was serious danger to public. Appeal dismissed. Ac- cused's prospects of being able to overcome his lifelong addiction to drugs and alcohol and life of violent crime associated with his drug use were so slim that they could not be said to amount to reasonable possibility of con- trol in community. Accused had benefit of every conceivable treat- ment program, and had com- pleted many successfully, but every time he was released into community he committed fur- ther violent offences, usually very quickly. Judge could reasonably conclude that accused failed to establish he would not pose risk to community when he would no longer be subject to any supervi- sion at end of long term offender order that he sought. R. v. McKenzie (Dec. 24, 2015, Ont. C.A., R.G. Juriansz J.A., Da- vid Watt J.A., and L.B. Roberts J.A., CA C57266) 127 W.C.B. (2d) 15.

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