Civil Decisions
[LaForme, Rouleau and Paciocco JJ.A.]
Counsel:
Gregory N. Hemsworth, for the appellant
David A. Whitten and Simone Ostrowski, for the respondent
Keywords: Contracts, Termination, Morals Clause
Facts:
In May 2011, the appellant, 2156775 Ontario Inc., carrying on business as D’Angelo Brands (“D’Angelo”), entered into a promotional contract with professional hockey player Michael Zigomanis. Mr. Zigomanis was on a two-way contract with the Toronto Maple Leafs at the time. The promotional contract provided that Mr. Zigomanis would receive periodic payments in the minimum amount of $200,000 over four years, provided he exercised unilateral extension options available to him.
The contract contained a “morals clause” which read in material part that D’Angelo could terminate the contract if the “athlete commits any act which shocks, insults, or offends the community, or which has the effect of ridiculing public morals and decency”.
In February 2012, D’Angelo purported to terminate the contract. The basis for termination was the internet publication of nude photographs of Mr. Zigomanis that Mr. Zigomanis had sent his then girlfriend, prior to signing the contract. D’Angelo claimed that this event violated the morals clause and undermined Mr. Zigomanis’s positive image as a “brand ambassador”, depriving D’Angelo of what it had bargained for.
Mr. Zigomanis sued successfully for wrongful termination of the contract. The trial judge held that according to the terms of the contract, Mr. Zigomanis agreed to promote D’Angelo’s product, not serve as a brand ambassador. The trial judge also held that the morals clause was not offended by the private transmission of nude photographs within a relationship, and that, in any event, this act occurred before the contract was entered into and the morals clause is not retrospective.
The trial judge also accepted Mr. Zigomanis’s testimony that Mr. Zigomanis intended to exercise his option to continue with the contract for four years. The trial judge therefore awarded damages in the amount of $162,500, representing the outstanding periodic payments provided for over the four years of the contract.
Issues:
Did the trial judge err in finding that D’Angelo wrongfully terminated Mr. Zigomanis’ contract and allowing Mr. Zigomanis to exercise his option to continue with the contract for four years?
Holding: Appeal dismissed.
Reasoning:
No. The court did not accept D’Angelo’s argument that the trial judge accepted that the community was shocked by Mr. Zigomanis’ conduct. The court stated that Mr. Zigomanis’ understandable, subjective desire to suppress publication of the photographs and to distance himself from them was evidence only of his desire for privacy, not of the community’s reaction. Furthermore, the widespread public interest that was generated by the photographs says nothing about the community reaction to Mr. Zigomanis’ act in sharing those photos only with an intimate party.
Thus, the court held that the trial judge’s conclusion that the community conscience would not be shocked was reasonable.
[Laskin, Huscroft and Paciocco JJ.A.]
Counsel:
P Taylor, acting in person
J-D Be’lec and J Clarke, for the respondent WSIB
A Lokan and D McKenna, for the respondent WSIAT
Keywords: Torts, Misfeasance in Public Office, Odhavji Estate v. Woodhouse, 2003 SCC 69, Bad Faith, Employment Law, Workplace Safety and Insurance Benefits, Civil Procedure, Striking Pleadings, Jurisdiction, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 123, Pagourov v. Science Application International Corp., 2007 ONCA 745, Abuse of Process, No Reasonable Cause of Action
Facts:
In 1997, the appellant, Paul Taylor, was injured on the job while unloading a large shipment of goods from a tractor trailer. Over the last 20 years he has been litigating over his Workplace Safety & Insurance Board benefits. He has had numerous hearings before the Board, and brought various appeals before the Workplace Safety & Insurance Appeals Tribunal. Some of his claims have been accepted; some have not.
