Law Times

Page 14 April 18, 2016 • lAw Times www.lawtimesnews.com CASELAW Supreme Court of Canada Charter of Rights FUNDAMENTAL JUSTICE Impugned provisions of National Defence Act not overbroad Accused members of armed forces charged under National Defence Act with committing criminal offences. Accused ar- gued that National Defence Act was overbroad in permitting military prosecutions for crimi- nal offences with no connection to accused's military service. Court Martial Appeal Court upheld impugned provisions in National Defence Act. Appeal dismissed. Impugned provisions were not overbroad. Purpose of provisions was to maintain dis- cipline, efficiency and morale in armed forces. Prosecuting crimi- nal actions committed by mem- bers of military was rationally connected to this purpose. R. v. Moriarity (Nov. 19, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., 35755, 35873, 35946) Decisions at 112 W.C.B. (2d) 774, 112 W.C.B. (2d) 562 and 117 W.C.B. (2d) 611 were affirmed. 128 W.C.B. (2d) 26. Federal Court of Appeal Constitutional Law REMEDIES Court had basis for declining to grant interim constitutional exemption from Controlled Drugs and Substances Act (Can.) Individual self-represented liti- gants, numbering about 300 per- sons, challenged constitutional- ity of Marihuana Medical Access Regulations, and Marihuana for Medical Purposes Regulations. Federal Court exercised its dis- cretion by granting interlocutory order staying challenges brought by all of self-represented litigants on ground that challenge by A was much further advanced. Court also dismissed motions for interim constitutional exemp- tions from Controlled Drugs and Substances Act (Can.) pending trial of challenges. Self-repre- sented litigants appealed. Appeal dismissed. Federal Court had ba- sis for declining to grant interim constitutional exemption. Feder- al Court left door open for those who could establish, by further and better proof than that found in template affidavits, that they had medically verifiable need for medical marihuana. Decision to stay self-represented litigants' challenges until final disposition of A challenge supportable on evidentiary record before judge. Evidence before Federal Court supported its finding that there was significant overlap. Turmel v. R. (Jan. 13, 2016, F.C.A., J.D. Denis Pelletier J.A., David Stratas J.A., and Mary J.L. Gleason J.A., A-342-14) 128 W.C.B. (2d) 39. Labour Relations JUDICIAL REVIEW Adjudicator could have enter- tained request to correct order Applicant represented interests of certain federal government lawyers. Applicant, on behalf of bargaining unit, was party to col- lective agreement with employer. Applicant filed policy grievance against employer, alleging viola- tion of collective agreement in force at time. While adjudicator's order provided that grievance was dismissed, part of grievance was resolved in favour of em- ployees. Applicant noticed dis- crepancy and asked adjudicator to correct his order, but adjudi- cator declined to correct his or- der because he considered him- self functus officio. Applicant brought applications for judicial review. Applications granted. By dismissing grievance, order ef- fectively stated that all aspects of grievance set out in policy griev- ance presentation form had no merit, but plainly this was not case. Something on certain issue in grievance had been conceded before adjudicator in favour of employees represented by appli- cant. Applicant was successful on part of grievance. Adjudica- tor could have entertained ap- plicant's request to correct or- der. His decision not to do so on ground that he was legally barred from doing so could not stand. Assn. of Justice Counsel v. Canada (Attorney General) (Feb. 18, 2016, F.C.A., David Stratas J.A., C. Michael Ryer J.A., and Yves de Montigny J.A., A-379-15, A-380-15) 263 A.C.W.S. (3d) 761. Ontario Civil Cases Civil Procedure DISCOVERY Risk management report was not prepared for domi- nant purpose of litigation Plaintiff retained defendant W Inc. as engineering consultant. W Inc. approved specifications for repairs to bridge and defendant L Inc. obtained contract to rebuild bridge. Bridge showed evidence of deterioration and W Inc. advised plaintiff that L Inc.'s poor work- manship was cause. L Inc. redid deteriorated areas of bridge but repairs failed and concrete again deteriorated. W Inc. continued to maintain that poor workmanship on part of L Inc. caused deterio- ration, while L Inc. claimed defi- ciencies were caused by admix- ture specified by W Inc.. W Inc. continued to act for plaintiff and continued to reassure it that it had not made any error. Plaintiff com- menced action against L Inc. and later drafted amended statement of claim to add W Inc. as defen- dant. Plaintiff brought motion for relief, including seeking copy of risk management report prepared by W Inc.'s employee. Motion granted. Risk management report was not prepared for dominant purpose of litigation and was not protected by litigation privilege. Report did not originate in con- fidence but was to be shared with senior management. Relationship between employee and senior management of professional firm was one where confidentiality was important when risk of litigation was being discussed, but it was not situation in which privilege could be asserted. Report was sent to W Inc.'s insurers but relationship between insured and insurer was not deemed privileged. Benefits of correct disposition of litigation to be obtained by production of in- formation requested outweighed any possible injury to relation- ship. Information requested was not protected by common-law privilege and W Inc. was ordered to produce report. Prescott-Russell (United Counties) v. David S. Laflamme Construction Inc. (Feb. 12, 2016, Ont. S.C.J., Robert J. Smith J., 10-48888) 263 A.C.W.S. (3d) 621. Damages PUNITIVE DAMAGES Plaintiff awarded $50,000 in punitive