The Lawyers Weekly - November 12, 2010

good faith, negligent misrepresentation, and negligence. Plaintiff alleged that the defendant failed to accommodate his disabilities and to properly investigate, assess and evaluate his claim for accommodation. A motion judge struck the claim. The judge found that the matter was outside the jurisdiction of the Superior Court on the basis that the issues at stake related to academics and were thus within the discretion of the university. Alternatively, if the issue was one of human rights, it was properly a matter for the Ontario Human Rights Commission.

HELD: Appeal allowed in part. The Superior Court’s jurisdiction over the action was not ousted by the raising of issues related to the university’s academic function. The action was not an indirect attempt at judicial review of an academic decision. The action claimed that the defendant breached various contractual and tortious obligations causing pecuniary and non-pecuniary damages. However, the action, as presently pleaded, was untenable in law, as plaintiff did not identify the nature or source of a contractual term requiring accommodation. In the absence of a specific contractual provision, the duty to accommodate in the provision of education did not exist independently from the Human Rights Code (Ont.). Plaintiff also failed to make out a claim for negligent misrepresentation based on the professor’s offer to resubmit the paper, or a causal link between any such misrepresentation and the damages claimed. The motion judge’s order was affirmed, but the appeal was allowed in part to permit plaintiff to file an amended statement of claim.

Jaffer v. York University, [2010] O. J. No. 4252, Ont. C. A., per Karakat-sanis J. A. (Feldman and MacFarland JJ.A. concurring), Oct. 7/10. Digest No. 3026-006 (Approx. 13 pp.)

CRIMINAL INJURIES
COMPENSATION
COMPENSABLE INJURIES –
Appellant did not meet criteria for a
nervous shock and was not entitled to
compensation.

Appeal from a decision of the Criminal Injuries Compensation Board denying appellant’s claim for compensation as a victim of violent crime under the Compensation for Victims of Crime Act (Ont.). The crime in question was a sexual assault of appellant’s daughter at the hands of her husband that appellant was informed of some years after the incidents occurred. The Board found that appellant had not demonstrated that she met the criteria for nervous or mental shock. Appellant submitted that the Board erred in its treatment of her case.

HELD: Appeal dismissed. In order to recover for nervous shock, four criteria had to be satisfied, one of which was proximity. The claimant had to see or hear the event or its immediate aftermath and suffer nervous shock as a result. While the Board accepted that appellant suffered greatly, they correctly found that all of the criteria for nervous shock had not been met. Appellant did not see or hear the event or its immediate aftermath. She was simply told about it. The court, like the Board, was circumscribed by the law as it has evolved relating to the injury of nervous shock.

F.K. v. Ontario (Criminal Injuries Compensation Board), [2010] O.J. No. 4269, Ont. Div. Ct., per Sachs J. (Brown and Herman JJ. concurring), Oct. 6/10. Digest No. 3026-007 (Approx. 3 pp.)

EVIDENCE (CRIMINAL)

EXPERT EVIDENCE – Trial judge did not err in his consideration of the evidence of a pathologist in concluding that appellant had inflicted injuries on her daughter.

Appeal from conviction for manslaughter. Appellant was accused of killing her two-year-old daughter. At trial, the pathologist’s expert opinion was that the cause of death was non-accidental blunt force injury to the upper abdomen, which caused the child’s heart to stop beating. The child’s aunt had told police that, shortly before the child’s death, she had seen the accused feed the child, hit her on the back of her head and throw her into a bedroom where she hit the bed. Those statements were not made again at trial. The defence argued that the child choked to death on porridge she had been eating and the abdominal injuries were caused by CPR. Relying extensively on the evidence of the pathologist, the trial judge was satisfied that appellant struck the child forcefully in the chest, causing the death.

HELD: Appeal dismissed. The autopsy report and the pathologist’s evidence did not demonstrate a confirmation bias or a “thinking dirty” approach. The pathologists’ reference to the aunt’s statements to police was properly included in her report. Given the pathology evidence of multiple bruises, multiple rib fractures and severe abdominal injuries, appellant had not demonstrated that the pathologist inappropriately relied exclusively upon the aunt’s statement to police for her opinion. The pathologist carefully considered the possibilities put to her, and explained why she concluded that the possibilities that the child aspirated and was subsequently injured during resuscitation attempts were very unlikely, not impossible, and not credible. The trial judge’s reasons revealed that he considered the relevant evidence, including the evidence pertaining to the alternate explanations for the child’s death which had been suggested by the evidence and defence counsel. The judge did not err when he concluded that the only rational inference to be taken from the circumstances was that appellant inflicted the non-accidental blow on the child.

R. v. Thomas, [2010] M.J. No. 300,
Man. C.A., per Hamilton J.A. (Freedman
and Chartier JJ. A. concurring), Oct. 12/10.
Digest No. 3026-008 (Approx. 18 pp.)
FRANCHISES
DISCLOSURE – Disclosure document
provided by defendants to plaintiff was so
materially deficient as to amount to no
disclosure at all.

