Law Times

Page 14 May 8, 2017 • Law TiMes www.lawtimesnews.com CASELAW During "rest period", employees, including workers, claimed and benefited from employment in- surance benefits. This practice was uninterrupted for 13 years until in 2012, when Service Can- ada advised employer that when employee did not exercise se- niority right, situation constitut- ed voluntary departure. Record of Employment issued by em- ployer indicated lack of work as cause of departure. Employment Insurance Commission (Com- mission) denied workers em- ployment insurance benefits on basis of voluntary departure. As soon as workers were informed that letter of agreement was no longer valid as of February 2013, workers asserted their right to displace, returned to work, and appealed Commission's deci- sion. Board of Referees allowed appeal against Commission's decision. Commission's ap- peals following decision were dismissed by Social Security Tribunal Division Appeal (DA). DA concluded that, light of par- ticular circumstances of case, workers by did not voluntarily leave their employment. Attor- ney General brought application for judicial review. Application dismissed. DA's findings of fact were reasonable as they were based on evidence heard and other documentary evidence on record. DA was reasonable to conclude that workers did not choose to refuse to work in order to allow other employees to work in their place, given absence of evidence before Board of Refer- ees that workers we previously notified by their employer, and union of cancellation of letter of agreement signed in 2001. DA did not have to determine whether workers were justified in leaving their jobs. Any em- ployee, who, having regard to his or her seniority, was entitled to work but chose to allow another employee to work, voluntarily left his or her employment and did not establish justification under law. Canada (Procureur gé- néral) c. Joncas (2017), 2017 CarswellNat 1032, 2017 CAF 57, Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.). Ontario Civil Cases Civil Practice and Procedure COSTS Costs of appeals Quantum of costs had to ref lect divided success Applicant owners purchased lakefront property, across which ran above-ground pipe drawing water from lake for respondent neighbours' property pursuant to "water pipe easement" docu- ment executed by predecessors in title. Neighbours entered into owners' property without per- mission on basis that pipe was leaking and had to be repaired. Owners' application for declara- tion that easement was invalid was dismissed and neighbours' counter-application for declara- tion of subsisting easement was granted on terms allowing them to bury new water line within boundaries of easement. Own- ers' appeal was allowed in part, to vary declaration to limit ease- ment to leaving existing pipeline in present position and allowing neighbours to make only those repairs to which owners agreed in advance. Costs submissions received. Owners awarded costs in amount of $8,000. There were no unusual circumstances justifying departure from usual approach of setting aside order for costs below. As appeal was allowed only in part, it did not automatically follow that own- ers were entitled to full costs of proceedings below. Quantum of costs had to ref lect that there was divided success. Owners enjoyed greater success as they succeeded on issues that drove proceedings below, namely whether neighbours could enter onto their lands without their prior permission to repair pipe- line and whether neighbours had right to replace existing pipeline. Owners' suggestion about neighbours' conduct, namely that there was no leak in pipeline, was based on cor- respondence that arose after conclusion of proceedings and which had not been tested in crucible of litigation. Meaning to be taken from correspon- dence was disputed and record would not support credibil- ity findings necessary to resolve dispute so as to find reprehensi- ble behaviour warranting sanc- tion of costs. Mihaylov v. 1165996 Ontar- io Inc. (2017), 2017 CarswellOnt 3741, 2017 ONCA 218, Eileen E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1653, 2017 ONCA 116, E.E. Gillese J.A., M.L. Ben- otto J.A., and L.B. Roberts J.A. (Ont. C.A.). LIMITATION OF ACTIONS Real property Plaintiff failed to show that their predecessor in title established adverse possession Defendant owned vacant lot ad- jacent to plaintiffs' lot. Both lots were converted to land titles in 2001. Defendant listed its lot for sale. Plaintiffs brought action for declaration that they owned portion of defendant's lot ("dis- puted lands") through adverse possession. Action was dis- missed. Plaintiffs failed to show that their predecessors in title (H) established adverse posses- sion over disputed lands prior to conversion to land titles, or that H's acts of possession had inten- tion of and effectively excluded true owner from possession. Trial judge found that use of de- fendant's lot by H was seasonal and intermittent at best, which did not meet requirement of be- ing constant and continuous, so there was no actual posses- sion of disputed lands. Plaintiffs appealed. Appeal dismissed. It was clearly arguable that H's use of disputed lands was suffi- cient to establish actual posses- sion. However, plaintiffs' claim failed on second branch of test for adverse possession, as they failed to show that H intended to use disputed lands in manner inconsistent with right of true owner to possession. H testified that he completed fence that en- closed disputed lands in belief that they were part of his prop- erty, and that he built concrete steps and two sheds on disputed lands. Mutual mistake could not be established on record; nor could argument of unilat- eral mistake by H be supported. It was open to trial judge to con- sider agreement of purchase and sale and statutory declaration when plaintiffs purchased their lot in rejecting H's evidence that he believed he owned disputed lands. Trial judge's conclusion that H knew he had no claim to defendant's lot was not palpable and overriding error. Sipsas v. 1299781 Ontario Inc. (2017), 2017 CarswellOnt 4409, 2017 ONCA 265, Alexan- dra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1572, 2016 ONSC 212, Hood J. (Ont. S.C.J.). PARTIES Intervenors Amicus role did not require party to be