In February 2014, Taylor started an action against both the Board and the Tribunal. In his amended statement of claim, he sought “compensatory damages” of $1,710,455, broken down into various categories of benefits, as well as punitive damages of $15 million. Both the Board and the Tribunal brought motions to dismiss Taylor’s claim for lack of jurisdiction and alternatively, to strike his pleadings on the ground that they disclosed no reasonable cause of action. In lengthy reasons, the motion judge granted their motions. The main basis for his decision was that Ontario’s Superior Court of Justice does not have jurisdiction to grant relief against the respondents in a civil action. Relief against the Board and the Tribunal must be sought on judicial review.
Issues:
- Did the motion judge err in dismissing Taylor’s claim for lack of jurisdiction?
- Did the motion judge err either by striking Taylor’s pleadings as failing to disclose a reasonable cause of action for “bad faith” or misfeasance in public office, or by refusing to grant Taylor leave to amend his statement of claim?
Holding:
Appeal dismissed.
Reasoning:
- The essence of Taylor’s claim against the Board is that the Board treated him unfairly and denied him the benefits and treatment to which he was entitled. The essence of Taylor’s complaint against the Tribunal is that the Tribunal did not treat him fairly in the hearing process, that the Tribunal’s decision was wrong and should be reversed, and that the Tribunal and its members committed various torts against him. In substance, these complaints are about the decisions made and the process used by the Tribunal and Board in determining Taylor’s entitlement to benefits. Section 123 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A provides that “[a]n action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court. “ In accordance with the decision in Pagourov v. Science Application International Corp., 2007 ONCA 745, an attempt to circumvent the statutory scheme for the determination of benefits by a civil action, as Taylor has attempted, amounts to an abuse of process. Thus this ground of appeal was dismissed.
- The motion judge struck Taylor’s amended statement of claim in its entirety, as the allegations it contained did not amount to torts recognized in law. At the hearing of the motions, Taylor alleged that the bad faith conduct of the Board and Tribunal described in his amended statement of claim amounted to the tort of misfeasance in public office. On appeal, Taylor argued in substance that his amended statement of claim appropriately pleads the “tort of bad faith” and, when read generously, also discloses a cause of action for misfeasance in public office. He contends that the allegations in his pleadings make out the tort of misfeasance in public office on either of two grounds: the bad faith denial of his claims for benefits; and the improper comments and conduct of a Tribunal member.
With respect to the first claim, a government official’s bad faith conduct is not independently actionable. The law does not recognize a stand-alone action for bad faith.
With respect to the second claim, the motion judge was correct to hold that Taylor’s amended statement of claim does not assert a cause of action for the tort of misfeasance in public office. This tort redresses unlawful conduct in the exercise of public functions. The Supreme Court in Odhavji Estate v. Woodhouse, 2003 SCC 69 found that this tort requires (1) a “public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer”; and (2) “the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.” None of Taylor’s claims satisfy these elements and thus his pleadings do not disclose a reasonable cause of action.
[Strathy C.J.O., Hourigan and Miller JJ.A.]
Counsel:
Peter H. Griffin and Christopher Yung, for the appellants, Dr. Stanley Bernstein, DBDC West Mall Holdings Inc., 2272551 Ontario Limited, and DBDC Global Mills Ltd.
Sabrina Waraich, for the appellants, Norma Walton, Ronauld Walton, West Mall Holdings Ltd. and Global Mills Inc.
Irving Marks and Dominique Michaud, for the respondents, Trez Capital Limited Partnership, Trez Capital (2011) Corporation and Computershare Trust Company of Canada
Keywords: Civil Procedure, Summary Judgment, Viva Voce Evidence, Findings of Fact, Orders, Declarations, Appeals from Orders not Reasons, Limitation Periods, Issue Estoppel
Facts:
The appellants, Stanley Bernstein and his companies, appeal from the order of the motion judge dismissing their motion for summary judgment. They had moved to dismiss the action commenced by the respondents on the basis that it is statute-barred by operation of the Limitations Act, 2002.
