Law Times

Law Times • augusT 8, 2016 Page 15 www.lawtimesnews.com CASELAW provided for joint custody with shared parenting arrangement. Ongoing disputes between parents rendered arrangement unworkable and Children's Aid Society became involved in De- cember 2013. During protection proceedings, parties consented to assessment. Assessor con- cluded father was alienating children against mother and recommended that mother be granted sole custody. Father re- fused to accept recommenda- tion of assessor. Mother brought motion to change final divorce order to grant her sole custody. August 2014 order varied di- vorce order and granted mother sole custody of children with su- pervised access to father. Protec- tion application was withdrawn. Father appealed. Appeal dis- missed. Father's inability to set aside parental conf lict and meet needs of children was material change. Motion judge did not rely on assessment in granting sole custody to mother. Motion judge based his conclusion that father was attempting to alien- ate children from their mother, and his decision to grant mother sole custody, on evidence before him, including affidavits and audio recordings, which largely came from father. In any event, father himself put many parts of assessment in evidence. Children's Aid Society of Ottawa v. V. (A.) (May 12, 2016, Ont. C.A., Paul Rouleau J.A., G. Pardu J.A., and M.L. Benotto J.A., CA C60959) 266 A.C.W.S. (3d) 411. Professions BARRISTERS AND SOLICITORS Declaration was issued that solicitors had agreed to act pro bono Solicitors represented client in action against veterinarian, arising out of death of client's service dog. After settlement of action, solicitors rendered their account to client, who had un- derstood that they were acting pro bono. Client objected to ac- count and brought it for assess- ment before assessment officer. Assessment officer adjourned on basis that retainer itself was disputed. Client brought suc- cessful application for declara- tion that solicitors had agreed to act pro bono. Solicitors ap- pealed. Appeal dismissed. It was not necessary for client to move to set aside assessment or- der before proceeding to Supe- rior Court. It was appropriate to proceed by way of application, and solicitors did not object to it. Application judge made no error of law with respect to pro bono basis. Where there was doubt or ambiguity about terms of retainer, doubt or ambigu- ity was to be resolved in favour of client. Although application judge was incorrect to require individual appellant to gown when he was appearing as self- represented litigant rather than as counsel, this did not taint rest of hearing and raise reasonable apprehension of bias. John Doe v. MacDonald (Apr. 29, 2016, Ont. C.A., Doherty J.A., J.C. MacPher- son J.A., and B.W. Miller J.A., CA C60991) Decision at 257 A.C.W.S. (3d) 724 was affirmed. 266 A.C.W.S. (3d) 492. Torts ABUSE OF PROCESS No evidence that plaintiff took definite act or threat in furtherance of improper purpose Plaintiff was in injection mold- ing machine business. De- fendant S was plaintiff 's sole shareholder from time that company was founded and re- mained plaintiff 's controlling shareholder after initial public offering until plaintiff was sold to O Corp.. S formed defendant A Ltd., which eventually de- veloped certain types of injec- tion molding machines. Basic claim of plaintiff was that after S formed A Ltd., he and A Ltd. misused confidential informa- tion of plaintiff regarding its injection molding machines in development of A Ltd. injec- tion molding machines. It was alleged that certain other defen- dants were complicit in this mis- use of confidential information. Plaintiff brought action and A Ltd. counterclaimed. Action and counterclaim dismissed. As regards A Ltd.'s claim concern- ing abuse of process, it could not be found from termination of settlement discussions that law- suit was started by plaintiff for predominant purpose of fur- thering some indirect, collateral and improper objective. Nor could such improper objective be found from fact that plain- tiff made claims for matters that were settled or claims that did not succeed. There was no evi- dence to establish that plaintiff took definite act or threat in fur- therance of improper purpose. Husky Injection Molding Systems Ltd. v. Schad (Apr. 22, 2016, Ont. S.C.J. [Com- mercial List], F.J.C. Newbould J., CV-14-10482-00CL) 266 A.C.W.S. (3d) 478. Ontario Criminal Cases Appeal FRESH EVIDENCE Accused failed to meet requirements for admission of fresh evidence Accused was convicted of two counts each of sexual interfer- ence and invitation to sexual touching and one count each of sexual exploitation, sexual as- sault (stayed via Kienapple), and possession of child pornogra- phy. Convictions related to ac- cused's step-granddaughter. Ac- cused appealed his convictions and on appeal sought to adduce fresh expert evidence in relation to colour of his pubic hair, indi- cating that it was brown and had not been dyed. Application dis- missed. Accused failed to meet requirements for admission of fresh evidence. Evidence could have been adduced at trial with due diligence, it did not bear upon decisive or potentially de- cisive issue at trial, and although it was credible, taken with other evidence, it could not reason- ably be expected to have affected result. Although complainant's evidence concerning colour of accused's pubic hair was incon- sistent, trial judge acknowledged and addressed that inconsis- tency, and there was ample evi- dence to support accused's con- victions. R. v. F. (A.) (Apr. 12, 2016, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and Grant Huscroft J.A., CA C58002) 129 W.C.B. (2d) 647. GROUNDS Trial judge did not reverse onus of proof This was circumstantial case and trial judge was prepared to draw inference that accused had requi- site knowledge. Duty counsel ar- gued that this inference was not only rational inference available on record. Accused appealed conviction. Appeal dismissed. Circumstances only pointed to one conclusion. Trial judge did not reverse onus of proof. At page two of his reasons, trial judge was not commenting on accused's failure to testify but on fact that evidence did not disclose any reasonable explanation other than guilt. Fresh evidence was not admitted and held no rel- evance to conviction. R. v. Zekaria (Apr. 6, 2016, Ont. C.A., K. Feldman