Wednesday, April 12, 2017

Damages for bad faith in terminating a partnership

Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292:

[68]        Keays holds that, because employers have an implied contractual obligation of good faith in the manner of dismissal, damages for bad faith in the manner of dismissal are within the contemplation of the parties when they enter into the contract. Given the duty of utmost good faith owed between partners, confirmed in Rochwerg, the reasoning in Keays should apply in the partnerships context: damages flowing from bad faith in the manner of a partner's expulsion are within the reasonable contemplation of the parties when they enter into the partnership agreement. Such damages can be awarded on the Hadley v. Baxendale principle.

Of the Law Societies of Upper Canada and Nunavut 

Monday, April 10, 2017

Medical Malpractice

Incompetent treatment by medical practitioners is quite rare. That's why, when it does happen, incompetent medical care is a big news story. It's a bit like the example of how safe airplanes are – a plane crash is so unusual that it gets front page coverage.

All that said, sometimes errors are made and incompetent medical care is given. What does the law say about compensation for such mistakes? Put otherwise when can you sue for damages for medical malpractice?

Put simply all medical practitioners must act in accordance with the reasonable standard of the profession and damages will follow if that standard is not met and the failure to meet the standard leads to damages.

All medical practitioners must live up to the standard of care of a reasonably prudent practitioner. That standard is no one of perfection but rather the standard of the profession. What do other doctors or nurse practitioners or medical professionals do? Even the best doctor will make a mistake – nothing in this life is perfect. A mistake does not necessarily mean malpractice has occurred.

The way the standard of care is proven in court is to have other medical professionals explain what would normally be done. Often doctors disagree as to what appropriate care should be and that can lead to lengthy trials with different doctors taking different views.

Let us suppose, however, the medical practitioner failed to live up to the standard of the reasonably prudent practitioner – does that mean a lawsuit against the practitioner will certainly succeed? No – for a claim to succeed you have to show that there was a failure to meet the required standard of care and that failure led to damages.

A nurse practitioner may make a serious mistake but cause no harm.

Suppose a cold is misdiagnosed as the flu and the patient is told to stay home and rest. The patient recovers anyway – no harm is done. I had a more tragic example in a case I did many years ago. A young man came to an emergency room with a terrible headache. The doctor totally misdiagnosed the young man and sent him home telling him to take some Tylenol. The young man died shortly thereafter. The doctor had made a serious mistake and had fallen well below the standard of the reasonably prudent practitioner but sadly there was no treatment that could have saved the young man. A proper diagnosis would not have done the young man any good – he would have died anyway. As a result the error was not one to lead to a valid claim.

When someone dies or doesn't fully recover from an illness or injury the temptation to blame the medical practitioners can be very strong. That temptation is natural but often misguided.

Sunday, April 9, 2017

Expert Evidence Voir Dire Primer

A trial judge must determine on a voir dire whether the individual is qualified as an expert, and if so, what the "nature and scope of the proposed expert evidence" will be. The qualification process is one of delineating the boundaries of the evidence and the language used.
The judge cannot permit the expert to give an opinion on common matters or matters that the expert has no special skills, knowledge, or training.
To qualify a person as an expert, the evidence must still meet the Mohan requirements:
1. the opinion must be relevant;
2. the opinion must be necessary to assist the trier-of-fact to draw the correct inference;
3. the absence of any other exclusionary rule;
4. the required qualifications of the proposed expert.
Additionally, under White Burgess the value of the evidence to be adduced must be such as to outweigh any confusion admitting the evidence might cause. That is:
1. the evidence would tend to usurp the duty of the trier of fact
2. the prejudicial effect outweighs the probative value
3. the time required outweighs its probative value
4. the cost required outweighs the probative value
5. the influence of the evidence outweighs the evidence's reliability.
Expert evidence must be impartial to be admissible. There must not be any bias or appearance of bias.

Mechanically before the evidence is heard the party seeking to adduce the evidence must "qualify" the expert. That is the voir dire – and the justice must say "now we are going into a voir dire". The evidence on the voir dire must show the expert fulfills the test above in which case the expert is allowed to testify.

The justice makes the ruling on admissibility – "I find XY is qualified to give evidence on AB". The voir dire is now complete and the trial continues.

The expert is called and testifies only on the matters allowed. None of the evidence on the voir dire is part of the trial so whatever is sought to be adduced must be adduced in the trial. The expert reports are not in evidence and most properly ought not to be put in evidence except on the express consent of all parties.

Of the Law Societies of Upper Canada and Nunavut

Saturday, April 8, 2017

Deposits and Unconscionabilty

Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282:

[19]       Deposits are commonplace in the operation of the market, especially for larger assets such as residential and commercial real estate. Their purpose was explored at learned length by Newbury J.A. speaking for a five-person panel in Tang v. Zhang, 2013 BCCA 52, 359 D.L.R. (4th) 104. At issue in the case was the forfeiture of a deposit of $100,000 on a residential real estate purchase of slightly more than $2 million. The trial judge relieved against forfeiture on the basis that the vendor had been able to re-sell the property for more than the original purchase price so that he had not suffered any loss. The court of appeal reversed the trial decision.

[20]      While Newbury J.A. rejected the argument that simply labelling a payment as a deposit immunized it against the court's equitable jurisdiction to relieve from forfeiture, she declined relief. She distilled several relevant principles from English and Canadian case law, at para. 30. Two are especially pertinent to this appeal:

A true deposit is an ancient invention of the law designed to motivate contracting parties to carry through with their bargains. Consistent with its purpose, a deposit is generally forfeited by a buyer who repudiates the contract, and is not dependant on proof of damages by the other party. If the contract is performed, the deposit is applied to the purchase price;

The deposit constitutes an exception to the usual rule that a sum subject to forfeiture on the breach of a contract is an unlawful penalty unless it represents a genuine pre-estimate of damages. However, where the deposit is of such an amount that the seller's retention of it would be penal or unconscionable, the court may relieve against forfeiture….