Dr. Bernstein was involved in a business relationship with Norma and Ronauld Walton, who operated The Rose & Thistle Group Ltd. (“Rose & Thistle”). Dr. Bernstein and the Waltons agreed to invest jointly in various commercial real estate projects. Ultimately, Dr. Bernstein invested approximately $110 million in 31 such projects. Each project was held in a separate corporation in which Dr. Bernstein was a 50% shareholder and the Waltons were 50% shareholders (the “project corporations”). The Waltons were responsible for managing and supervising the projects and arranging financing.
The respondent, Trez Capital Limited Partnership (“Trez”), is a commercial lender. It financed four of the projects jointly owned by Dr. Bernstein and the Waltons. For each loan, the Waltons falsely represented to Trez that they were the beneficial owners of 100% of the shares of the relevant project corporation. In an email (“The Resignation Email”), Ms. Walton suggested that Dr. Bernstein temporarily resign his position as a director from Wynford Professional Centre Ltd. (“Wynford”), one of the project corporations that were borrowing from Trez at the time. After loan funds were advanced to Wynford, Dr. Bernstein was immediately reinstated as a director of the corporation.
James Reitan, the then Director of Accounting and Finance at Dr. Bernstein Diet & Health Clinics, had concerns with respect to the Waltons’ management of the projects. At Mr. Reitan`s request, Ms. Walton emailed Gaetano Coscia of Trez and asked for a return email confirming that the Global Mills mortgage was in good standing. Mr. Coscia emailed Ms. Walton and confirmed that the Global Mills mortgage was in good standing. That email was forwarded to Mr. Reitan and Dr. Bernstein.
Mr. Reitan called Mr. Coscia on September 13 to follow up on the status of the Mortgage. The parties to the September 13 Call gave very different evidence about what took place on the call, which was the critical issue for determination on the motion below. Mr. Reitan testified that during the September 13 Call he revealed Dr. Bernstein’s 50% interest in Global Mills. The evidence of Mr. Coscia regarding the September 13 Call is markedly different. In his affidavit he stated that at no time during the September 13 Call did Mr. Reitan reveal Dr. Bernstein’s ownership interest. Dr. Bernstein filed an affidavit in which he swore that he told Mr. Reitan to contact Mr. Coscia and that he did not instruct Mr. Reitan to withhold information about his ownership interest in Global Mills. At trial, Dr. Bernstein testified that he told Mr. Reitan to advise Trez who they were and he said that they discussed telling Trez that he was a 50% shareholder.
Given the conflicting evidence about the September 13 Call, the motion judge ordered a mini-trial on the issue. Dr. Bernstein, Mr. Reitan and Mr. Coscia all gave viva voce evidence. The motion judge preferred the evidence of Mr. Coscia to that of Dr. Bernstein and Mr. Reitan. He dismissed the motion for summary judgment and made a finding that the limitation period had not expired prior to the issuance of the respondents’ statement of claim.
Issues:
(1) Did the motion judge make findings that went beyond what was required to determine the motion.
(2) Did the motion judge make palpable and overriding errors of fact in his analysis of whether Dr. Bernstein’s ownership interest was revealed during the September 13 Call.
(3) Did the motion judge err when he found that the claim was not discoverable even if the ownership interest was revealed during the September 13 Call.
(4) Did the motion judge err in finding it was not appropriate for Trez to commence an action until it was known whether its security would be sufficient to pay the mortgage loans.
Holding: Appeal dismissed.
Reasons:
(1) No. The appellants submit that there was a substantive finding regarding Dr. Bernstein’s participation in the misrepresentation to Trez, which was inconsistent with the motion judge’s statement that he would not make any substantive findings of fact. Consequently, they argue that their position at trial has been prejudiced. The motion judge’s statement was made in the context of a discussion about findings impacting defendants who were not participating in the motion for summary judgment, and the statement should be read in context.
The credibility of the parties regarding the September 13 Call was the critical issue for determination on the motion for summary judgment. There was no suggestion that if the appellants failed on their motion that they would have the ability to re-litigate the issue at trial. The motion judge noted, “The parties agree that this procedure is sufficient and capable and that there is a sufficient record for a binding finding of fact to be made as to what took place during the telephone call and for a finding of whether the action is statute-barred.”
