Law Times

Law Times • January 30, 2017 Page 15 www.lawtimesnews.com However, it was not clear how motion judge calculated damages and what evidence he relied on. Reasons provided with respect to quantification of damages, in excess of conceded amount of $33,335, were not sufficient to al- low meaningful review. Appeal with respect to liability was dis- missed, but matter was remitted back to motion judge for determi- nation of quantum of damages. Chavdarova v. Staffing Ex- change Inc. (2016), 2016 Car- swellOnt 18075, 2016 ONCA 874, K. Feldman J.A., P. Lauwers J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 CarswellOnt 3870, 2016 ONSC 1822, Gray J. (Ont. S.C.J.). Estates and Trusts POWER OF ATTORNEY Continuing or enduring Proceedings were consolidated In 1993, father executed power of attorney in favour of his son. In December 2006, father suffered severe stroke and son closed busi- ness to care for father. Son began to exercise power of attorney and discovered that following his stroke, his father executed other powers of attorney, including two in favour of his aunt and uncle and named his cousin and his wife as substitute attorneys. Son applied to be appointed father's guardian of person and property and for declaration that his power of attorney for property was only one valid and for consolidation of proceedings. Cousin applied for identical relief. Cousin's applica- tion was granted and son's appli- cations were dismissed. Son ap- pealed. Appeal allowed. Applica- tion judge erred in finding cousin was stranger to proceedings since cousin was son of respondents and named as substitute attorney in powers of attorney that were subject of proceedings. There were discrepancies that provided support for son's concern that cousin's power of attorney may be product of undue inf luence and suspicious circumstances. Re- quiring son to litigate same issues in parallel proceedings would risk inconsistent findings and waste resources of parties and court. Issue of son's handling of father's money was central issue in both proceedings. Decision of application judge was set aside and order substituted converting application to action, directing trial of issues and consolidating proceedings. Messmer v. Pilz (2016), 2016 CarswellOnt 18496, 2016 ONCA 893, Paul Rouleau J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.). Health Law CONSENT AND CAPACITY Substitute decision makers Court appointed guardians of property and personal care MR, NB, and KR were YR's chil- dren. MR, who was 57 years old, was incapable of managing her property and personal care. With exception of one year, when she resided with KR and his wife, MR had lived with her mother who was 86 or 87 years of age. KR commenced application to be appointed MR's guardian of her property and personal care, and YR brought counter-application to be appointed together with NB as MR's guardian. Order was made appointing YR and NB as guardians of property and per- sonal care for MR. KR appealed. Appeal dismissed. Application judge's findings were available to him, including his finding that actions taken by KR and his wife were financially motivated. Unvarnished language that ap- plication judge used in making his findings did not meet test for apprehension of bias or bias. Application judge scrutinized parties' respective management plans. Having reviewed relevant legal principles, application judge applied them to evidence before him and concluded that it was in MR's best interests to have YR and NB appointed as her guardians of property and personal care. No basis was seen to interfere with application judge's decision. Roelandt v. Roelandt (2016), 2016 CarswellOnt 18076, 2016 ONCA 858, Weiler J.A., Rou- leau J.A., and Roberts J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 19864, 2015 ONSC 6874, I.F. Leach J. (Ont. S.C.J.). Labour and Employment Law LABOUR LAW Collective agreement Arbitration award was set aside Hospital decided to close some beds in one unit which reduced number of hours that were avail- able for regular part-time nurses. Hospital determined that it would spread reduction in hours across all of its regular part-time nurses. Union contended that hospi- tal ought to have reduced hours based on seniority and that its fail- ure to do so triggered lay-off pro- visions in collective agreement. Union filed grievance. Parties agreed to first pose two questions for determination of arbitrator. Arbitrator concluded that hos- pital was not obliged to schedule regular part-time nurse to level of her commitment if hours of work were not available. Arbitra- tor also ruled that if hospital did not schedule part-time nurse to level of his/her commitment, that failure constituted lay-off. Hos- pital applied for judicial review of arbitration award. Applica- tion granted and matter remit- ted back to arbitrator to proceed to determine balance of issues raised by grievance. Arbitrator's answers to two questions posed were fundamentally inconsistent. In light of express wording of Ar- ticle 2.05 of collective agreement, arbitrator's conclusion on second question did lead to absurdity, in light of her answer to first ques- tion. In end result, arbitrator's award elevated what was clearly intended to be f lexible system, by which hospital would assign work to part-time nurses, to absolute entitlement to work. That result turned on answer to second ques- tion, that was not only inconsis- tent with answer to first question, but was at odds with deal that parties made in their collective agreement. Consequently it was not result that fell within range of acceptable and rational solutions to issue. Arbitration award was set aside insofar as it held that lay-off provisions of collective agreement were triggered by actions of hos- pital. Toronto East General Hos- pital v. ONA (2016), 2016 Car- swellOnt 18349, 2016 ONSC 7331, Dambrot J., Nordheimer J., and King J. (Ont. Div. Ct.); ap- plication for judicial review al- lowed (2014), 2014 CarswellOnt 19218, Felicity D. Briggs Mem- ber (Ont. Arb.). Cases Criminal Law OFFENCES Criminal negligence causing death Appeal of conviction for criminal negligence causing death was dismissed Truck driven by accused drifted into oncoming traffic and collid- ed head-on with mini-van, killing its driver. Accused was convicted of dangerous driving causing death and criminal negligence causing death. Conviction for dangerous driving causing death was stayed in accordance with