Application for summary judgment. The
parties entered into a License Agreement in
2007 in which defendant granted plaintiff
the right and license to use the MBCO sys-
tem and trademarks. Defendant Associates
held the right to sub-franchise MBCO res-
taurants and cafes in Ontario. At the same
time, plaintiff entered into a sublease for the
premises in which the franchise would be
operated. Plaintiff dealt with defendant E,
who was a principal of Associates. Plaintiff
incurred significant expense in the prepara-
tion of the premises for the operation of an
MBCO restaurant. However, in March
2008, it rescinded the Agreement and
alleged that it never received a disclosure
document as required by the provisions of
the Arthur Wishart Act (Franchise Dis-
closure) (Ont.). Plaintiff sought a declara-
tion that the License Agreement was
rescinded, refund of $146,642 for moneys
invested in the franchise and rescission of
the sublease. Defendants argued that the
disclosure document given to plaintiff satis-
fied the requirements of the Act and there-
fore the 60 day limitation period in subs.
6(1) of the Act applied.

HUMAN RIGHTS

DISCRIMINATION IN EMPLOYMENT – Appellate court restored adjudicator’s finding of systemic discrimination in the implementation of an attendance management program.

Appeal from a decision allowing the employer’s application for judicial review of an adjudicator’s decision. Cross-appeal by the employer from the decision upholding individual damage awards made by the adjudicator to six employees. In order to address the excessive absenteeism rate among Vancouver transit operators, the employer introduced an attendance management program. The union claimed that the program was applied in a manner that was discriminatory to transit operators on the basis of physical and mental disabilities and filed a complaint of systemic discrimination with the Human Rights Tribunal. The adjudicator found that the program resulted in systemic discrimination against employees with chronic and recurring disabilities and that the program was not exempted under the Human Rights Code (B.C.) as a bona fide occupational requirement. The chambers judge allowed the judicial review application as it related to the claim of systemic discrimination and concluded that the adjudicator had exceeded her jurisdiction in ordering the mediation and seizing herself of the matters.

HELD: Appeal and cross-appeal allowed
in part. The chambers judge erred in setting
aside the adjudicator’s finding of prima facie
systemic discrimination. The placement of
employees at Level 3 on the basis of absences
due to disabilities did constitute systemic
adverse treatment attributable to the dis-
abilities. The judge erred in setting aside the
finding of the adjudicator that the employer
had failed to discharge the burden of show-
ing that it was not possible to further accom-
modate employees with disabilities without
causing itself undue hardship. The employer
did not establish a bona fide occupational
requirement for the aspects of the program
that caused adverse treatment to its employ-
ees with disabilities. The judge correctly held
that the adjudicator did not have the jurisdic-
tion to order Tribunal-assisted mediation
after the complaint had been heard and
adjudicated upon. Substantially all of the
damages awarded related to the period after
the employees received adverse treatment as
a result of their disabilities. Hence, there was
no reason to set aside the damage awards.

INSURANCE
(MOTOR VEHICLE)
THRESHOLD TEST – Plaintiff failed
to establish that he sustained a perma-
nent impairment of a physical, mental or
psychological function.

Motion by defendant pursuant to s. 267.5 of the Insurance Act (Ont.) to dismiss plaintiff’s action. Plaintiff sued defendant for damages arising from a 2003 motor vehicle accident. A jury awarded plaintiff $5,000 in general damages. Application of the statutory deductible of $15,000 to the jury’s award would result in plaintiff recovering no general damages. Plaintiff submitted that he fell within the statutory exception in subs. 267.5( 5) of the Act due to the nature of his injuries. Plaintiff alleged that he suffered chronic pain in his shoulders and lower back, with pain radiating into his thighs. He alleged that he also suffered from headaches. The plaintiff testified that the chronic pain significantly limited and impaired his activities. Plaintiff submitted that his injuries constituted a permanent and serious impairment. Defendant submitted that any injuries were fully resolved by 2004.

HELD: Motion granted. The jury did not find plaintiff to be a credible witness. It was a clear and reasonable inference from the jury’s verdict that they accepted plaintiff had suffered minor injuries, but did not suffer continuing pain, or an impairment of his ability to perform various tasks, or an impairment which reduced his ability to work. The jury’s verdict was unambiguous. The verdict corresponded to the findings the court would have made had the matter been tried by judge alone. Plaintiff failed to establish that he sustained a permanent impairment of a physical, mental or psychological function. He failed to meet the threshold set out in subs. 267.5( 5) of the Act. The action was dismissed.

Clark v. Zigrossi, [2010] O.J. No.
4266, Ont. S.C.J., Brown J., Oct. 7/10.
Digest No. 3026-011 (Approx. 11 pp.)
LABOUR RELATIONS

CERTIFICATION – Chambers judge erred in applying amendments to Trade Union Act (Sask.) to an application for certification filed and argued before the amendments came into force.