The appellants made a tactical decision to bring a motion for summary judgment on the basis that would inevitably require the court to make a credibility assessment of both Dr. Bernstein and Mr. Reitan. They cannot assert that they were taken by surprise that the motion judge made detailed factual findings in doing so. The motion judge was tasked with determining what took place on a call, which occurred over three and a half years earlier, for which there were no contemporaneous notes or subsequent written confirmation. In determining what was said on that call, he was obliged to consider all of the surrounding evidence and draw appropriate inferences. That is precisely what he did, including with regard to Dr. Bernstein’s knowledge of Ms. Walton’s misrepresentation.
Having made the findings he did, the motion judge did not err in finally determining the limitation period issue. The appellants’ limitation defence centered on the disclosure they say was made by Mr. Reitan on the September 13 Call. That evidence was not accepted. It would be contrary to the purpose of the summary judgment rule to afford the appellants another opportunity at trial to persuade the trial judge that their evidence should be accepted. The motion judge’s order only dismisses the motion for summary judgment and declares that the respondents’ claim is not barred by operation of the Limitations Act, 2002. It is well settled law that it is impermissible to appeal the reasons that underlie an order or judgment: Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, 340 O.A.C. 271, at para. 13; MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, 88 O.R. (3d) 269, at para. 44.
(2) No. The motion judge did not make any palpable and overriding errors. However, the motion judge did make two minor factual errors in his credibility analysis. He erred when referring to the consideration of the Resignation Email in an earlier decision in litigation among Dr. Bernstein, the Waltons and various other parties. The motion judge mistakenly stated that he authored the earlier decision when, in fact, it was a decision of D.M. Brown J. However, that error is of no moment, as the reference to the earlier decision was clearly obiter and was made to explain why the motion judge was reaching a different conclusion on the significance of the Resignation Email than the one made previously.
The motion judge also made a minor factual error when he stated that Mr. Reitan did not give evidence regarding a conversation with Dr. Bernstein before the September 13 Call until Dr. Bernstein mentioned the conversation in his affidavit. In fact, while Mr. Reitan made no reference to the conversation in his affidavit, he did testify regarding the conversation during the cross-examination on his affidavit, which preceded the filing of Dr. Bernstein’s affidavit. Despite the submissions of the appellants to the contrary, this was not an overriding error.
(3) and (4). Given the above conclusions, the Court did not consider the appellants’ submissions regarding the alleged legal errors, as they are predicated on a finding that Dr. Bernstein’s ownership interest was revealed during the September 13 Call.
[Laskin, Miller and Paciocco JJ.A.]
Counsel:
Derek A. Schmuck, for the appellant
Duncan M. MacFarlane, for the respondent
Keywords: Contracts, Consensus Ad Idem, Fresh Evidence, Due Diligence
Facts:
The Respondent, Tisi, and the Appellant, St. Amand, entered into an Agreement of Purchase and Sale in which St. Amand agreed to build a home for Tisi.
St. Amand electronically signed the agreement on November 2, 2016. Tisi electronically signed the agreement on November 4, 2016 but struck out the phrase “builder’s samples” in six places. These changes were initialled by Tisi but not by St. Amand.
The relationship came at an impasse when Tisi insisted that St. Amand use Tisi’s supplier and St. Amand refused, as he did not know the company and could not warrant its work under the Tarion Home Warranty.
Each party brought an application to the court. St. Amand sought a declaration that the Agreement of Purchase and Sale was void and Tisi sought specific performance. The application judge found in favour of St. Amand. Tisi appealed the application judges’ conclusion that there was no valid Agreement of Purchase and Sale between the parties and sought leave to introduce fresh evidence.
Issues:
(1) Is the fresh evidence that Tisi seeks to introduce on appeal admissible?
(2) Did the application judge err in finding that there was no valid Agreement of Purchase and Sale between the parties?
