will when it was executed. In June 2010,
three weeks after the application was filed,
the estates office issued a deficiency notice
requiring applicant to file a separate affidavit of execution. Applicant’s counsel
spoke to staff at the office in an effort to
have the application processed because the
affidavit of condition contained much of the
information required. The staff were not
prepared to proceed on that basis.
HELD: Affidavit of execution dispensed
with. While the court must be careful in
sanctioning any departure from the use of
prescribed forms, the two affidavit forms
were very simple in content and there was
no danger to the integrity of the court’s process in permitting an applicant to combine
the information contained in each into one
document. To reject applications on such a
minor, technical basis would impose on
applicants, who in good faith have attempted
to provide the required information,
unnecessary additional costs and delays.
Re Wallbridge Estate, [2010] O.J. No.
2482, Ont. S.C.J., Brown J., June 9/10.
Digest No. 3011-007 (Approx. 5 pp.)
EVIDENCE (CRIMINAL)
CHARACTER EVIDENCE – Trial
judge did not err in admitting evidence
of an accused’s bad character.
Appeal from conviction and sentence for
possession and transportation of property
obtained by crime. Accused was charged
after he had checked a suitcase at the airport containing $32,000. Police seized the
suitcase and opened it after obtaining a
search warrant. Accused was subsequently
arrested in a hotel room in New York where
police found 100 pounds of marihuana and
$178,000 in US currency. Police also discovered a marihuana grow operation in a
house rented in accused’s name. The Crown
theorized that the $32,000 in the suitcase
was the proceeds of accused’s illicit drug
activity. The trial judge admitted the evidence relating to the accused’s drug activity
as directly relevant to the Crown’s theory of
the case even though it might also have
reflected on the bad character of accused.
Accused argued that the judge erred in
admitting the drug evidence and in his
assessment of his credibility.
HELD: Appeal dismissed. The trial
judge did not err in deciding to admit the
bad character evidence concerning the New
York arrest and the marihuana grow operation. The evidence was directly relevant to
the Crown’s theory with respect to the
source of the funds and directly linked to
proof of the fact that the currency in question was derived from the illicit drug trade.
The probative value of the evidence outweighed its prejudicial effect.
R. v. Hobbs, [2010] N.S.J. No. 335,
N.S.C.A., per Saunders J.A. (Bateman and
Fichaud JJ.A. concurring), June 16/10.
Digest No. 3011-008 (Approx. 17 pp.)
SILENCE OF ACCUSED – Section
4( 6) of the Canada Evidence Act did not
prohibit an instruction to a jury that an
accused’s failure to testify could not be
used against the accused.
Appeal from conviction and sentence for
conspiracy to defraud the government and
defrauding the government. The Crown
alleged that accused and a co-accused par-
ticipated in a fraudulent scheme involving
the fictitious sale of heavy equipment to
generate Harmonized Sales Tax that was
then not remitted to the federal government
as required. Accused was the principal
architect of the scheme. Accused did not
testify at trial and the co-accused’s counsel
commented in his jury address on that fact.
The trial judge concluded that s. 4( 6) of the
Canada Evidence Act precluded him from
telling the jury that it could not use accused’s
silence at trial as evidence against him and
made no specific reference to accused’s fail-
ure to testify in his instructions. The judge
would have given this instruction had he
thought himself permitted to do so by law.
Accused argued that s. 4( 6) did not prohibit
the trial judge from instructing the jury
respecting his failure to testify.
FAMILY LAW
CHILD SUPPORT – Trial was neces-
sary on the value of taxable benefit
received by the father from his employer.
Appeal from a child support order. The
mother challenged the judge’s decision to
accept, for the purposes of setting the father’s income, the father’s employer’s valuation of a housing benefit provided to him.
The employer rented a home at market rent
and sublet the home to the father at a more
reasonable rent. The court accepted the
employer’s figures as reflected on the father’s income tax return in calculating his
income for the purpose of child support.
The mother also sought payment by the
father of his share of s. 7 expenses. The
mother challenged the judge’s decision to
reduce the father’s support obligation to
reflect the costs he incurred in exercising
access to the child.
HELD: Appeal allowed in part. The
employer was charging the father less rent
than was normal for a house in an average
Canadian city. A trial of the issue of the
value of the taxable benefit the father was
receiving was necessary. The mother could
pay the child’s expenses for extracurricular
activities out of regular child support if she
desired to continue the activities. The activities were optional and there was no reason
to order the father to share those expenses.
The judge failed to consider whether or not
the father would continue to have a higher
standard of living than the mother if
required to pay access costs. The father’s
hardship application for relief from paying
his full support obligation on the basis of
access costs should have been dismissed in
the absence of such evidence.
C.L.E. v. B.M.R., [2010] A.J. No.
679, Alta. C.A., per Côté J.A. (McDon-
ald J.A. and Kent J. (ad hoc) concur-
ring), June 18/10. Digest No. 3011-010
(Approx. 18 pp.)
FREEDOM OF INFORMATION
ACCESS TO INFORMATION –
Supreme Court of Canada restored a
decision that the exclusion of ss. 14 and
19 of the Freedom of Information and
Protection of Privacy Act (Ont.) did not
violate s. 2(b) of the Charter.
