Criminal/Aboriginal Law: Sexual Exploitation Sentencing

E.O. v. R., 2019 YKCA 9 (38743)

There is a publication ban in this case, in the context of “circle sentencing” for sexual exploitation. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: NCR

R. v. Norris, 2019 NLCA 29 (38753)

Ms. Norris admitted to striking Mr. Reardon’s head with a hammer and thereby causing his death. The trial judge conducted a voir dire to determine the admissibility of out-of-court utterances made by Ms. Norris and medical records. A jury found Ms. Norris not criminally responsible on account of mental disorder for the first degree murder of Mr. Reardon. The C.A. dismissed the Crown’s appeal. “The application for leave to appeal…is dismissed. Rowe J. took no part in the judgment.”

Criminal Law: New Evidence Postponement

Gros-Louis v. R., 2019 QCCA 834 (38689)

The Applicant was found guilty of three counts of fraud under s. 380(1)(b) of the Criminal Code. The C.A. denied the Applicant’s request for postponement of the hearing in order to introduce new evidence, concluding all the conditions from Palmer v. The Queen, [1980] 1 S.C.R. 759, were not met. Regarding the Applicant’s appeal from the guilty findings on the three counts of fraud, the C.A. concluded no reasonable inference could be drawn that would be consistent with the Applicant being innocent. “The application for leave to appeal…is dismissed.”


Viscomi v. United States, 2019 ONCA 490 (38760)

The U.S. sought the extradition of the Applicant to stand trial in Virginia for internet luring and child exploitation offences. The Applicant’s application for disclosure was dismissed. The Applicant’s application to exclude evidence under s. 24(2) of the Charter, on the basis of violations of his ss. 8, 9, and 10(b) rights, was also dismissed. The extradition judge ordered the Applicant committed for extradition and the Minister of Justice ordered the Applicant’s unconditional surrender. A majority of the C.A. dismissed the Applicant’s appeal and application for judicial review. Paciocco J.A., dissenting, would have allowed the appeal, quashed the committal order, and remitted the matter back for re-hearing. “The application for leave to appeal…is dismissed.”

Family Law in Québec: Children at Risk

R. v. Director of Youth Protection of the CIUSSS A, B, X and Y, 2019 QCCA 768 (38722)

There is a publication ban in this case, as well as a publication ban on the party. The Court file contains information not available for inspection by the public, in the context of children at risk. “The application for leave to appeal…is dismissed without costs. Kasirer J. took no part in the judgment.”

Leases: Termination

Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc., 2019 ONCA 439 (38776)

The Applicant and tenant, Pita Royale Inc. o/a Aroma Taste of the Middle East, sued the Respondent and landlord Buckingham Properties, and the Respondent and principal, Mr. Mandelbaum, for improper termination of a commercial lease and illegal distraint or conversion of restaurant chattels. The trial judge found the lease termination was proper, but the landlord illegally distrained the tenant’s chattels. The tenant was awarded damages for conversion, punitive damages, and costs on a partial indemnity basis. The trial judge also held the principal was jointly and severally liable for those damages with the landlord. The C.A. allowed the landlord and principal’s appeal in part, finding the trial judge had erred by miscalculating the damages for conversion. The court reduced the damages. It also concluded the trial judge had erred in her analysis of the parties to the lease and had failed to consider the nature of the allegations pleaded. In the court’s view, this was not one of those exceptional cases where the corporate veil should be pierced. “The application for leave to appeal…is dismissed with costs.”

Municipal Law: Hookah Lounges

2386240 Ontario Inc. v. Mississauga (City), 2019 ONCA 413 (38771)

The Applicants were the owners of several hookah lounges located within the Respondent, Regional Municipality of Peel. In their lounges, the Applicants supplied waterpipes and smoking products (including herbal shisha, a legal substance) to their customers to be consumed on site, while the customers socialized on their premises. The municipality passed by‑law No. 30‑2016, Peel Waterpipe Smoking By‑law, which prohibits smoking waterpipes in specified places that would include the Applicants’ lounges. The Applicants applied under s. 273 of the Municipal Act for a declaration that ss. 2(a), (b), and (c) as well as s. 5 of the by‑law are illegal and should be quashed. Sections 2(a), (b) and (c) prohibit waterpipe smoking in an enclosed public place, an enclosed workplace and a restaurant or a bar patio. Section 5 prohibits a proprietor, an employer, or an employee from permitting waterpipe smoking in the locations specified in ss. 2(a), (b) and (c).  The application judge dismissed the Applicants’ application. The C.A. dismissed the appeal. “The application for leave…is dismissed with costs.”

Professions: Discipline

Fitzpatrick v. College of Physical Therapists of Alberta, 2019 ABCA 254 (38736)

This is the third in a series of cases over an eleven year period to appear before the Alta C.A. involving the same parties. In 2008 a complaint was made against the Applicant alleging she misdiagnosed clients and had improper communication with legal counsel. A hearing tribunal rendered its decision in 2011, finding the Applicant guilty of some charges while dismissing others. Appeals to an appeal panel and then the C.A. were allowed with the C.A. sending the case back to the hearing panel for reconsideration of an appropriate sanction. In 2013 the hearing panel provided new sanctions which were again appealed to an appeal panel and the C.A.  The C.A. made minor modifications but otherwise affirmed the sanctions. Over the following months, the Applicant allegedly did not abide by some of the sanctions. A new complaint was made against the Applicant and the hearing tribunal determined the Applicant was guilty of unprofessional conduct for failing to comply with the 2013 sanctions and failing to cooperate with an investigator. This decision was appealed to an appeal panel and the C.A., both of which dismissed the appeals. “The application for leave to appeal…is dismissed with costs.”

Torts: Medmal

Kajetanowicz v. MacNeil, 2019 NSCA 35 (38754)

The infant Respondent, Alexander MacNeil, suffers from congenital hypothyroidism which resulted in neurological damage. The damage would have been minimized by early treatment, but neither his family nor his family doctor were notified a routine test showed an abnormal level of thyroid stimulating hormone. The neonatologist at the birth hospital had developed a practice of reviewing test results due to concerns about the hospitals’ notification processes. In this case, he believed a notation beside the abnormal result indicated the family had been notified. The infant MacNeil, by his litigation guardian (collectively, “MacNeils”) sued the birth hospital, the testing hospital, and the neonatologist. A month before trial, the hospitals settled. The settlement agreement extinguished the claim against the settling defendants and left the remaining defendant responsible for only his proportionate share, if any, of the loss: Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W. 2d 106 (1963); Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623. The trier of fact was required to apportion fault between all defendants if the remaining defendant was found negligent. Here, the neonatologist was the only remaining defendant. The MacNeils argued, having voluntarily taken steps to address the notification problem, the neonatologist had not acted appropriately upon receiving an abnormal result. The neonatologist relied on failures by the hospitals. After repeated discussions of the proper way to address the matter, the trial judge instructed the jury the hospitals had settled with the MacNeils, but the MacNeils still had to prove each hospital was negligent. She assigned no burden to the neonatologist. The MacNeils’ counsel objected to the characterization of the burden, saying the MacNeils had no case to prove against the hospitals as the claims brought against them had been resolved by settlement agreement. After a brief deliberation, the jury found no liability on the part of the neonatologist. The C.A. allowed the MacNeils’ appeal. “The application for leave to appeal…is dismissed with costs.”