Holding:
Appeal dismissed.
Reasoning:
(1) No. Even if the evidence proffered by Tisi is credible and relevant to the issue on appeal, it does not meet the “due diligence” requirement and the interests of justice do not warrant its admission. Citing numerous decisions, the court indicated that a failure to exercise due diligence may render the admission of the fresh evidence not in the interests of justice.
(1) No. The application judge made two findings that are sufficient to decide this appeal and that are entitled deference. The first is that the agreement does not state that Tisi could attend to a cabinetmaker of her sole choice. The second is that Tisi’s amendments to the agreement revealed the parties’ inability to agree on material terms. Tisi believed the amended terms permitted her to use whatever supplier she wished and compel St. Amand to pay. While St. Amand expected that what would be used would be his builder’s samples in accordance with his suppliers. Tisi’s amendments were therefore a fundamental change to the agreement which demonstrated that there had been no meeting of the minds.
[LaForme, Rouleau and Paciocco JJ.A]
Counsel:
Manorama Sennek, self-represented
Allison J. Klymyshyn, for the respondent
Keywords: Civil Procedure, Vexatious Litigants, Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.)
Facts:
Ms. Sennek raises over 20 grounds for appeal from the judgment declaring her to be a vexatious litigant. She has also filed a 216 paragraph affidavit setting out her position and appeal books of 868 pages. In essence, she argues that the various actions, proceedings, and appeals that she has brought against the respondent condominium corporation, its property manager, directors and solicitors are warranted in the circumstances. In her view, they do not represent misuse or abuse of the court process.
Issues:
(1) Did the application judge err in holding that the appellant was a vexatious litigant?
Holding: Appeal dismissed.
Reasoning:
(1) No. It is clear that the proceedings, applications, and appeals that Ms. Sennek continues to bring are frivolous and vexatious, and cannot succeed. They are collateral attacks on matters that have been finally determined. They amount to oppression of the various parties Ms. Sennek seeks to pursue. There is no basis to interfere with the application judge’s finding that six of the seven characteristics of a vexatious litigant listed in Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.), have been made out in this case.
[Simmons, Roberts and NordheimerJJ.A.]
Counsel:
Barbara Kueber, in person
J Gutman, for the respondent Royal Victoria Regional Health Centre
M Vernon, for the respondent Barrie Medical Clinics Inc.
P Downs, for the respondent doctors
J Boudreau, for the respondent County of Simcoe Paramedic Services
Keywords: Torts, Negligence, Medical Malpractice, Defamation, Summary Judgement, Negligence
Facts:
The motion judge granted summary judgment dismissing the appellant’s medmal action against: County of Simcoe Paramedic Services; Paramedic J. Doe; the nine doctors named in the statement of claim; and Barrie Medical Clinics Inc. He also granted partial summary judgment dismissing her action against Royal Victoria Regional Health Centre as it relates to events on March 10 and 11, 2012.
Issues:
- Did the motion judge err in dismissing the appellant’s claims against County of Simcoe Paramedic Services?
- Did the motion judge err in dismissing the appellant’s claims against the nine doctors?
- Did the motion judge err in dismissing the appellant’s claims against Barrie Medical Clinics Inc.?
- Did the motion judge err in dismissing the appellant’s claims against Royal Victoria Regional Health Centre?
Holding:
Appeal allowed, in part.
Reasoning:
- The appellant’s claims against County of Simcoe Paramedic Services and an unknown paramedic fell into three main categories. First, she claimed she was defamed in a March 10, 2012 ambulance call report, which noted anxiety, yelling, and aggressiveness on her part and that she sometimes becomes violent. Second, she claimed that, on March 21, 2012, a paramedic threatened to taser her. Third, she made general allegations that, in essence, the paramedic services provided to her fell below the standard of care, causing her to endure multiple incidents of endangerment and negatively impacting her care. The motion judge gave ample reasons for concluding that: i) summary judgment was appropriate; ii) the paramedic’s description of the appellant’s history and status in the March 10, 2012 ambulance call report was not defamatory; and iii) there was no basis in the record for concluding either that a paramedic threatened to taser the appellant on March 21, 2012 or that paramedic services provided to the appellant fell below the standard of care. The Court of Appeal saw no reason to interfere with these findings.
