The Lawyers Weekly - July 1, 2011

SEXUAL ASSAULT – Trial judge did not err in award of damages to plaintiff for sexual assault but should have included amount for cost of future counselling.

Appeal by plaintiff from the damages awarded for sexual abuse by a probation officer. Appellant was placed on probation at age 13. The sexual abuse began at that time and continued until appellant was 16. Appellant did not disclose the abuse for 10 years. The trial judge excluded appellant’s expert evidence obtained to link the abuse to the appellant’s adult life of crime and addiction. In assessing general damages for pain and suffering, the judge concluded without the benefit of an expert that the abuse appellant suffered had a deep and lasting impact on his life. The judge accepted that these assaults negatively affected appellant’s ability to earn in the past and would continue to do so in the future. Appellant was awarded $125,000 for pain and suffering and $250,000 for lost wages. The appellant claimed that the awards were too low.

HELD: Appeal allowed in part. The trial judge did not err in excluding the expert evidence. The report was seriously flawed. Excluding that evidence did not prevent the judge from finding that the probation officer’s assaults contributed to appellant’s problems as an adult. The award for general damages was not inordinately low, although it was at the low end of the proper range. The judge did not gloss over appellant’s injuries but expressed empathy for him and found his evidence to be compelling and its effect palpable. The judge applied the proper principles in assessing appellant’s wage loss and considered all the relevant criteria in arriving at that award. The judge erred, however, in not awarding appellant damages for future counselling. The judge had accepted that appellant wished to continue with therapy in the future. Based on the expert evidence adduced at trial, the court awarded $60,000 for the cost of future counselling.

L.M.M. v. Nova Scotia (Attorney General), [2011] N.S.J. No. 273, N.S.C.A., per MacDonald C.J.N.S. (Saunders and Oland JJ.A. concurring), May 31/11. Digest No. 3109-013 (Approx. 24 pp.)

the substantial interference with access to respondent’s business caused by construction of a public work. In the context of a business dependent on trucking, the interference was sufficiently proximate to support an actionable claim and the board’s decision in that regard was reasonable. The damages for the construction and relocation of respondent’s business were not recoverable damages in accordance with the Act.

HELD: Appeal allowed. Although the board properly found that the substantial interference threshold was met, the board’s reasonableness analysis was flawed, as it failed to consider the character of the neighbourhood, respondent’s abnormal sensitivity and the elevated importance of the Crown’s conduct in the context of providing an essential public service to alleviate the significant safety risk posed by Highway 17. The failure to properly conduct a reasonableness analysis resulted in a failure to balance the parties’ competing interests. Applying the board’s factual findings to the reasonableness analysis supported a conclusion that the interference caused by the Crown’s conduct was not unreasonable given the public interest served by the project. Respondent’s claim in nuisance was not established. The decisions of the Divisional Court and the board were set aside and respondent’s claim was dismissed.

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation), [2011] O.J. No. 2451, Ont. C.A., per Epstein J.A. (Doherty and Watt JJ.A. concurring), June 2/11. Digest No. 3109-014 (Approx. 25 pp.)

obtained property rights upon marriage. The use of the term “spouse” in the Act referred to the status of the parties at the time of accounting and did not mean that only those assets acquired once the parties attained spousal status were to be included in family property.

Stuart v. Toth, [2011] M.J. No. 171,
Man. C.A., per Beard J.A. (Hamilton and
Chartier JJ.A. concurring), June 1/11.
Digest No. 3109-015 (Approx. 12 pp.)
HEALTH LAW
FAMILY LAW

COMMON-LAW SPOUSES – Prop-
erty rights of common-law spouses
began on date they began living
together.

Appeal from the dismissal of appellant’s motion for declaratory relief in family proceedings. The parties had lived together for seven-and-a-half years when they separated in 2008. They had never registered their common-law relationship, but were deemed common-law partners after three years of cohabitation. Following separation, respondent petitioned the court for an accounting and sharing of assets, while appellant moved for a declaratory order that the parties’ common-law relationship commenced only after they had been living together for three years. In dismissing appellant’s motion, the judge determined that even those assets acquired during that three-year period were to be included in the accounting. The judge interpreted the phrase “commencement of cohabitation” in the Family Property Act (Man.) as referring to the date on which common-law partners began living together, not the date three years later on which the relationship crystallized as common-law.

HELD: Appeal dismissed. The judge’s interpretation of the legislation was consistent with the principles of statutory interpretation. It resulted in common-law partners receiving the same property rights as married spouses, thereby giving effect to the intention of the legislation. To hold that property acquired after cohabitation began but before three years had expired was not family property would treat common-law spouses inequitably in comparison with married spouses, who

NEGLIGENCE – Trial judge erred in
finding causal link between appellant
doctor’s attempted forceps delivery and
respondent’s brain injuries.

Appeal from judgment in favour of
respondent in a medical malpractice
action. Respondent was born severely
and permanently brain damaged due to
a lack of oxygen shortly before delivery,
attributed to a compression of her umbil-
ical cord. Appellant had delivered her.
The labour of respondent’s mother was
induced and did not progress as antici-
pated. Appellant decided to proceed
with a mid-level forceps delivery, which
involved rotating appellant’s head from a
transverse position to the anterior-pos-
terior position for a vaginal delivery. He
did not inform respondent’s mother of
the risks associated with the procedure
and did not advise her of the caesarian
section option. Appellant attempted to
apply the forceps but was unable to do
so. He informed respondent’s mother
that a non-emergency caesarian section
would be necessary. In the minutes that
followed, appellant’s heart rate was dis-
covered to be low and an emergency
caesarian section was ordered. Respond-
ent was delivered within 20 minutes,
with a flat umbilical cord wrapped
around her neck and shoulders. Appel-
lant appealed from the finding that his
breach of the requisite standard of care
caused respondent’s brain injury. The
judge found that the likely cause of the
cord compression and resultant brady-
cardia was the application of the forceps,
which moved respondent’s head and left
a space into which the cord fell and
became compressed. She found that
most if not all of respondent’s brain
injuries could have been avoided had she
been delivered even five minutes earlier.

LABOUR RELATIONS
RIGHT OF ACTION – Applicant had
no right of action against respondent
because her complaints came within
the scope of the collective agreement.

Motion by respondent challenging the jurisdiction of the court to decide an application. Applicant, who was a sometime paid employee at the Ministry of Transportation (MTO), brought an application claiming that she was the subject of harassment and discrimination at her place of work; that her employer took no steps to address the situation; and that she was ultimately wrongfully dismissed. Applicant was a member of a bargaining unit and covered by a collective agreement. In 2009 three grievances had been filed on her behalf by the union and eventually an interim settlement agreement was executed providing that applicant would participate in an independent psychiatric examination. She had not proceeded with the recommended psychotherapy She had been on a paid leave of absence and short-term sick benefits and had received no further income from respondent since June 2010.

HELD: Motion granted. The application was dismissed. Applicant’s complaints centred on her assertion that she

Classifieds

EXPROPRIATION

COMPENSATION – Ontario Municipal Board erred in finding interference to respondent’s business caused by construction of new highway was compensable.

Appeal from a compensation decision by the Ontario Municipal Board. Respondent owned and operated a truck stop located on Highway 17. In 2004 the province undertook construction of a new highway, Highway 417, which rerouted traffic from Highway 17 for public safety purposes. Respondent took the position that the project substantially interfered with its use and enjoyment of its property and sought a determination of compensation for injurious affection under the Expropriation Act (Ont.). The board awarded damages of $393,000. Both parties unsuccessfully appealed to the Divisional Court. The court held that the test for actionable nuisance was met based on

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