J.A., Ja- net Simmons J.A., and S.E. Pep- all J.A., CA C60158) 129 W.C.B. (2d) 527. PROCEDURE Appeal had no practical consequences for estate of accused Accused was convicted of speed- ing. Accused died after leave to appeal was granted. Motion was made for order substituting personal representative or other person as appellant for deceased on appeal from conviction. Ap- peal abated and judgement be- low stayed. Assuming, without deciding, that court had juris- diction, it was declined. Appeal concerned traffic ticket carry- ing fine of $95. Appeal had no practical consequences for estate of accused. Issue was not eva- sive of judicial review, given vast number of traffic tickets issued annually in province. Appeal involved interpretation of form prescribed by regulation. Deci- sion in this matter would have province-wide implications for validity of convictions under Part I of Provincial Offences Act (Ont.). Without better factual re- cord it would not be in interests of justice to hear appeal. R. v. Hicks (Apr. 21, 2016, Ont. C.A., G.R. Strathy C.J.O., E.E. Gillese J.A., and G. Pardu J.A., CA M45895 (C59588)) 129 W.C.B. (2d) 531. Accused's application to reinstate appeal was granted Accused was declared danger- ous offender and was sentenced to indeterminate sentence. Ac- cused appealed conviction and sentence and obtained legal representation. Appeal counsel filed notice of abandonment and appeal was dismissed as abandoned. Counsel claimed to have received clear instructions from accused to abandon appeal but accused did not give such instructions. Accused brought application to reinstate appeal. Application granted. Dismissal order was set aside and appeal was reinstated. Accused estab- lished that appeal counsel was not instructed to abandon ap- peal and accused never sought to do so. Counsel's integrity and commitment to clients' interests were well known to court. How- ever, counsel encountered per- sonal and health problems that rendered him unable to proper- ly perform duties. Accused was entitled to hearing of appeal. R. v. McDonald (Apr. 21, 2016, Ont. C.A., Doherty J.A., David Watt J.A., and Bradley W. Miller J.A., CA M43447 (C44874)) 129 W.C.B. (2d) 529. Interception of Private Communications ADMISSIBILITY OF EVIDENCE Investigative necessity requirement was met Accused was convicted of con- spiracy to import cocaine, im- porting cocaine and posses- sion of cocaine for purpose of trafficking. Accused's factual guilt was not in dispute and he was party to importation into Canada of 43 kilograms of 90 per cent pure cocaine from Peru. Accused appealed con- viction alleging that judicial authorization to intercept his telephone calls should not have been granted. Appeal dis- missed. Authorizing judge was satisfied that investigative ne- cessity requirement was met. It was obvious that other indi- viduals besides accused and his wife were involved in importing such large amount of cocaine. Application judge was engaged in limited review of authoriz- ing judge's decision and had to be satisfied that authorization could have been granted on material contained in affidavit. Application judge was aware that affidavit contained factual error, but was also satisfied that affidavit nonetheless supported finding of investigative neces- sity. There was no error in appli- cation judge's analysis. R. v. Lapple (Apr. 11, 2016, Ont. C.A., Doherty J.A., David Watt J.A., and Bradley W. Miller J.A., CA C58641) 129 W.C.B. (2d) 555. Mental Illness DETENTION Board's finding that patient posed significant risk of harm to public was not unreasonable Patient was found not crimi- nally responsible on account of mental disorder on charges of forcible seizure of child, as- sault, assault with weapon, and breaches of probation, in rela- tion to two disturbing incidents with two different children. Board ordered patient detained at secure forensic unit with es- corted hospital, grounds, and community privileges. Patient appealed that disposition and sought absolute discharge or conditional discharge in al- ternative. Appeal dismissed. Board's finding that patient posed significant risk of serious harm to public was supported by expert evidence of two doc- tors. There was no objection to admissibility of police threat assessment report at hearing, and it was properly admissible. Board's finding that patient posed significant risk of harm to public was not unreasonable, but was supported by evidence, particularly evidence of doctor that patient remained unstable and required treatment with psychiatric medication in or- der to stabilize his mental state. There was no basis to interfere with this finding. Board at- tended to patient's submission that he be transferred to differ- ent hospital and rejected it on therapeutic and other grounds. There was no error with that decision. Given board's finding that patient posed significant risk to community, there was simply no basis for conditional discharge. As such, board com- mitted no error in not consid- ering it. Hart, Re (Apr. 18, 2016, Ont. C.A., Doherty J.A., David Watt J.A., and B. Miller J.A., CA C61013) 129 W.C.B. (2d) 589. Motor Vehicles DRIVING WHILE DISQUALIFIED Accused was acquitted on count of driving while disqualified Accused appealed his convic- tions for driving while dis- qualified and assault. At trial, accused admitted that he was disqualified from driving. Crown submitted that this ad- mission extended to encom- pass all elements of s. 259(4) of Criminal Code offence, includ- ing public nature of driveway. Appeal against driving while disqualified allowed; accused acquitted on that count. Trial judge accepted complainant's evidence that accused was oper- ating motor vehicle. Trial judge made no finding on location of vehicle. Evidence disclosed that operation of vehicle took place in driveway of home approxi- mately 20 feet from entrance of garage. Apart from that evi- dence, there was no additional evidence on whether driveway constituted street, road, high- way or other public place within s. 259.1 of Code. Nor was there any evidence led on whether there was express, inherent or implied invitation to access driveway. In these circumstanc- es verdict was unreasonable one. R. v. Amell (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., Ja- net Simmons J.A., and S.E. Pep- all J.A., CA C60071) 129 W.C.B. (2d) 592.

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