[21]      The decision of this court in Peachtree II Associates-Dallas L.P. v. 857486 Ontario Ltd. (2005), 76 O.R. (3d) 362 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 420, is instructive, even though it involved stipulated penalty clauses, not deposits. The case explored the distinction between penalties and forfeitures. 

[22]      Justice Sharpe noted, at paras. 31-32:

[C]ourts should, if at all possible, avoid classifying contractual clauses as penalties and, when faced with a choice between considering stipulated remedies as penalties or forfeitures, favour the latter.

[C]ourts should, whenever possible, favour analysis on the basis of equitable principles and unconscionability over the strict common law rule pertaining to penalty clauses.

Accordingly, he pointed out that: "the strict rule of the common law refusing to enforce penalty clauses should not be extended" (at para. 33). The reason, he explained, is "the policy of upholding freedom of contract" (at para. 34).

[23]      Justice Sharpe continued, noting that: "Judicial enthusiasm for the refusal to enforce penalty clauses has waned in the face of a rising recognition of the advantages of allowing parties to define for themselves the consequences of breach" (at para. 34). He cited in support Dickson J., who decried the prohibition of penalties as "blatant interference with freedom of contract", and advocated treating both penalties and forfeitures under the rubric of unconscionability: Elsley v. J.G. Collins Insurance Agencies Ltd., [1978] 2 S.C.R. 916 at p. 937, 83 D.L.R. (3d) 1, 1978 CarswellOnt 1235, at para. 47 (WL Can).

[24]      The point is well made in Union Eagle Ltd. v. Golden Achievement Ltd., [1997] UKPC 5, [1997] A.C. 514, by Lord Hoffmann for the Judicial Committee of the Privy Council said, at p. 519 (A.C.)

[I]n many forms of transaction it is of great importance that if something happens for which the contract has made express provision, the parties should know with certainty that the terms of the contract will be enforced. The existence of an undefined discretion to refuse to enforce the contract on the ground that this would be "unconscionable" is sufficient to create uncertainty. Even if it is most unlikely that a discretion to grant relief will be exercised, its mere existence enables litigation to be employed as a negotiating tactic.

[25]      I would agree that the finding of unconscionability must be an exceptional one, strongly compelled on the facts of the case.

Of the Law Societies of Upper Canada and Nunavut 

Friday, March 17, 2017

How to Adopt a Child in Nunavut

R.A v. S.K. and D.K. 2017 NUCJ 5:

[12]  In Nunavut there are two ways of adopting a child. One way is in accordance with Inuit custom. This does not involve the Courts or any government agencies. If a child has been adopted in accordance with Inuit custom, an adoptive parent may apply for a certificate recognizing the adoption. This is done pursuant to the ACARA, by providing certain information to a Custom Adoption Commissioner and requesting a Certificate. The Commissioner reviews the information and if he or she is satisfied that the child was adopted in accordance with Inuit custom, a Certificate recognizing the adoption is issued. The Certificate is registered with the Nunavut Court of Justice and is enforced as an order of the Court. The Certificate facilitates the issuance of birth certificates and other similar documentation.

[13] An adoption may also proceed under the Adoption Act, SNWT, 1998, c 9 (Nu) [Adoption Act]. The Adoption Act provides for departmental adoptions (where the child is in the permanent care of social services), step-child adoptions (where the adopting parent is a step-parent) and private adoptions (adoptions arranged between the birth parents and the adoptive parents). The majority of adoptions done under the Adoption Act are private adoptions.

[14] A private adoption under the Adoption Act requires that the Director of Adoptions be notified of the intention to place a child for adoption and requires that a pre-placement report be completed before the child can be placed. The biological parents must provide written consent to the adoption, after having received advice as to the legal effects of an adoption. The consent may be revoked within a specified time period.

[15] If a child from Nunavut is being adopted outside of the Territory, the child cannot be removed from the Territory until there is a pre-placement report and the approval of the Director of Adoptions. If the child to be adopted is aboriginal, the appropriate aboriginal organization, Qikiqtani Inuit Association [QIA], Kivalliq Inuit Association [Kivalliq KIA] or Kitikmeot Inuit Association [Kitikmeot KIA]) must be notified and consulted. Once a child has been placed for adoption and has been with the adoptive parents for at least 6 months, a Family Union Report is done by an adoption worker. References and criminal record checks are part of the placement process. Application is then made to the Nunavut Court of Justice to grant the Adoption Order.

[16] One of the distinctions between an aboriginal custom adoption and an adoption under the Adoption Act is the requirement for home studies and other checks to ensure the suitability of the adoptive parents. 

Confession Rule does not apply to Charter Voir Dire

R. v. Paterson, 2017 SCC 15:

The confessions rule should not be expanded to apply to statements tendered in the context of a voir dire under the Charter . The Crown must prove the voluntariness of an accused's statement before it can rely upon that statement at trial as supporting a finding of guilt. The purpose of the judicial inquiry in a Charter voir dire is distinct from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused's guilt, but on whether the accused's constitutional rights were infringed. A Charter voir dire thereforeinvolves a review of the totality of the circumstances known to, and relied upon, by the state actor at the time of the impugned action. Only the state actor's contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for the state actor to rely upon the statement as forming grounds for the action under scrutiny. Admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused's guilt, does not engage the rationale for the confessions rule. To apply the confessions rule to evidence presented at a Charter voir dire would distort both the rule and its rationale. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings. 

Of the Law Societies of Upper Canada and Nunavut