Law Times

Law Times • JuLy 9, 2012 Presence) v. M.N.R. (Mar. 2012, T.C.C., Lamarre J., File No. 2010-1560(EI); 2010- 1562(CPP); 2010-3719(CPP); 2010-3720(EI); 2010-3404(IT)I) 213 A.C.W.S. (3d) 794 (23 pp.). 2, COURT OF CANADA SUPREME Manslaughter Accused's actions remained Accused brothers charged with manslaughter. After dispute at bar first accused punched deceased repeatedly while second accused assisted and knocked him unconscious. Bouncer then asked who had started fight and punched deceased in back of head and car- ried him out of bar and dropped him on sidewalk. Accused died from head injuries. Trial judge could not decide based on medical evidence which blow or blows caused death. Trial judge acquitted accused and bouncer. Majority of Court of Appeal allowed Crown' significant contributing cause of death and ordered new trial on basis that accused' for" accused's actions deceased tated deceased and that further intervention by bar staff was reasonably foreseeable. Appeal by accused dismissed. "But would not have died so fac- tual causation was established. Open to trial judge to find that bouncer' nected with accused's acts and that accused's actions remained s act was closely con- significant contributing cause of death even if bouncer delivered fatal blow. R. v. Maybin (May 18, 2012, S.C.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34011) Decision at 92 W.C.B. (2d) 55 affirmed. 100 W.C.B. (2d) 446 (32 pp.). ONTARIO CIVIL CASES Appeal LEAVE TO APPEAL No reason to doubt board's Motion by taxpayer to set aside decision refusing leave to appeal two Assessment Review Board decisions. Appellants conclusion that air rights were not land various parcels of land in down- town Toronto. Current value was assessed including appel- lants' rights to use above air- space for development. Board decided air rights were not land, so appellants were not eligible for sub-classification as vacant land, even though appellants had been so entitled before. Appellants argued that, in refusing leave, judge applied wrong test and failed to fol- low recent Supreme Court of Canada decision in Toronto Transit Commission v. Toronto owned s appeal s actions incapaci- (City) (1971), 18 D.L.R. (3d) 68 (S.C.C.). Motion dismissed. While parts of decision were confusing, as a whole, it was clear judge recognized threshold was lower than "wrong or prob- ably wrong" and found there was no reason to doubt board' conclusion air rights were not land. Judge heard lengthy sub- missions on TTC case and clearly explained why it did not compel board to find air rights were land. There was no juris- dictional error. Exchange Tower Ltd. v. Municipal Property Assessment Corp. (Mar. 21, 2012, Ont. S.C.J. (Div. Ct.), Aston, Pepall and Lauwers JJ., File No. 320/10; 321/10) 213 A.C.W.S. (3d) 539 (6 pp.). s Defendants provided man- agement No express intention that communication would not be disclosed Civil Procedure AFFIDAVITS to plaintiffs. Plaintiffs claimed damages arising from defen- dant' and transportation Defendant denied breach of contract and counterclaimed for services rendered to plaintiffs. Defendant brought motion for summary judgment. Defendant filed affidavit of CFO. Plaintiffs brought motion to strike out parts of defendant' s alleged breach of contract. privileged being part of settle- ment negotiations between par- ties. Motion was dismissed. It was arguable that litigious dis- pute was in existence or within contemplation. There was no express intention that commu- nication would not be disclosed. Plaintiffs made bald statement that settlement negotiations were ongoing. There was noth- ing in material to suggest any compromise of position that should be privileged. It was sim- ply accounting and comparison of records. Normerica Inc. v. Echo Global Logistics Inc. (Mar. 19, 2012, Ont. S.C.J., Lemon J., File No. CV-10-3831-00) 213 A.C.W.S. (3d) 553 (9 pp.). s affidavit as Contracts Appeal by plaintiff from order made in Small Claims. Defendant provided plaintiff with quote in relation to seized engine. Once work had begun, defendant advised that damage was more extensive than it was originally thought. Defendant claimed that mechanic for plaintiff gave go ahead for repair. Repairs were effected. Defendant invoiced plaintiff for amount approximately double that of original quote. Plaintiff refused to pay. Defendant com- menced action against plain- tiff. Parties settled on payment of specified amount. Plaintiff alleged that retrieved engine was not in working order. Plaintiff ' action for alleged breach of Plaintiff had constructive knowledge of state of engine PERFORMANCE AND BREACH s CASELAW contract by defendant was dis- missed. Small Claims Judge concluded that plaintiff failed to discharge its burden of proving that settlement entered into with defendant was that, in return for payment, plaintiff would receive completely rebuilt, reas- sembled engine. Appeal dis- missed. Findings of fact were not in error. Finding of mixed fact and law which was basis for dismissal of Small Claims Court claim was not in error. Judge made no legal or palpable and overriding error in dismissing claim. It was no error on part of judge to find that plaintiff ' mechanic knew actual state of engine, and that plaintiff had constructive knowledge of state of engine through mechanic, regardless of fact that mechanic was no longer agent of plaintiff by time of settlement. Rainbow Concrete Industries Ltd. v. Kenworth Toronto Ltd. (Jan. 9, 2012, Ont. S.C.J., Gauthier J., File No. DV-865-10) 213 A.C.W.S. (3d) 635 (11 pp.). s Courts Mother's decision example JURISDICTION Parties had two children. Mother was primarily responsible for children. Children resided in city. Mother took children to different community to live with mother' of maneuvering to obtain unfair tactical advantage extended family. Father com- menced action seeking custody or joint custody. Mother issued petition for divorce in new com- munity claiming equalization, custody and support. Father' s injury to his ankle, consisting of comminuted fracture of his right ankle which required sur- gical procedure. Plaintiff was bedridden in cast for six to eight weeks following surgery. Approximately one year later, plaintiff was able to resume his work duties as Corrections Officer