Law Times

May 8, 2017

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Law Times • may 8, 2017 Page 15 CASELAW felt ill that night with husband calling ambulance for her. R was taken to hospital and intubated, but lung infection had spread to other organs. R was taken off life support at hospital, on agree- ment of husband and son. R's husband and son alleged that C's negligence caused aspiration of lungs, which led to R's death. Husband and son claimed that R was not adequately prepared for procedure. Husband and son claimed that C should not have proceeded with procedure, once it was apparent that R had food in her stomach. Husband and son brought action against C, for negligence. Action allowed. C's claims regarding R's liquid diet were not supported either by C's sparse notes, or by evidence of husband and son. C's claims were also inconsistent with writ- ten instructions, given to hos- pital for gastroscopy patients. C should have declined to proceed with surgery, when it was clear R had food in her stomach. R was likely not properly instructed. Based on expert evidence, aspi- ration likely took place in hos- pital. Placement of R on left side was consistent with aspiration in left lung. C's actions were below standard of care, and caused R's death. Rycroft v. Gilas (2017), 2017 CarswellOnt 2857, 2017 ONSC 1397, M.D. Faieta J. (Ont. S.C.J.). PROVINCIAL MATTERS Regulation of health professionals Committee failed to provide physician with procedural fairness Inquiries, Complaints and Re- ports Committee (ICRC) of Col- lege of Physicians and Surgeons of Ontario found that applicant family physician's notes were becoming increasingly illegible, that patient record was incom- plete, and that quoted transcrip- tion fee was excessive. ICRC re- quired physician to complete re- cord keeping course, and review of 25 charts by assessor. Assessor concluded that physician did not meet standard of practice with respect to record keeping in 22 charts, and reported on issues of patient care. Assessor's second report, in response to physi- cian's response and in which she revised opinion and withdrew some criticisms, was not pro- vided to physician. ICRC's sec- ond decision required required physician to complete continu- ing education or remediation program and to be supervised by preceptor. Physician brought application for judicial review. Application granted, and mat- ter remitted to different panel of ICRC for reconsideration. ICRC failed to provide physician with procedural fairness. Decision was of importance to physician. Physician had legitimate expec- tation that he would be provided assessor's reports and be given opportunity to respond. College intended to provide report to physician, and did so after ren- dering its decision. Zaki v. Ontario College of Physicians and Surgeons (2017), 2017 CarswellOnt 3709, 2017 ONSC 1613, Sachs J., Nor- dheimer J., and Gilmore J. (Ont. Div. Ct.). Appeal board applied correct test for revocation of physician's privileges Physician developed friendly, consensual relationship with registered nurse employed by hospital with whom he worked closely in catheterization lab. Relationship deteriorated over ensuing months into obses- sion. In February 2012, physi- cian sent nurse threatening let- ter, following which physician was immediately suspended and then given second chance when he agreed to take volun- tary leave of absence pending investigation. In March 2012, physician and hospital signed agreement regarding return to work plan providing in part that physician acknowledge inap- propriateness of his behaviour and that he have no further con- tact with nurse. Letter warned that further violation of code of conduct or other hospital poli- cies could result in discipline up to termination of privileges. In August 2012, physician sent nurse unwanted card and letter, nurse complained, and physi- cian was advised that he would be suspended under hospital's bylaws. In lieu of immediate suspension, physician agreed to voluntary leave of absence from lab pending mental health suspension, but later withdrew consent to take leave of absence from work and undergo men- tal health assessment. Medical advisory council considered physician's request but recom- mended that physician not be allowed to work in lab pending mental health assessment, and in October 2012 physician was suspended upon discovery that he had accessed nurse's personal health records. Harassment of nurse continued after suspen- sion. In October 2013, medical advisory council recommended revocation of physician's hospi- tal privileges, and following full hearing before hospital board, physician's hospital privileges were revoked on basis that his significant and repeated breach- es of law and hospital policy were sufficient to justify revoca- tion. Appeal board found that even though physician did not pose continued threat to safety of patients or staff at hospital, his actions of October 2012 were sufficiently serious or egregious to justify revocation of privileg- es. Physician appealed. Appeal dismissed. Appeal board ap- plied correct test for revocation and set out proper question for reconsideration in determining whether or not to confirm de- cision of hospital board. It was reasonable for appeal board to conclude, based on evidence, that physician's mental health condition did not explain his past actions. Reasons of appeal board explained evidence they considered, test applied, and conclusion reached and found that physician's actions were sufficiently egregious to justify revocation of privileges. Gupta v. William Osler Health System (2017), 2017 CarswellOnt 4169, 2017 ONSC 1294, Sachs J., Nordheimer J., and Spies J. (Ont. Div. Ct.). Ontario Criminal Cases Criminal Law POST-TRIAL PROCEDURE Appeal from conviction or acquittal Accused's appeal from conviction for forgery and fraud was dismissed Accused was bookkeeper/ac- countant for large company. In eight-week period 97 cheques, totalling over one million dol- lars, were issued with forged sig- nature of company's vice presi- dent. Accused was convicted of forgery and fraud. Accused appealed conviction on basis, inter alia, that verdict was un- reasonable. Appeal dismissed. Basis of grounds of appeal was complainant's evidence that he agreed he signed some cheques to fraudulent payees during pe- riod when forged cheques were all signed. Accused submitted that trial judge was not entitled to discount that evidence and explain why he did not accept it, but had to treat it as raising