In Rasouli v. Sunnybrook Health Sciences Centre, the Ontario Court of Appeal held that the removal of life support when it is no longer medically indicated is a form of "treatment" requiring the consent of the patient under the Health Care Consent Act.
The respondent (represented by his litigation guardian) developed bacterial meningitis after surgery to remove a benign brain tumour, which left him reliant on life support for survival. According to medical consensus, there was no hope for recovery, and the life support measures were no longer medically beneficial or indicated. The appellants, the respondent's attending physicians, sought to remove the respondent from life support and begin palliative care. They argued that a patient's consent is not required when a doctor withdraws treatment that is not medically indicated or necessary, because such withdrawal does not constitute "treatment".
The Court held that the removal of life support constitutes "treatment" under the Act, and therefore requires the consent of the substitute decision maker, or of the Consent and Capacity Board. The Court reasoned that, in this case, the withdrawal of life support would necessitate the immediate administration of palliative care, in contrast to other situations involving the removal of treatment and future administration of pallitaive care, in which there may be a time gap of indeterminate length, such as the withdrawal of chemotherapy that has failed to benefit a cancer patient. Thus, the Court analyzed the withdrawal of life support and subsequent administration of palliative care as one "treatment package" or one “plan of treatment” under Section 2.1 of Act. Treating physicians must therefore obtain consent to the entire treatment package, either from the substitute decision-maker as per s.21 of the Act, or from the Board, as per s.37.
June 29, 2011
Link to Decision
Webnesh Haile
Wednesday, June 29, 2011
Elgner v. Elgner, 2011 ONCA 483
In Elgner v. Elgner, the Ontario Court of Appeal addressed the issue of whether an interim spousal support order issued under the federal Divorce Act can be appealed as a right or only with leave, as is the case with other interlocutory orders issued by Ontario Superior Courts. The Court held that in Ontario, unlike in BC, Saskatchewan and Quebec, such appeals do require leave.
At issue were ss. 21(1) and 21(6) of the federal Divorce Act and s 19(1) of the Ontario Courts of Justice Act. Section 21(1) of the Divorce Act states that “an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act”, which Mr. Elgner argued gives him a right to appeal. However, s 19(1) of the Ontario Courts of Justice Act provides that an appeal to the Divisional Court from an interlocutory order by a judge at the Superior Court of Justice is permitted only with leave. Mr. Elgner argued that these two issues are in direct conflict and that federal paramountcy must apply. Gillese J.A., however, ruled that the two sections were not in conflict because Section 21 (6) of the Divorce Act provides that the right to appeal must be asserted according to the usual provincial procedures.
June 29, 2011
Link to Decision
Mary Phan
At issue were ss. 21(1) and 21(6) of the federal Divorce Act and s 19(1) of the Ontario Courts of Justice Act. Section 21(1) of the Divorce Act states that “an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act”, which Mr. Elgner argued gives him a right to appeal. However, s 19(1) of the Ontario Courts of Justice Act provides that an appeal to the Divisional Court from an interlocutory order by a judge at the Superior Court of Justice is permitted only with leave. Mr. Elgner argued that these two issues are in direct conflict and that federal paramountcy must apply. Gillese J.A., however, ruled that the two sections were not in conflict because Section 21 (6) of the Divorce Act provides that the right to appeal must be asserted according to the usual provincial procedures.
June 29, 2011
Link to Decision
Mary Phan
Monday, June 20, 2011
Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460
In Agribrands Purina Canada Inc. v. Kasamekas, Goudge J.A. ruled that
breach of contract does not qualify as "unlawful conduct" necessary for the
tort of unlawful conduct conspiracy, and deceitful actions are sufficient
grounds for punitive damages.
Following a series of agreements, Purina supplied feed to two distributors
in the same area, violating its exclusivity agreement with one of the
distributors. The trial judge found Purina liable for the tort of unlawful
conduct conspiracy. In an attempt to define what qualified as "unlawful
conduct," the trial judge applied jurisprudence relating to the tort of
intentional interference with economic relations, under which conduct making
the defendant liable can include conduct prohibited by law, contract,
convention, or understanding. The Court disagreed with this analysis,
holding that for an action to constitute "unlawful conduct" for the tort of
intentional interference, the conduct must be actionable; it must be wrong
in law. Breach of contract, convention, or understanding, on the other hand,
are not "unlawful" for purposes of unlawful conduct conspiracy. Goudge J.A.
also noted that the two torts have evolved separately and judges should
avoid ignoring the different historical paths torts have travelled in an
attempt to create a "unified theory of economic torts."