but on lighter scale. Plaintiff continued to experi- ence pain and discomfort not only in his occupational activity but in his reduced involvement in his former recreational activi- ties. Action allowed. Plaintiff was awarded general damages of $50,000. Plaintiff was award- ed damages for economic loss representing general (econom- ic) head of damages at $36,500. Plaintiff was likely to experience continual pain and discomfort in his right ankle. Enros v. Adelaide Investments Inc. (Feb. 1, 2012, Ont. S.C.J., MacKenzie J., File No. CV-08- 0030-00) 213 A.C.W.S. (3d) 651 (17 pp.). Evidence Infant sustained head injury resulting from motor vehicle accident. Plaintiff granted leave to call more than three expert witnesses but no duplication of evidence permitted OPINION EVIDENCE action was stayed by virtue of s. 27 of Children' (Ont.). Father brought motion for mother to return children to city. Father sought leave. Proceedings were commenced within five days of each other. Motion was dismissed. Father and children would not suffer significant prejudice because of delay if stay were not lifted. Parties agreed there were real issues as to prop- erty that required resolution in Superior Court. Mother' s Law Reform Act sion to issue petition in Superior Court in other community indi- cated bad faith. Mother' s deci- sion to bring action outside of city was example of maneuvering to obtain unfair tactical advan- tage. It was not advisable to lift stay. Property issues had to be dealt with in Superior Court. It was more efficient and economi- cal to have all issues resolved in Superior Court. Abdul-Razak v. Ghawi (Mar. 30, 2012, Ont. C.J., Murray J., File No. D56333) 213 A.C.W.S. (3d) 694 (5 pp.). s deci- Damages Action by plaintiff for damages for personal injuries sustained by plaintiff when he was assault- ed by other customers in defen- dant' damages for injuries sustained in defendant' PERSONAL INJURIES Plaintiff awarded $86,500 s bar s bar. Plaintiff experienced www.lawtimesnews.com s motion for leave to call more than three expert witnesses at trial. Plaintiff wished to call eight or nine experts retained for pur- pose of providing expert opinion at trial, six treating practitioners of infant, and two third party experts. Liability and damages were contested. Plaintiff was granted leave to call more than three expert witnesses at trial. Evidence on liability was allowed from two witnesses. Economist was allowed to give expert tes- timony. Police mechanic who filled out vehicle mechanical examination in course of duties was not permitted to testify as expert. No report that complied with Rule 53.03 of Rules of Civil Procedure (Ont.), was tendered for police mechanic. There was no information as to what quali- fications police mechanic had. There was nothing in document police mechanic completed that set out opinion. Neuroradiologist and neuropsychologist were per- mitted to testify. Paediatrician having specialty in area of head injury involving children, speech language pathologist, and author of report on future care costs all had specific area of specialty and leave was granted for them to be called. Leave was not granted for occupational therapist to tes- tify. Occupational therapist co- authored report with individual who since died. Plaintiffs sought to call two other occupational therapists. One occupational therapist could be called because significant duplication in pro- posed evidence of two occupa- tional therapists. Testimony of owner/operator of support ser- vices was not permitted because it would be duplication of other expert evidence and unnecessary. Plaintiffs brought PAGE 17 Hoang (Litigation Guardian of) v. Vicentini (Feb. 14, 2012, Ont. S.C.J., Wilson J., File No. CV-06- 315832-0000) 213 A.C.W.S. (3d) 668 (6 pp.). Family Law Parents required extended therapy to address long-standing issues Child was never in mother's care. None of mother's children were in mother's care. Society worked CHILD WELFARE with mother since 1998. Child had special needs. Relationship between parents was one of volatility and conflict. Mother was victim of physical abuse at hands of partner. Society sought order for child to be made Crown ward and placed in care and custody of society. Society brought motion for summary judgment. Motion was allowed. Parents required extended ther- apy to address long-standing issues. It was not in child' interests to wait to see if mother acquired necessary skills to par- ent child. Risk to child remained substantial. Children' s best v. S. (B.) (Mar. 30, 2012, Ont. C.J., Zuker J., File No. C48509/09) 213 A.C.W.S. (3d) 674 (14 pp.). Human Rights Legislation Application for judicial review of decision of tribunal finding that applicants had discriminated against respondents in provision of services, goods and facilities on basis of race and colour, contrary to s. 1 of Human Rights Code (Ont.). Applicant Association operated lawyers' lounge and library. Policy of lounge and library was that only lawyers and law students were permitted to use facilities. Personal applicant was librarian, who had respon- sibility for ensuring compliance with policy. Respondents were patrons of lounge, and were act- ing as counsel in proceeding tak- ing place at courthouse. Personal applicant asked respondents to confirm they were lawyers or law students. Respondents self- identified as black. Respondents were dressed in business suits, but none were gowned. Tribunal ordered applicants to pay com- pensatory award of $2,000 to each of respondents. Application granted. Decision was quashed. Respondents' complaint was dismissed. Tribunal had no evi- dentiary basis upon which to conclude that personal applicant subjected respondents to differ- ential treatment. There was insuf- ficient evidence for Vice-Chair to determine that personal appli- cant stopping on way to robbing room and questioning respon- dents constituted differential treatment. Fact that incident was contentious did not establish dif- ferential treatment, particularly where there were other situations when non-racialized persons had been offended when asked for contentious did not establish differential treatment DISCRIMINATION Fact that incident was s Aid Society of Toronto

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