- The appellant’s claims against the nine doctors were for medical negligence, falsification of records and defamation, and, in some instances, lack of informed consent. The doctors provided expert opinion evidence supporting their claims that they met the standard of care. The appellant did not cross-examine the doctors’ experts and filed no contradictory expert evidence. Concerning the claims of falsification of records and defamation, the motion judge concluded that they were “rooted in complete speculation and innuendo. The motions judge did not err in dismissing these claims.
- The appellant visited two of the doctors against whom she advanced claims at Barrie Medical Clinics Inc. Evidence on the summary judgment motion indicated that these doctors were independent contractors. In any event, while the doctors adduced expert evidence supportive of their care and treatment, the appellant failed to introduce contradictory expert evidence. The Court of Appeal found no error in the summary judgemnt dismissing the appellant’s claims against Barrie Medical Clinics Inc.
- The motion judge granted summary judgment dismissing the appellant’s claims against Royal Victoria Regional Health Centre concerning the March 10 and 11, 2012 hospital visits. At the appeal hearing, Royal Victoria Regional Health Centre acknowledged that its motion for partial summary judgment dismissing the claims against it was limited to the claims concerning the actions of Triage Nurse J. Doe on March 10 and 11, 2012. The claims relating to March 10 and 11, 2012 should not therefore have been dismissed in their entirety. The order for summary judgement was, therefore, amended accordingly.
[Feldman, Paciocco and Fairburn JJ.A.]
Counsel:
Byeongheon Lee, appearing in person
Stephen Cavanagh, for the respondent, Simmons
Keywords: Civil Procedure, Striking Pleadings, Jurisdiction, Human Rights Code
Facts:
The appellant brought an action based solely on an infringement of a right under Part 1 of the Human Rights Code, R.S.O. 1990, c. H.19. The motion judge struck the appellant’s claim as outside the jurisdiction of the Superior Court.
Issues:
(1) Did the motion judge err in striking the appellant’s claim as outside the jurisdiction of the Superior Court?
Holding:
Appeal dismissed.
Reasoning:
(1) No. Under s. 46.1(2) of the Code, a person cannot bring a civil court action based solely on an infringement of a right under Part 1 of the Code. However, it was clear at appeal that Mr. Lee did not fully appreciate the limits of the statement of claim as drafted. Therefore, he should be entitled to bring a motion, if so advised, to the Superior Court within 45 for leave to amend his statement of claim to bring it within the jurisdiction of the Superior Court.
Short Civil Decisions
[LaForme, Rouleau and van Rensburg JJ.A]
Counsel:
Gary S. Joseph, for the appellant
Katherine Costin, for the respondent
Keywords: Family Law, Civil Procedure, Appeals, Extension of Time
Criminal Decisions
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
James Lockyer, for the appellant
Roger A. Pinnock, for the respondent
Keywords: Criminal Law, Manslaughter, Fresh Evidence, Expert Opinion Evidence, Charles Smith Autopsies, Guilty Pleas, Setting Aside
Facts: This appeal that arises as the result of the reinvestigation of cases where Dr. Charles Smith provided opinion evidence as to the cause of death in children that led to convictions. The appellant was babysitting his 13 month old daughter at the child’s mother’s apartment in Scarborough while the mother was out doing errands. The mother returned to find the child lifeless in her playpen. Resuscitative efforts were unsuccessful and the child was pronounced dead shortly after her arrival at Scarborough Grace Hospital. Notably, the child had a history of breathing difficulties and intestinal problems.