R. v. Kienapple. Accused appealed conviction for criminal negli- gence causing death. Appeal dis- missed. Accused submitted that trial judge failed to adequately explain to jury elements of crimi- nal negligence causing death and how that offence differs from offence of dangerous driving causing death, and to adequately relate evidence to offence. Trial judge properly instructed jury on elements of criminal negligence causing death and explained dif- ference between that offence and lesser offence of dangerous driv- ing causing death. In response to jury question seeking clarifica- tion about difference between dangerous driving causing death and criminal negligence causing death, trial judge repeated relevant portions of his charge and added that for criminal negligence caus- ing death, conduct must be more marked than for dangerous driv- ing in both physical and mental elements of offence. Trial judge reviewed elements of offence of dangerous driving and summa- rized relevant evidence. R. v. Bhangal (2016), 2016 CarswellOnt 17933, 2016 ONCA 857, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rens- burg J.A. (Ont. C.A.). OFFENCES Sexual assault There was no basis to interfere with sentence Accused and complainant met at social gathering at mutual friend's home. Complainant fell asleep on couch. Trial judge found accused engaged in sexual intercourse with complainant while she slept, without her consent, knowing that she was not consenting. Ac- cused was convicted of sexual assault and sentenced to incar- ceration of 30 months. Accused appealed conviction and sought leave to appeal sentence. Appeal dismissed. Leave to appeal sen- tence granted. Appeal of sentence dismissed. Trial judge's credibility analysis was reasonable and sup- ported by evidence, she properly instructed herself, and she did not improperly shift burden of proof onto accused. Forensic evidence was neutral. There was no basis to interfere with sentence, which was within range. R. v. Sanderson (2016), 2016 CarswellOnt 18094, 2016 ONCA 866, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.). POST-TRIAL PROCEDURE Appeal from convic- tion or acquittal There was no palpable or overriding error Accused was convicted of sexual assault at trial, and sentenced to 18 months imprisonment. Ac- cused claimed that burden of proof was reversed. Accused claimed his evidence was misap- prehended. Accused claimed that verdict was unreasonable. Ac- cused appealed from judgment. Appeal dismissed. Accused's grounds of appeal were all related to findings of fact. These findings were entitled to deference, and no palpable or overriding error was present. Finding of fact that complainant was asleep during sexual assault was supported by evidence. This finding followed previous caselaw as well. R. v. F. (J.) (2016), 2016 Car- swellOnt 18670, 2016 ONCA 900, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 Car- swellOnt 7166, 2015 ONSC 3136, Conlan J. (Ont. S.C.J.). POST-TRIAL PROCEDURE Detention and release after trial Review board reached reasonable decision In 2009, accused punched vic- tim in face, entered nearby bus, poured accelerant on rear seat and set bus on fire. Accused was found not criminally responsible on account of mental disorder. In April 2015 accused was dis- charged from detention subject to conditions. Seven months later, accused was admitted to addition and mental health centre and re- mained as voluntary patient. On his most recent review, review board concluded that detention order with placement on unit in centre was necessary and appro- priate disposition. Accused ap- pealed. Appeal dismissed. Before board, accused conceded that he continued to represent sig- nificant threat to safety of public. Evidence was hardly speculative and was more than sufficient for board to find that accused con- tinued to represent significant threat to safety of public. Decision was entirely reasonable. Hospital's reasonable assessment that ac- cused should reside in approved, supervised community housing and that hospital should be able to return accused to hospital in event of any decompensation in his mental status similar to that which occurred in November and December 2015, meant that conditional discharge was not ap- propriate disposition. Board care- fully considered evidence before it and reached reasonable decision. Edwards, Re (2016), 2016 CarswellOnt 18631, 2016 ONCA 901, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 2826, G. Bea- sley Alt. Chair, P. Cook Mem- ber, S. Southmayd Member, R. Del Frate Member, and W. Jupp Member (Ont. Review Bd.). POST-TRIAL PROCEDURE Evidence Verdict was not unreasonable Accused was charged with sec- ond-degree murder, after shoot- ing of victim during altercation on city street. At trial, accused admitted being present at scene of shooting but denied he was shooter. No witness could iden- tify accused as shooter, but DNA evidence established that accused had stabbed victim. Crown relied on DNA evidence, accused's f lee- ing of scene and evidence of vic- tim's friends who saw shooting. Accused was convicted of sec- ond-degree murder. Accused's cousin was convicted of obstruc- tion of justice, for assisting ac- cused to f lee. Accused and cousin appealed from conviction. Cous- in made no independent submis- sions, so that his appeal rested entirely on that of accused. Ap- peal dismissed. Eyewitness evi- dence had some inconsistencies, but also lent support to Crown's theory. DNA evidence and eye- witness evidence alike showed that accused had stabbed vic- tim. This stabbing, on accused's own evidence, took place near time of shooting. Verdict was not unreasonable, as properly instructed jury could have found accused guilty on evidence. Trial judge rejected accused's attempt to admit evidence, as to victim's involvement in previous murder. Trial judge found no connection between previous murder and possibility that unknown suspect shot victim. Evidence put forth by accused did not meet thresh- old, even though this threshold had been clarified by caselaw since trial. Even had victim been shooter in previous murder, con- nection between incidents was speculative at best. R. v. John (2016), 2016 Car- swellOnt 17370, 2016 ONCA 615, Robert J. Sharpe J.A., David Watt J.A., and David Brown J.A. (Ont. C.A.); leave to appeal re- fused (2011), 2011 CarswellOnt 4140, 2011 ONSC 3313, O'Marra J. (Ont. S.C.J.). CASELAW

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