Law Times

December 12, 2016

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Page 2 December 12, 2016 • Law Times NEWS children of like age, intelligence and experience." In the appeal, Boggs noted the boy was of average intelli- gence and had been taught to look both ways when crossing the road on a walk he had done for months. He argued that the boy did not remember to look left before he crossed and that he "knew better." The Court of Appeal, however, upheld Per- ell's finding that there was not enough evidence to show the boy was experienced at crossing busy streets. Perell had found that Saumur was not equipped to judge distance and speed at his age and that he may not have seen the oncoming car as he for- got to look left before crossing. Perell concluded that Saumur did not act below the standard of a reasonably prudent child his age of similar intelligence. The City of Hamilton argued in its appeal that being forgetful, distracted or confused is not an excuse for negligence. The Court of Appeal, however, determined that Perell was entitled to draw the inferences he did in order to come to his conclusions. LT seriously considering applying for leave to appeal the decision to the Supreme Court of Canada. ". . . [T]he decision raises seri- ous issues regarding how judges are supposed to evaluate issues involving contributory negli- gence in children and the impact of prior similar cases in assess- ing that negligence," says Boggs, a partner with Lerners LLP. He noted that other cases with "virtually the same facts" have found children of similar age 75 per cent at fault for neg- lecting to look both ways before stepping into traffic. "The two cannot be recon- ciled and we do not believe the Court of Appeal properly dealt with this inconsistency in its rea- sons," he says. "It is not sufficient to say that while another judge may have reached a different conclusion the decision reached was open to the trial judge." Robert Hooper, the lawyer representing the plaintiffs, says he does not think the defendants will be granted leave, as the law in this area is clear and the case was fact specific. "The law on contributory negligence of children has been pretty clear in this country for years. The judge applied it to these facts," Hooper says. Leto says the decision shows that determining contributory negligence on the part of a child is a very fact-based assessment. "When you see an assessment of contributory negligence, you have to take a look at did they run? Were they at a crosswalk? What was their conduct before they walked out into that road? And also age is a factor," she says. In order to determine wheth- er Dean Saumur was contribu- torily negligent, the court used a test of whether the child "exer- cised the care expected from Continued from page 1 Judge orders city to pay almost $8 million in damages for many years to come," Trois- ter told Convocation toward the beginning of what turned into a daylong discussion, originally scheduled for 80 minutes. "If the recommendations are so sound, what is the fear of looking at them separately?" Troister added. The motions provoked an emotional debate with many benchers sharing their own per- sonal stories of racism they have encountered. The idea of voting on the mo- tions on a piecemeal basis was unpopular among diversity as- sociations, who have said the recommendations did not go far enough, but they supported the report under the understanding the whole package would be ap- proved together. "I think our advocacy would have been different if we had known that what was being rec- ommended or what was being considered was voluntary," says Agarwal. A number of benchers took issue with a recommendation that requires every licensee to "adopt and abide by a state- ment of principles acknowledg- ing their obligation to promote equity," saying having such a requirement would amount to creating a thought crime. Bencher Joanne St. Lewis and a number of others took issue with a recommendation that the law society will provide firms of at least 25 licensees with data concerning the demographic makeup of their employees from information gathered in annual reports. St. Lewis said this recom- mendation could be harmful for lawyers who do not want their confidential information submitted to their firm and that firms could easily identify those the information came from. "The reality of firms over 25 is that there is not sufficient criti- cal mass in just about any firm I can think of to provide that level of cover for people," she said. "Those individuals should not be forced into a position where you are returning the informa- tion to their employer if they chose not to tell them," she added. She later introduced a suc- cessful amendment, which changed the recommendation so that it would be "consistent with the best practices established to protect licensees vulnerable to harm" that could come from the disclosure. Despite some bench- ers' opposition to some of the recommendations, members of the working group said it was vital for them to be voted on an omnibus basis because they were designed to work together. Troister's motion failed in a 31- 19 vote with two abstentions. While diversity associations applauded the approval of the recommendations, they noted that getting the report passed was just a start. "This is still a base level of recommendations and there is still lots of work to be done," says Agarwal. LT Motion to split up report fails Continued from page 1 © 2016 Thomson Reuters Canada Limited 00239QW-A84428-CM Special Edition – In Memory of The Honourable Justice Marc Rosenberg New Edition Martin's Annual Criminal Code, 2017 Edition With Annotations by Edward L. Greenspan, Q.C., The Honourable Justice Marc Rosenberg, and Marie Henein, LL.B., LL.M. Order # 804933BE-65203 $187 Hardcover + CD-ROM + Thomson Reuters ProView™ eBook approx. 2540 pages August 2016 978-0-88804-933-9 2 additional annotated supplements $20-$30 per supplement Annual volumes supplied on standing order subscription e-Notes delivered by email on standing order subscription upon request Multiple copy discounts available eBook only A26512-17ON-65203 $161 Print only 804933-65203 $161 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Available risk-free for 30 days Order online: Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Access Martin's Annual Criminal Code 2017 Edition in the office, on the move, at meetings, or in court Experience the freedom and flexibility to work wherever and whenever you want, with or without an Internet connection. You can access the eBook version* of this publication on Thomson Reuters ProView™ through your web browser, or you can download it to your desktop or laptop (Windows and Mac), iPad, or Android tablet. Discover the complete collection of ProView eBooks at Find a complimentary training session at *Not available to trade bookstores, third-party distributors and academic institutions. Windows is a trademark of Microsoft Corp. Mac and iPad are trademarks of Apple Inc. Android is a trademark of Google Inc. New in this edition Case law highlights • Goodwin v. British Columbia (2015 S.C.C.) • R. v. Lloyd (2016 S.C.C.) • R. v. Borowiec (2016 S.C.C.) • R. v. Safarzadeh-Markhali (2016 S.C.C.) • R. v. Gerling (2016 B.C.C.A.) Legislative highlights Features all of the latest legislative amendments, including those stemming from: • Economic Action Plan 2015 Act • Justice for Animals in Service Act (Quanto's Law) • Zero Tolerance for Barbaric Cultural Practices Act • Common Sense Firearms Licensing Act • Tougher Penalties for Child Predators Act • Respect for Communities Act • Anti-Terrorism Act, 2015 • An Act to Amend the Criminal Code (Exploitation and Trafficking in Persons) • Victims Bill of Rights Act • Controlled Drugs and Substances Act Schedules, amended by the following: — SOR/2016-13 — SOR/2015-209 — SOR/2015-192 — SOR/2015-190

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