Dr. Smith opined that the child had died as a result of a “mechanical type of asphyxia” likely caused as the result of neck compression or possibly blunt force applied to the abdominal/chest area accompanied by a choking episode. He dismissed the possibility that the child died from aspiration of stomach contents or any other accidental or unexplained cause.
The appellant was charged with second degree murder and was ultimately committed to stand trial on that charge. Eventually he pleaded guilty to manslaughter and was sentenced to three years and three months imprisonment in addition to the 15 months of pre-trial custody. The appellant served his sentence. The appellant seeks to have his guilty plea set aside, the manslaughter conviction quashed and a new trial on the charge of manslaughter.
The Crown did not contest the admission of this evidence nor dispute its contents.
Issues: Should the court set aside the appellant’s guilty plea, quash his conviction of manslaughter and order a new trial in light of the fresh evidence?
Holding: Yes. The Court allowed the appeal, set aside the guilty plea and the conviction for manslaughter and ordered a new trial.
Reasoning:
At the time of the incident, the appellant had spent the day with his daughter Tamara. On the child’s mother’s return from doing errands, Tamara was found lifeless and cold to the touch in the playpen. There is a dispute on the evidence about whether the appellant tried to prevent Ms. Thomas from calling 911 but a call was made. The appellant was described as distraught and confused when police arrived and he was performing CPR on Tamara. The appellant showed police the playpen where Tamara had been found and pointed out to them the stains on the bedding which he thought indicated that the child had thrown up while sleeping. He denied causing harm to the child.
The appellant told police the child had suffered from constant diarrhea and vomiting since coming home from the hospital. Indeed, the child had suffered a fractured right femur a few weeks prior to her death. The paramedics deemed that her crib was unsafe and ruled that the injury was accidental. Since being in the cast “there was a problem with her laying on her back, because she always used to throw up whatever we gave her”. Before noon the appellant put Tamara in her playpen with a bottle of chocolate milk which she drank until falling asleep.
Dr. Smith opined that mechanical asphyxia had caused Tamara’s death. He opined on several hypothetical mechanisms that may have caused the death including smothering and strangulation. He particularly emphasized other injuries found on the child at post mortem including fractures of both left and right femurs and several rib fractures. Concerns about Dr. Smith’s work began to arise in 2001. The Crown sought an independent review or Tamara’s case and Dr. Dowling, Chief Medical Examiner in the province of Alberta was retained. Although some concern was raised in Dr. Dowling’s first report about Dr. Smith’s conclusions; it was generally supportive.
Dr. James Ferris, the head of Pathology at Vancouver General Hospital and former Chief Forensic Pathologist of British Columbia was retained by the appellant to review Dr. Smith’s findings. In his May 3, 2001 report, he disputed some of Dr. Smith’s conclusions and doubted his interpretation of others.
Fifteen months after the appellant was committed for trial – and two weeks prior to the commencement of his trial on the second degree murder charge, the Crown offered to withdraw the second degree murder charge in exchange for the appellant’s plea of guilty to unlawful act manslaughter and a term of imprisonment of four years on the manslaughter conviction.
A number of factors came into play in the appellant’s decision to plead guilty to manslaughter. Of particular significance was the impact he thought Dr. Smith’s evidence would have on the jury. That, together with the fact that a jury was unlikely to be sympathetic toward him because the case involved the alleged murder of an infant and that, in his opinion and that of his lawyer, he would not be an effective witness on his own behalf.
It was in these circumstances that, despite his lawyer’s admonition that he not plead guilty to something he did not do, he nevertheless instructed his lawyer to agree to certain facts that were read into the record when his plea was taken, including that Tamara died of asphyxia that he precipitated in frustration when forcefully trying to feed the child with sufficient violence to cause vomiting and choking. He then left her either unconscious or entering unconsciousness, unable to breathe, and she died.
Filed by way of fresh evidence on appeal were the affidavits of the appellant and his trial counsel, Stephen Bernstein, which explain why the appellant pleaded guilty to manslaughter despite always insisting that he did nothing to cause Tamara’s death.