neutral or disinterested Appellants MS and GS had brought action against respon- dent C and city, claiming that property owned by C was not zoned for its commercial use as restaurant. Action was dis- missed as statute-barred, and appeal was dismissed. MS and GS brought another action against city, which was also dis- missed. In subject proceeding, MS and GS sought injunctive relief against C. At hearing of application, counsel for city at- tended with intention to make submissions. Counsel had been advised that city would be added as party, which GS and MS de- cided not to do. Over GS's ob- jection, counsel was allowed to speak as amicus curiae. Applica- tion judge ruled in favour of C. MS and GS claimed that appli- cation judge erred, in allowing counsel to act in amicus role. MS and GS claimed that city was not neutral party. MS and GS ap- pealed from application judge's judgment. Appeal dismissed. Amicus role did not require par- ty to be neutral or disinterested. City had role to play in assisting court, with history of litigation. In any event, there was no merit to MS and GS's position. Any er- ror by application judge would not have affected outcome. Scaduto v. Cucu (2017), 2017 CarswellOnt 3815, 2017 ONCA 224, Gloria Epstein J.A., M.L. Benotto J.A., and G.T. Trotter J.A. (Ont. C.A.). Evidence DOCUMENTARY EVIDENCE Public documents Access to private Record of Proceedings should be confined to counsel for parties Requester who was reporter with newspaper made request to Ministry of Health and Long- Term Care records disclosing amount of top 100 annual pay- ments to physicians under On- tario Health Insurance Plan for four years, along with names and specialities of physicians on lists (records). Information and Privacy Commissioner for On- tario adjudicator ordered release of records to requester. Medical association and first and second group of anonymous doctors each brought application for judicial review. Parties agreed to split "private" portion of Re- cord of Proceedings (ROP) from "public" portion, to seal private ROP, and that public ROP would be used for argument. Requester brought motion for order per- mitting non-party newspaper's in-house counsel and its editor access to private portion of ROP. Motion dismissed. Access to pri- vate ROP should be confined to counsel for parties. Usual prac- tice was not to allow non-parties or even parties themselves ac- cess to such information. News- paper was not party to applica- tions. Requester's suggestion that newspaper simply be added as party did not find favour with applicants and would be inap- propriate without formal mo- tion. Nor had requester estab- lished there was need for news- paper's counsel or editor to have access to private ROP. In any event, request was premature. Ontario Medical Assn. v. Ontario (Information and Privacy Commissioner) (2017), 2017 CarswellOnt 3658, 2017 ONSC 1650, Nordheimer J. (Ont. Div. Ct.). Health Law CONSENT AND CAPACITY Capacity Board reasonably found that individual lacked capacity to consent to proposed treatment Individual was 28 years of age, and lived with his parents. He received income support from provincial disability support plan, and had received treatment for schizophrenia for 12 years. During that time, he had seven psychiatric hospital admissions totalling 187 days and had been subject of several community treatment orders, most recently ending in July 2015 when his father, who had acted as his substitute decision maker, with- drew his consent. Individual was mostly stable from 2005 to 2014 and on medication or community treatment order for part or most of that time. He experienced decline in his men- tal health commencing in 2014, leading to involuntary admis- sion to hospital in June 2016 and subsequent finding by psychia- trist, confirmed by consent and capacity board, that individual was not capable of consenting to treatment with anti-psychotic medications and ancillary medi- cations in oral and intramuscu- lar forms. Individual appealed. Appeal dismissed. Board's deci- sion to effect that individual was not capable to consent to treat- ment with anti-psychotic medi- cations, and that he was inca- pable of consenting to treatment with side-effect and anti-anxiety medication was confirmed. Board's finding was reasonable with respect to individual lack- ing capacity to consent to pro- posed treatment. Individual's evidence was contradictory with respect to whether treatment would benefit or not and this was representative of disordered thinking. Inconsistencies in in- dividual's behaviour and testi- mony were indicative of his dis- order. Individual's disordered and likely delusional thinking precluded him from being able to weigh risks and benefits of treatment, leading to finding that he could not appreciate consequences of decision to take treatment or not. Board did not misapprehend evidence. Board's decision was within range of reasonable outcomes in all cir- cumstances. Board reasonably found that when individual said he suffered from psychotic episodes and would need treate- ment eventually, he was not able to understand benefits of medi- cation nor that his mental con- dition would further deteriorate without it. Mitchell v. Banik (2017), 2017 CarswellOnt 3154, 2017 ONSC 1123, Gilmore J. (Ont. S.C.J.); af- firmed (2016), 2016 CarswellOnt 13988, Glenn Stuart Presiding Member, Sabita Maraj Member, and Karen Hand Member (Ont. Cons. & Capacity Bd.). MALPRACTICE Negligence Specialist's actions were below standard of care Deceased patient R had history of abdominal pain. R visited defendant gastroenterologist C with complaints of pain, in 2008. C diagnosed R with ir- ritable bowel syndrome (IBS), and gave R recommendations to manage IBS. C did not rec- ommend further testing, but prescribed R trial drug which had helped patients with similar symptoms. R continued to have pain, and was referred to general surgeon by family doctor. R un- derwent endoscopy procedure in 2009. R was referred back to C, who recommended gastros- copy for R. C claimed that R told him that she was on clear liquid diet. C recommended that R stay on this diet, and not have anything to eat or drink on night before surgery. R ex- perienced regurgitation, during surgery. R was discharged, but

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