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Page 14 May 29, 2017 • Law TiMes www.lawtimesnews.com CASELAW to determine whether Exhibit H was authentic document; and ac- cused respondents of conspiring to hide true zoning for appellant's property. Respondents awarded full indemnity costs of in amount of $50,976.96. Respondents were most successful party. It could not have been outside reason- able expectation of appellant that court proceeding, reopened on basis of fraudulent document, would attract significant cost award. Hours charged and rates set out by respondents, relative to circumstances of this case and counsel's year of call, were fair and reasonable. In this case, there had been fraud and unproven al- legations of conspiracy: impact of authentic Exhibit H were used to buttress argument for reopening appeal and was important factor in court's decision to reopen ap- peal. Reasonable conclusion was that failure to consider new doc- ument that could resolve dispute would constitute miscarriage of justice. After applying factors in R. 57.01(1) of Rules of Civil Proce- dure to this case and noting egre- gious nature of appellant's con- duct, elevated cost awarded was fair and reasonable in all circum- stances of this case. This was not case where cost award would ad- versely impact on access to justice issues. On contrary, elevated cost award was necessary to deter ap- pellant from using court system to adjudicate frivolous claims. Elbasiouni v. Brampton (City) (2017), 2017 CarswellOnt 4876, 2017 ONSC 2088, Barnes J. (Ont. S.C.J.); additional rea- sons (2015), 2015 CarswellOnt 15057, 2015 ONSC 6149, Barnes J. (Ont. S.C.J.). Construction Law CONTRACTS Breach of terms of contract Contractor breaching contract by failing to provide necessary labour and materials Appellant was contractor. Par- ties entered into contract dated July 19, 2010 which contemplated three projects. Work was under- taken and property owner made payments although not strictly in accordance with payment sched- ule attached to contract. Parties agreed that respondent had paid total of $56,900. Contractor ap- pealed from judgment dismiss- ing claim and property owner's set off claim with no costs awarded to either party. Appeal dismissed. Contractor insisted he had exercised his right pursu- ant to provision 11 which allowed him to stop work if owner failed to make payment. Contractor agreed that property owner had told him she would not pay him because of stairs. That and other evidence was basis upon which Deputy Judge could find that contractor was in breach of con- tract by not providing materials and labour necessary to improve premises in good, workmanlike and substantial manner. Findings on key issue of breach of contract were largely factual and based on opportunity to hear and consider testimony and exhibits. It may be that Deputy Judge made a few mistakes about evidence, such as attributing discussion to having occurred on December 27. But those were inconsequential mis- takes. Contractor failed to dem- onstrate palpable and overriding error and accordingly ground of appeal failed. Delta Construction v. Mac- Millan (2017), 2017 CarswellOnt 3837, 2017 ONSC 1103, Kiteley J. (Ont. Div. Ct.). Public Law SOCIAL PROGRAMS Welfare benefits Director of Ontario Disability Support Program having no basis to limit applicant's eligibility for benefits Applicant's application for On- tario Disability Support Pro- gram benefits was denied by Director on basis of financial ineligibility. Applicant's appeal was allowed, with Director's de- cision rescinded. Director then decided that applicant did not suffer from qualifying disability. Just before hearing of applicant's appeal, Director decided that he was medically eligible but benefits were not paid to him. Applicant filed new application for benefits, with Director again deciding that he was not finan- cially eligible. Applicant's appeal was allowed and Director's deci- sion rescinded but, as Tribunal determined that it lacked juris- diction to render ruling regard- ing eligibility retroactive to first application, he received benefits retroactive to first month af- ter filing of second application. Applicant appealed. Appeal al- lowed. Applicant first applied for benefits more than three years before decision that was subject of appeal. Default expectation was that payment of benefits would start from date that appli- cation was completed. There was no basis in record for applicant to have had to file new applica- tion and Director's submissions to Tribunal demonstrated that two applications were treated as merged into one. There was no basis in record to limit date of applicant's eligibility for benefits to date of new application and Director put forward no evi- dence to support deviation for default position of benefits start- ing from completion of initial application. Applicant had been deprived of default position and deprived of his appeal right by Director making payment pur- portedly under new application rather than of original applica- tion. Issue of applicant's date of eligibility was put before Tribu- nal by applicant. Tribunal had jurisdiction to make any order that Director could have made. Director had no reasonable basis to limit applicant's eligibility for benefits to completion of new application. Marano v. Ontario (Direc- tor of Disability Support Pro- gram) (2017), 2017 CarswellOnt 3696, 2017 ONSC 1604, Kiteley J., Kruzick J., and F.L. Myers J. (Ont. Div. Ct.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Notice of constitutional question Crown bound by declaration that Criminal Code s. 151 unconstitutional Accused was charged with sex- ual interference. Defence ini- tially indicated that it would be challenging constitutionality of mandatory minimum sentence imposed for convictions on this charge but then relied upon case that held that minimum sen- tence under s. 151 of Criminal Code was unconstitutional and of no force and effect. Crown sought order of Mandamus re- quiring defence to file and serve Notice of Constitutional Ques- tion on Attorney Generals of Canada and Ontario, to allow it to defend constitutionality of mandatory minimum jail sen- tence of one year for offence of sexual interference under s. 151 of Criminal Code. Application dismissed. Court agreed with Crown's enunciation of princi- ples of stare decisis, namely that judge is not bound by decision of another judge of same court on same issue. Decision by judge of court of concurrent jurisdiction is of persuasive value only but such judgment