Appeal from a finding that the exclusion
of ss. 14 and 19 from s. 23 of the Freedom of
Information and Protection of Privacy Act
(Ont.) did not violate s. 2(b) of the Charter.
Respondent association sought records in
the hands of the Crown relating to a murder case. The documents contained legal
advice and a report on alleged police misconduct. The Act exempted various categories of documents from disclosure but
certain records could be disclosed pursuant
to a discretionary ministerial decision. The
Act provided that some records in the ministerial discretion category were subject to a
further review to determine whether a
compelling public interest in disclosure
clearly outweighed the purpose of the
exemption under s. 23 of the Act. The Act
did not require this additional public interest review for solicitor-client records or law
enforcement records. Appellant minister
refused to disclose either the report or
related documents, stating that the exemptions in ss. 14 and 19 of the Act for solicitor-client privilege and law enforcement privilege covered all the material. The Assistant
Information and Privacy Commissioner
held that the impugned records qualified
for exemption under a number of sections
of the Act, including para. 14( 2)(a) and s.
19. The Divisional Court upheld the decision not to disclose the documents and
agreed with the conclusion that the Act’s
exemption scheme did not violate s. 2(b) of
the Charter. The Court of Appeal found
that the exemption scheme violated the
Charter and allowed respondent’s appeal.
HELD: Appeal allowed. Section 2(b) of
the Charter guaranteed freedom of expression, but it did not guarantee access to all
documents in government hands. Access
to documents in government hands was
constitutionally protected only where it
was shown to be a necessary precondition
of meaningful expression, did not
encroach on protected privileges, and was
compatible with the function of the institution concerned. It was not established
that the absence of a s. 23 review for public interest significantly impaired respondent’s access to documents it would otherwise have had. Law enforcement privilege
and solicitor-client privilege already took
public interest considerations into account
and, moreover, conferred a discretion to
disclose the information on the minister.
The public interest override contained in
s. 23 would add little to what was already
provided for in ss. 14 and 19 of the Act.
The issue of the scope of the Assistant
Commissioner’s discretion under the law
enforcement provision in s. 14 was remitted for reconsideration to determine
whether any or all of the report should be
disclosed. The documents protected by
the solicitor-client privilege in s. 19 of the
Act were exempted from disclosure.
Ontario (Minister of Public Safety
and Security) v. Criminal Lawyers’ Asso-
ciation, [2010] S.C.J. No. 23, S.C.C., per
McLachlin C.J. and Abella J. (Binnie,
LeBel, Fish, Charron and Rothstein JJ.
concurring), June 17/10. Digest No. 3011-
011 (Approx. 24 pp.)
NEGLIGENCE – Trial judge did not
err in discharging a patient from hospi-
tal without warning him of the risks of
deep vein thrombosis.
Appeal from the dismissal of appellants’
action for medical malpractice arising from
the death of D. D died on March 10, 2001 as
a result of a pulmonary embolism following
anterior cruciate ligament (ACL) surgery to
his left knee, performed on Feb. 23, 2001.
On March 8, D complained of shortness of
breath, which was a symptom of a pulmonary embolism. Appellants claimed that
respondent doctor fell below the appropriate standard of care by failing to investigate
and treat for deep vein thrombosis (DVT)
or warn of the symptoms of a pulmonary
embolism before discharging D. The symptoms of DVT included pain and tenderness
in the calf area and, at times, complaints of
fever. D’s hospital records indicated that he
had an elevated temperature on Feb. 25
and 26, but that his temperature was normal on the day of discharge. The patient
care summary for Feb. 26 indicated that D’s
calf tenderness was within normal limits.
The trial judge held that the doctor’s failure
to outline the warning signs or to have
investigated or treated for DVT did not
represent conduct below the applicable
standard of care. There was nothing to suggest the presence of a blood clot or a risk of
a pulmonary embolism beyond the
extremely minimal risk present in every
ACL reconstructive surgery.
HELD: Appeal dismissed. The trial
judge made no palpable and overriding
error in failing to find that, when he discharged D from the hospital, the respondent believed that D was at a heightened risk
for a pulmonary embolism that required a
warning regarding the symptoms of that
condition and an instruction to return to
hospital if any of those symptoms occurred.
Dufresne v. Bartol, [2010] O.J. No.
2581, Ont. C.A., per Feldman J.A. (Arm-
strong J.A. concurring), reasons dissent-
ing by Simmons J.A., June 17/10. Digest
No. 3011-012 (Approx. 10 pp.)
INJUNCTIONS
INTERLOCUTORY INJUNCTIONS
– Plaintiff was not entitled to an inter-
locutory injunction in the absence of
evidence of damages.
Application for an interlocutory injunction restraining defendant S from having
any involvement with defendant B Inc., and
restraining B Inc. from soliciting plaintiff’s
employees or clients until the earlier of trial
or the expiration of 12 months. The underlying action was based on alleged breaches
of contractual and fiduciary obligations. S
was a minority shareholder, director, officer
and employee of plaintiff at the time of his
dismissal in 2009. He was a party to a
unanimous shareholders agreement and a
number of employment agreements. Plaintiff submitted it was clear S subsequently
breached the non-competition and nonsolicitation provisions in the shareholders
agreement. Plaintiff argued B Inc. was to
engage in the same business as plaintiff,
and that S had actively concealed and lied
about his involvement in B Inc.
HELD: Application dismissed. There was