reasonable doubt and require Crown to rebut defence of com- plicity. Trial judge thoroughly reviewed evidence and analyzed in particular accused's credibil- ity in light of that testimony. He concluded that in light of rest of complainant's evidence and whole of evidence, evidence could be explained by passage of time, witness' anger at being defrauded, and language dif- ficulties. There was no error in trial judge's approach. He was entitled to accept all or some of witness' evidence. He gave clear reasons for his conclusions. His findings were accorded defer- ence. There was no basis on which to set aside verdict. R. v. Atwal (2017), 2017 CarswellOnt 3919, 2017 ONCA 228, K. Feldman J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 10648, 2015 ONSC 4425, Hill J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 9515, 2016 ONSC 3668, Hill J. (Ont. S.C.J.). PRE-TRIAL PROCEDURE Disclosure of evidence Temporary publication ban over certain material was appropriate Justice issued production or- der directing media company and reporter to produce certain documents and data pertain- ing to communications with or concerning accused, individual charged but not arrested yet for six terrorism offences and who was believed to have left Cana- da to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media compa- ny about accused's involvement with ISIS. Articles were based in large part on communications between reporter and accused through text messaging service. Applicants' application for order setting aside sealing order was dismissed. Trial judge found sealing order to remain in force for two weeks to permit parties to exercise right of appeal after which access would be permit- ted to copy of Information to Obtain (ITO) that had been re- dacted to prevent disclosure of information that was subject to national security claims, in- formation that could disclose identity of specific person and information contained in para- graphs relating to investigative procedures. Trial judge found accused knew before he left Canada that he was under inves- tigation by Canadian security authorities such that there was little risk accused would alter his behaviour on social media. Trial judge found police ought not to be required, as part of price of obtaining production order, to publicly disclose investiga- tive steps that they proposed to take in future. Trial judge found information regarding two in- dividuals was not redacted as those individuals were already well known to media and be- cause far from suggesting that these two persons had any kind of connection to, involvement with or sympathy for terrorists or terrorism, contents of rel- evant paragraphs clearly dem- onstrated opposite. Trial judge found information regarding another individual was redacted as they were in different posi- tion and had told officer that if they had known that their iden- tity would be made public at this stage of process, they would not have talked to police. Trial judge found that person's implicit con- cern for safety was reasonable concern. Trial judge found pub- lication of portions of the ITO concerning accused's alleged in- volvement with ISIS and setting forth statements he was alleged to have made would put his right to fair trial in jeopardy, not only because of potential impact of that information on impartial- ity of jury but also because of its capacity to stigmatize him. Trial judge found based on binding jurisprudence it was not open to accept that as matter of principle allowing access but prohibiting publication was not reasonable alternative. Applicants appealed. Appeal allowed in part. Reason- ableness was proper test when considering constitutionality of order. More interventionist standard of review should not be applied when media is target of order. Trial judge made no misapprehension of evidence, considered relevant factors, and made no extractable legal error. Balancing of competing inter- ests favoured making produc- tion order. Trial judge took into account possible chilling effect and noted that source did not request confidentiality. Crown not required to show that mate- rial sought essential to prosecu- tion. When production orders or search warrants are issued, often there is no prosecution underway and investigation is in formative stage, so that what is necessary to prove case is not known. Reasons for redacting identity of specific individual were reasonable. Certain mat- ters of police procedure should not have been redacted as they steps were obvious. Temporary publication ban over certain materials was appropriate, and parties invited to make further submissions regarding which material should be subject to ban. Temporary order had less deleterious effect on open court principle. R. v. Vice Media Canada Inc. (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexan- dra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 4901, 2016 ONSC 1961, Mac- Donnell J. (Ont. S.C.J.). Evidence HEARSAY Exceptions Business records were admitted pursuant to statutory exception to hearsay rule Accused was convicted of his- torical sexual assault and sexual exploitation against complain- ant. Offences occurred when complainant was between 13 and 16 years old and accused was his Big Brother. Follow- ing parties' agreement, trial judge admitted records from Big Brothers organization as prima facie evidence of truth of their contents and allowed Crown to file them in reply. In particular, trial judge accepted dates in records as to when re- lationship between accused and complainant began and ended, in preference to accused's evi- dence and in corroboration of complainant's evidence. Ac- cused appealed convictions. Appeal dismissed. As statutory exception to hearsay rule, s. 30 of Canada Evidence Act allows business records to be admitted into evidence, upon satisfaction of formal criteria as set out in that section of Act. Crown hav- ing met formal prerequisites under s. 30 of Act, records were admissible as business records as prima facie proof of truth of their contents. Admission of records created no unfairness to accused and came as no sur- prise. Big Brothers records were admissible into evidence, and weight that trial judge gave to records was exercise of his dis- cretion that was subject to defer- ence absent error. No basis was seen to interfere. R. v. Campbell (2017), 2017 CarswellOnt 3742, 2017 ONCA 209, John Laskin J.A., C.W. Hou- rigan J.A., and L.B. Roberts J.A. (Ont. C.A.).

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