should be fol- lowed unless subsequent judge is satisfied that it was plainly wrong. Crown was bound by declaration made by Superior Court judge, with inherent juris- diction, that section of Criminal Code was unconstitutional, was of no force and effect, and was effectively removed from statute books, where notice of consti- tutional question was properly served on Attorney Generals of Canada and of Ontario. Dec- laration under s. 52 of Consti- tution Act that section of law is unconstitutional is not lim- ited to proceeding before court. Court agreed with submission by defence that once declaration is made by judge with inherent jurisdiction that law contravenes Constitution offending section ceases to exist and is of no force and effect. Crown's only rem- edy was to appeal first Superior Court judge's declaration that section of Criminal Code was unconstitutional. R. v. S. (J.D.) (2017), 2017 CarswellOnt 4800, 2017 ONSC 1869, R. Smith J. (Ont. S.C.J.). CHARTER OF RIGHTS AND FREEDOMS Other Charter issues Discoverability doctrine not dispositive of analysis required by Charter s. 24(2) Nexus between impugned evi- dence and Charter breach. Police detained accused driver at road- side as suspect in recent hit-and- run accident. While accused was being detained, police smelled alcohol on his breath, which led to accused being tested on ap- proved screening device and then on breathalyzer. Trial judge convicted accused of driving "over 80". Trial judge found that accused's right to counsel was breached at roadside, but she de- clined to exclude breath results pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms (Charter). Trial judge found that "nothing materially f lowed" from breach of accused's right to counsel ("nothing f lowed find- ing"). Accused appealed. Appeal allowed; accused acquitted. Trial judge committed error in law by failing to conduct three-prong analysis required by s. 24(2) of Charter (Grant analysis). "Noth- ing f lowed finding" did not con- stitute Grant analysis. "Noth- ing f lowed finding" expressed view that breath results were not "obtained in a manner" that in- fringed accused's rights because breath results were unconnected to Charter breaches. In case at bar, there were, at minimum, clear contextual and temporal connections between breath samples and Charter breaches. If accused had been afforded right to counsel immediately upon detention, he might have said nothing, in which case al- cohol might not have been de- tected on his breath. "Nothing f lowed finding" did not con- stitute Grant analysis based on discoverability doctrine. Dis- coverability doctrine cannot be dispositive of Grant analysis, as it is only factor to be taken into account under second prong of Grant analysis. R. v. Lima (2017), 2017 Car- swellOnt 5113, 2017 ONSC 2224, Fairburn J. (Ont. S.C.J.). CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] Police entitled to do 'protective sweep' of house following child protection concerns Motorist called 911 after observ- ing four-year-old child wearing only diaper standing alone at intersection. By time police ar- rived, child's mother was at scene and father explained that child was autistic and had tendency to wander, and that child had dis- covered how to open lock that father had installed on door. Po- lice insisted on examining lock, father agreed, and although sat- isfied with lock, police, who had no warrant, insisted on looking inside house. Numerous mari- juana plants were discovered in locked room at home. Father was arrested and charged with production and possession of marijuana and possession of marijuana for purposes of traf- ficking. Father applied to exclude evidence of marijuana based on breaches of Canadian Charter of Rights and Freedoms. Trial judge found that police had commit- ted three Charter breaches but rejected father's main claim to effect that police breached his rights under s. 8 of Charter when they initially entered his home. Trial judge ruled that Supreme Court of Canada case entitled police to do 'protective sweep' of house because of their 'child protection concerns'. Trial judge held that evidence of marijuana was admissible under s. 24(2) of Charter. Crown withdrew pos- session of marijuana charge and father was convicted of produc- tion and possession of marijuana for purpose of trafficking, and sentenced to 18 months in custo- dy. Father appealed on grounds including that trial judge erred in ruling that police's initial entry into home did not breach s. 8 of Charter. Appeal allowed. Con- victions set aside and acquittals entered. Some evidence of lead investigator indicated that, in ad- dition to being concerned about child's safety, he was also looking for drugs. At time of police atten- dance no exigent circumstances existed and there was no reason to believe that life or safety of anyone at home was at risk. Af- ter police ascertained reason for 911 call they were not entitled to search home. At most, police evi- dence showed that father acqui- esced to police's inevitable intru- sion into his home but not that he consented. Evidence showed that police thought they had right to enter father's home without his consent and warrantless search of home could not be justified on basis of consent. Section 40(7) of Child and Family Services Act did not authorize warrantless entry into home as there was no evidence of risk to child's health or safety if police had tried to ob- tain warrant. R. v. Davidson (2017), 2017 CarswellOnt 4334, 2017 ONCA 257, John Laskin J.A., Eileen E. Gillese J.A., and David Watt J.A. (Ont. C.A.). DANGEROUS OFFENDERS Appeal Sentencing judge's denial to designate accused as dangerous offender upheld Sentencing judge denied appli- cation to designate accused as dangerous offender pursuant to s. 753(1)(a) of Criminal Code. Crown appealed. Appeal dis- missed. Sentencing judge's con- clusion that there was reasonable possibility of eventual control of accused's risk in community was not tainted by legal error and was reasonable. There was evi- dence that accused was treatable. Control of accused's risk did not rely solely on community super- vision. Recommended resources within community were within mandate of provincial mental health care system and available to persons diagnosed as need- ing them, subject to wait lists. And Dr. W's evidence was that there would be sufficient time between imposition of sentence and accused's release on Long Term Supervison Order to con- quer waiting lists and permit

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