The Lawyers Weekly - June 25, 2010

assessed at $1,500,000. Future care costs were assessed at $1,087,342 before a tax gross up. The award was reduced by 15 percent for contingencies.

Galka v. Stankiewicz, [2010] O.J. No.
2046, Ont. S.C.J., Baltman J., May 17/10.
Digest No. 3008-011 (Approx. 17 pp.)

EMPLOYMENT
& DISMISSAL LAW

RIGHT OF ACTION – Plaintiff was required to follow the procedure set out in the Public Hospitals Act (Ont.) to resolve her dispute with defendant hospital.

Motion by defendant for an order dismissing or staying plaintiff’s action on the basis that the court did not have jurisdiction over the dispute. Plaintiff was a licensed psychiatrist and had worked at defendant hospital for 17 years. In November 2008 she issued a statement of claim against defendant claiming damages for breach of contract and alleging constructive dismissal. Defendant argued that plaintiff was never an employee of defendant but was an independent practitioner with privileges at the hospital and must follow the procedure set out in the Public Hospitals Act (Ont.) and move before defendant’s Board and/or the Health Profession Appeal and Review Board.

HELD: Motion granted. Plaintiff was
appointed to defendant’s medical staff and,
in order to continue to work there, had to
apply on an annual basis for an appoint-
ment, in accordance with defendant’s
bylaws and the procedures outlined in the
Act. Plaintiff was not an employee of
defendant. She was free to work as a psych-
iatrist elsewhere, which she did. Section 41
of the Act set out a comprehensive code to
deal with disputes arising from decisions
not to appoint or re-appoint, or decisions
which changed or substantially altered an
individual’s hospital privileges. The proper
procedure was for plaintiff to proceed by
way of the statutory scheme at first
instance.

HELD: Motion allowed. In the present action, plaintiffs asked the court the same questions as determined by the Tribunal, but sought different findings with respect to causation. In order to be successful, plaintiffs would need the court to make findings which directly contradicted the findings of the Tribunal. The parties to whom the estoppel was sought to apply were present and represented before the Tribunal. There was nothing in the circumstances of the case that would render the operation of the doctrine of issue estoppel an injustice.

Roumanes v. Dalron Construction
Ltd., [2010] O.J. No. 2105, Ont. S.C.J.,
Gordon J., May 19/10. Digest No. 3008-
013 (Approx. 7 pp.)

R. v. S.G.T., [2010] S.C.J. No. 20, S.C.C., per Charron J. (McLachlin C.J. and Deschamps, Abella and Roth-stein JJ. concurring), reasons dissenting by Fish J. (Binnie J. concurring), May 27/10. Digest No. 3008-014 (Approx. 20 pp.)

FAMILY LAW
ESTOPPEL
EVIDENCE (CRIMINAL)

ISSUE ESTOPPEL – Plaintiffs were estopped from bringing an action with respect to defects in their house because the same matter had been determined by the New Home Warranty Program.

Motion by defendant to dismiss the action as an abuse of process based on issue estoppel. Plaintiffs had contracted with defendant to construct a house for them. After taking possession, plaintiffs complained about several defects and filed a complaint with the New Home Warranty Program. The claims were dismissed by the Tribunal, and the decision was not appealed. In the present action, plaintiffs sought compensation for the same defects they sought

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ADMISSIBILITY – The trial judge
did not err in failing to conduct a voir
dire to determine the admissibility of an
email from accused to his former wife.

Appeal from a decision setting aside accused’s conviction and ordering a new trial on the basis that the trial judge erred by failing to conduct a voir dire, on his own motion, to determine the admissibility of an email. The complainant alleged that accused, her step-father, touched her in a sexually inappropriate manner. Accused was interviewed by the police and wrote an apology to the complainant on a police statement form. The apology was subsequently ruled inadmissible at trial, on the basis that the police officer had offered an inducement by implying that accused would not be charged if he apologized. After being charged, accused sent an email to the complainant’s mother, his former wife, consenting to travel plans involving the children. The email included another apology. At trial, there was no objection raised to the filing of the email as an exhibit or to the mother’s testimony about the email. The trial judge did not believe accused’s claim that the apology related to an incident where he allowed the complainant to drink alcohol. Accused was convicted. The Court of Appeal allowed accused’s appeal.

HELD: Appeal allowed. The trial judge committed no error in admitting and relying upon the evidence concerning the email. When statements were made by an accused to ordinary persons such as friends or family members, they were presumptively admissible without the necessity of a voir dire. It was only where accused made a statement to a “person in authority”, that the Crown bore the onus of proving the voluntariness of the statement as a prerequisite to its admission. When the receiver of the statement was not a typical or obvious person in authority, it usually fell on the accused, in keeping with the evidential burden, to raise the issue and request a voir dire. In this case, the recipient of the email was not a conventional person in authority. The mother did not have any control over the prosecution and she was not operating on behalf of the authorities. Further, accused did not raise the issue at trial. Therefore, the trial judge did not err by failing to hold a voir dire. Moreover, the defence consented to the admission of the evidence. There was no basis to conclude that the trial judge ought to have interfered with the decision of counsel to consent to the admission of the evidence.

CHILD SUPPORT – The appellate court dismissed the mother’s appeal from the decision of a chambers judge regarding the amount of income to be imputed to the father for child support purposes.

Appeal from an order declining to impute income to the father for the purposes of child support. The parties had two children who resided with the mother. The parties were paid a monthly income from the father’s company. In 2007, a creditor of the company obtained an attachment order. In December 2007, a trial judge declined to attribute any income to the father for support purposes as a result of the attachment order. In 2009, the trial judge again declined to impute income to the father. That decision was overturned on appeal on the basis that there was an ample evidentiary basis to impute income because there had been a change in circumstances for the company. A chambers judge cited the December 2007 trial decision in finding that no income could be imputed to the father for 2006 and 2007. The judge imputed an income of $50,000 for 2008 and 2009. Further income was attributed on the basis of funds held in trust by the father’s solicitor. The judge declined to impute investment income based on $2,950,000 in investment property awarded to the father; as such property was not in his name and could not have been invested by him in 2008 and 2009. Interest on those investments was added to the father’s income for 2010. The judge ordered lump sum payment of arrears and required that $100,000 be held in trust as security for future support. The mother appealed.

HELD: Appeal dismissed. When the appeal panel remitted the matter to the chambers judge to determine imputation of income, the panel was not aware of the finding in December 2007 that the father had no income for 2006 and 2007 for the purpose of support. To find that the appeal panel had intended reconsideration of that matter would amount to an improper collateral attack on a trial judgment that was not appealed. In addition, the judge did not err in failing to impute more income to the father for 2008 and 2009, as the judge was entitled to determine that the investment property was not yet available to the father. The interest rate assigned to the investments was not unreasonable given prevailing economic conditions. The security ordered by the judge for future support was not unreasonable given the evidentiary difficulties in determining accurate calculation of future support.