This case also deals with the matter of punitive damages. The Court
disagreed with the trial court's reason for allowing punitive damages that
breach of contract should be discouraged. Instead, they allowed
the punitive damages by finding that Agribrands Purina's deceitful action of
supplying a competitor with merchandise when it had expressly said it would
not do so constituted a marked departure from ordinary standards of decency
and an "independently actionable" claim.
June 20, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0460.htm
Leonard Elias & Dominik Swierad
breach of contract does not qualify as "unlawful conduct" necessary for the
tort of unlawful conduct conspiracy, and deceitful actions are sufficient
grounds for punitive damages.
Following a series of agreements, Purina supplied feed to two distributors
in the same area, violating its exclusivity agreement with one of the
distributors. The trial judge found Purina liable for the tort of unlawful
conduct conspiracy. In an attempt to define what qualified as "unlawful
conduct," the trial judge applied jurisprudence relating to the tort of
intentional interference with economic relations, under which conduct making
the defendant liable can include conduct prohibited by law, contract,
convention, or understanding. The Court disagreed with this analysis,
holding that for an action to constitute "unlawful conduct" for the tort of
intentional interference, the conduct must be actionable; it must be wrong
in law. Breach of contract, convention, or understanding, on the other hand,
are not "unlawful" for purposes of unlawful conduct conspiracy. Goudge J.A.
also noted that the two torts have evolved separately and judges should
avoid ignoring the different historical paths torts have travelled in an
attempt to create a "unified theory of economic torts."
This case also deals with the matter of punitive damages. The Court
disagreed with the trial court's reason for allowing punitive damages that
breach of contract should be discouraged. Instead, they allowed
the punitive damages by finding that Agribrands Purina's deceitful action of
supplying a competitor with merchandise when it had expressly said it would
not do so constituted a marked departure from ordinary standards of decency
and an "independently actionable" claim.
June 20, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0460.htm
Leonard Elias & Dominik Swierad
Thursday, June 16, 2011
Evans v. Jensen, 2011 BCCA 279
In Evans v. Jensen, the British Columbia Court of Appeal held that, where a costs rule provides specified alternatives for an award of costs, it is not open to the court to make an award other than as expressly set out in the rule.
Prior to the trial, the defendant made an offer to settle. The plaintiff rejected the offer and went to trial; however, the settlement offer turned out to be significantly higher than the damages awarded in trial. In awarding costs to the defendant, the parties both accepted that single costs were appropriate; the trial judge, however, awarded double costs pursuant to Rule of Court 37B(5), reasoning that this rule, which presents specific alternatives as to an award of costs, removed his discretion in regards to costs.
In affirming the decision of the trial judge, Prowse J.A. noted that the absence of broad discretionary language, such as that found in other Rules of Court, indicated that the options listed in Rule 37B(5) was an exclusive list. She also noted that a binary choice between double and zero costs was consistent with the policy of encouraging settlements.
June 16, 2011
Link to Decision
Sam Golder & Dominik Swierad
Prior to the trial, the defendant made an offer to settle. The plaintiff rejected the offer and went to trial; however, the settlement offer turned out to be significantly higher than the damages awarded in trial. In awarding costs to the defendant, the parties both accepted that single costs were appropriate; the trial judge, however, awarded double costs pursuant to Rule of Court 37B(5), reasoning that this rule, which presents specific alternatives as to an award of costs, removed his discretion in regards to costs.
In affirming the decision of the trial judge, Prowse J.A. noted that the absence of broad discretionary language, such as that found in other Rules of Court, indicated that the options listed in Rule 37B(5) was an exclusive list. She also noted that a binary choice between double and zero costs was consistent with the policy of encouraging settlements.
June 16, 2011
Link to Decision
Sam Golder & Dominik Swierad
Wednesday, June 15, 2011
R. v. Arganda (J.R.), 2011 MBCA 54
In R. v. Arganda, the Manitoba Court of Appeal reduced a sentence that the Court found unfit at the time of its imposition due to facts not known to the sentencing judge, and held that the sentence could not nonetheless be upheld given the post-sentence criminal conduct of the accused.