Since that time, as the fresh evidence discloses, Dr. Milroy had prepared in December, 2007 a detailed medico-legal report in which he was critical of Dr. Smith’s autopsy report and his conclusion that asphyxia was the cause of death. Dr. Milroy’s detailed findings are set out in his report filed as part of the fresh evidence on this appeal. He concluded the cause of death was “unascertained”. Dr. Milroy in 2013 prepared a further report in which he concluded that Dr. Smith’s conclusion that asphyxia was the cause of Tamara’s death was not supported by the autopsy findings. He could neither exclude a natural or an unnatural cause of death.
Ultimately, the Court held that this is one of those cases where, despite the passage of time since the plea was entered, it should exercise its power to set aside the guilty plea in the interests of justice. The fresh evidence establishes that absent Dr. Smith’s flawed opinion, the appellant would not have pleaded guilty to manslaughter.
[Juriansz, Watt and Miller JJ.A.]
Counsel:
Erika Chozik, for the appellant
Alex Hrybinsky, for the respondent
Keywords: Publicaiton Ban, Criminal Law, Sexual Assault, Assault Causing Bodily Harm, Uttering Threats
[MacFarland, Benotto and Brown JJ.A.]
Counsel:
Jeffrey Langevin, for the appellant
Frank Au, for the respondent
Keywords: Criminal Law, Break and Enter, Reasonable Apprehension of Bias, Sentencing
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
Janani Shanmuganathan, for the appellant
Aaron Shachter, for the respondent
Keywords: Criminal Law, Sentencing
Counsel:
Paul J.I. Alexander, for the appellants
David Quayat, for the respondent
Keywords: Criminal Law, Possession and Trafficking, Garofoli Procedure, Debot Criteria
Counsel:
Daniel C. Santoro and Andrew Furgiuele, for the appellants
Jennifer Conroy, for the respondent
Keywords: Criminal Law, Fraud, Possession, Search and Seizure, Canadian Charter of Rights and Freedoms, s. 8
[MacFarland, Benotto and Brown JJ.A.]
Counsel:
Ariel Herscovitch, for the appellant
Andreea Baiasu, for the respondent
Keywords: Criminal Law, Contempt of Court
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
Ian Carter, for the appellant
Katie Doherty, for the respondent
Keywords: Criminal Law, Robbery, Identification Evidence, Reliability
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
Albert Oddi, acting in person
Michael McEachren, for the responding parting
Keywords: Criminal Law, Evidence, Forfeiture Order
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
Catriona Verner, for the appellant
Mabel Lai, for the respondent
Keywords: Criminal Law, Reverse Onus, Fresh Evidence
R. v. Barclay, 2018 ONCA 114
[Hoy A.C.J.O., Doherty and Feldman JJ.A.]
Counsel:
Jonathan Dawe, for the appellant
Jeanette Gevikoglu, for the respondent
Keywords: Criminal Law, Drug Possession and Trafficking, Unlawful Detention, Sentencing
[Watt, Hourigan and Miller JJ.A]
Counsel:
Michael Dineen, for Anantha Neeranjan
Ian Kasper, for Rajitha Kanagarajah
Mark Halfyard, for Kuhen Neshan
Ian Smith, for Ramanan Kenegarajah
Michael Bernstein, for the respondent
Keywords: Criminal Law, Fraud, Money Laundering, Criminal Organizations, “Single Transaction” Rule, Knowledge and Control
[Juriansz, Miller and Fairburn JJ.A.]
Counsel:
Ian B. Kasper, for the appellant
Elena Middelkamp, for the respondent
Keywords: Publication Ban, Criminal Law, Sentencing, Youth Criminal Justice Act
[MacFarland, Pardu and Benotto JJ.A.]
Counsel:
Nicolas M. Rouleau and Daniel C. Santoro, for the appellant
Heather Graham, for the respondent
Keywords: Criminal Law, Fraud, Extradition
About the author
John Polyzogopoulos, Partner, Blaney McMurtry LLOP