damages for sexual assault by clergy member Defendant was male member of clergy. Plaintiff 's parents were religious and held defendant in extremely high regard. Defen- dant had baptized plaintiff, and plaintiff 's parents even used de- fendant's first name as plaintiff 's middle name. Plaintiff 's fam- ily frequently had out-of-church visits with defendant. Plaintiff was required to share bed with defendant at time of plaintiff 's grandfather's funeral when plaintiff was 13 years old around 1976. Plaintiff woke in morn- ing to find defendant with arm around him and pressing erec- tion against him. During period when plaintiff stayed with de- fendant for couple of weeks, de- fendant provided plaintiff with alcohol and had plaintiff rub lotion on defendant's back. Inci- dent progressed to plaintiff and defendant touching each other's penis until plaintiff became too uncomfortable. Defendant initi- ated sexual touching and mu- tual masturbation several times during remainder of plaintiff 's visit, including in shower. Next summer, plaintiff again had to stay with defendant, and parties shared bed for several nights until plaintiff chose to sleep on couch. In January 2008, defendant was convicted of sexually assault- ing plaintiff and 12 other boys. Plaintiff brought action against defendant for damages for sexual assault. Action allowed. Plaintiff was awarded $50,000 for puni- tive damages. Sexual abuse of child, by its very nature, involved highly reprehensible miscon- duct that departed to marked degree from ordinary standards of decent behaviour. Defendant failed to provide any evidence to rebut prima facie proof offered by his criminal conviction. This suggested defendant delayed plaintiff 's access to relief without good reason. Despite defendant's criminal conviction, punitive damages award was necessary to achieve societal objectives of retribution, deterrence, and de- nunciation. Defendant's conduct was significantly blameworthy. Abuse occurred during time pe- riods when defendant planned to be alone with plaintiff and was therefore almost certainly planned and deliberate. Abuse occurred over number of years. Defendant must have known he was violating deeply personal interest. Abuse had taken place while plaintiff had been exceed- ingly vulnerable under defen- dant's supervision. Lucas v. Prince (Nov. 30, 2015, Ont. S.C.J., Fitzpatrick J., 3807/07) 263 A.C.W.S. (3d) 653. Family Law DOMESTIC CONTRACTS Marriage contract was not improvident Husband was 50 years old at time parties met and was wealthy. Wife was 42 years old at time parties met and was not wealthy. Husband required pre-nuptial agreement. Wife had lawyer when negotiating agreement. Wife was not happy with final agreement but executed it. Hus- band provided schedule setting out his assets. Parties separated after three years of marriage. Husband retired. Wife sought to set aside marriage contract. Ap- plication dismissed. Marriage contract was not set aside. Terms of marriage contract completely addressed wife's entitlement to spousal support and court de- clined to make alternate award. Husband's income in schedule referred to projected future in- come and to this extent it was not misrepresentation as it was fu- ture estimation. Wife could have sought clarification of income figures in husband's schedule, but did not. While it would have been prudent for husband to vol- unteer disclosure regarding his current income, his failure to do so was not sufficient to ground wife's claim to set aside marriage contract. Wife was aware hus- band was wealthy and she did not rely upon disclosure that hus- band made to her detriment if at all. Wife made material misrep- resentations regarding her own financial circumstances. Wife understood nature and conse- quences of marriage contract prior to executing it. Wife did not show there were unconscio- nable circumstances surround- ing negotiation of agreement. Agreement was not improvident. Spousal support terms accorded with and might be superior to what would have been granted to wife . Wife did not show husband exerted any undue inf luence on her or that he otherwise manipu- lated or coerced her into signing agreement. Wife did not execute marriage contract under duress or illegitimate pressure. Husband made no material misrepresenta- tion on which wife relied in ex- ecuting marriage contract. Both parties received independent legal advice from experienced family law lawyers. Negotiations surrounding marriage contract were not fundamentally f lawed. Balsmeier v. Balsmeier (Feb. 5, 2016, Ont. S.C.J., L.E. Fryer J., Newmarket FC-12-40496) 263 A.C.W.S. (3d) 704. Police LIABILITY IN TORT Action against police offi- cer for assault and negli- gence was dismissed Plaintiff was volunteer for Ca- nadian Cancer Society and was driving patient from radiation treatment home. Police officer paced plaintiff and asserted plain- tiff was driving 140 km/h in 100- km/h zone. Plaintiff asserted he was not speeding. Police officer was wearing suit in unmarked car and activated lights and siren and pulled beside plaintiff pointing at him to pull over. Not all emergen- cy lights activated and there were no red lights in front. Plaintiff did not slow down or pull over. Police officer followed plaintiff with lights and siren operating and called for help. Marked po- lice cruiser with emergency lights activated driven by uniformed officer arrived. Plaintiff pulled over. Plaintiff demanded identity of police officer and asked uni- formed officer if police officer was really police officer. Plaintiff did not get out of car when asked. Police officer pulled plaintiff out of car and pushed him up against car and handcuffed him behind his back. Plaintiff asserted there was news story about man pos- ing as police officer and stopping 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.

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