The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.
The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.
July 15, 2011
Link to Decision
Mark Carter & Kai Sheffield
*
The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.
The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.
July 15, 2011
Link to Decision
Mark Carter & Kai Sheffield
*
Tuesday, June 14, 2011
R. v. Dippel, 2011 ABCA 129
In R. v. Dippel, the Alberta Court of Appeal ruled that an unconscious action that has the effect of indicating consent to another party cannot constitute actual consent according to s. 273.1(1) of the Criminal Code. The accused in the case was charged after he joined the complainant in a bed where she was asleep. He attempted to initiate a sexual encounter and she lifted her arm unconsciously. The trial judge found that he honestly perceived this as an invitation for him to fondle her. He then digitally penetrated her at which point she awoke and fled the room. The trial judge concluded that the complainant would not have consented with the accused.
The Court rejected the defence of honest mistaken belief in consent, holding that such a belief could only have arisen after the initial sexual contact. The Court found that the requirement to take reasonable steps to ascertain whether the complainant was consenting had not been met by the accused. Specifically, it found that ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The Court allowed the Crown's appeal and found the accused guilty. While the Court was preparing its decision, the Supreme Court of Canada released R. v. J.A., which confirmed the Alberta Court of Appeal's holding here that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act.
June 14, 2011
http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2011/2011abca0129.pdf
Leonard Elias & Dominik Swierad
The Court rejected the defence of honest mistaken belief in consent, holding that such a belief could only have arisen after the initial sexual contact. The Court found that the requirement to take reasonable steps to ascertain whether the complainant was consenting had not been met by the accused. Specifically, it found that ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The Court allowed the Crown's appeal and found the accused guilty. While the Court was preparing its decision, the Supreme Court of Canada released R. v. J.A., which confirmed the Alberta Court of Appeal's holding here that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act.
June 14, 2011
http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2011/2011abca0129.pdf
Leonard Elias & Dominik Swierad
Monday, June 13, 2011
Attorney General of Canada v. Almalki, 2011 FCA 199
In Attorney General of Canada v. Almalki, the Federal Court of Appeal held that the common-law informer privilege, a class privilege, did not apply to Canadian Security Intelligence Services ("CSIS") human sources. The issue arose in the context of an order pursuant to section 38 of Canadian Evidence Act, ("CEA") for disclosure of a number of potentially sensitive documents, certain of which were obtained from CSIS human sources.
The informer privilege, as a class privilege, protects the relationship between the informer and a peace officer. It prohibits the court from compelling the disclosure of an informant's identity so as to ensure citizen participation in enforcing the law. The court, drawing on the Supreme Court’s examination of the relationship between journalists and their sources as discussed in R. v. National Post, noted the difficulties in extending the informer privilege to other relationships. The court also observed that section 38 of the CEA established a procedure for balancing the public interests in disclosure against the public’s interest in the non-disclosure of sensitive information relating to international relations, national security and national defence. Further, section 18 of the Canadian Security Intelligence Service Act ("CSISA"), specifically provides for disclosure of CSIS information "as required by any other law". Accordingly, the court held that extending a class privilege to CSIS human sources would be contrary to the balancing mechanism set out in section 38 of the CEA as well, as the express will of Parliament as set out in section 18 of the CSISA.
June 13, 2011
Link to Decision
Grant Bishop & Steve Holinski
*
The informer privilege, as a class privilege, protects the relationship between the informer and a peace officer. It prohibits the court from compelling the disclosure of an informant's identity so as to ensure citizen participation in enforcing the law. The court, drawing on the Supreme Court’s examination of the relationship between journalists and their sources as discussed in R. v. National Post, noted the difficulties in extending the informer privilege to other relationships. The court also observed that section 38 of the CEA established a procedure for balancing the public interests in disclosure against the public’s interest in the non-disclosure of sensitive information relating to international relations, national security and national defence. Further, section 18 of the Canadian Security Intelligence Service Act ("CSISA"), specifically provides for disclosure of CSIS information "as required by any other law". Accordingly, the court held that extending a class privilege to CSIS human sources would be contrary to the balancing mechanism set out in section 38 of the CEA as well, as the express will of Parliament as set out in section 18 of the CSISA.
June 13, 2011
Link to Decision
Grant Bishop & Steve Holinski
*
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