Bruce G. Thomas

A children’s aid society appealed the dismissal of its summary judgment motion seeking Crown wardship without access in a child protection proceeding.

The motions judge had refused the order due to concerns about hearsay evidence and insufficient detail addressing statutory requirements under the Child and Family Services Act, including the plan of care and efforts to assist the parent.

The appeal court held that summary judgment is available in child protection cases where there is no genuine issue requiring a trial and that the affidavit evidence was sufficient in context, particularly given the absence of opposition and the parent’s consent.

The court also accepted fresh evidence regarding the child’s placement and adoptability.

The appeal was allowed and the court substituted an order finding the child in need of protection and granting Crown wardship without access.

The appellant appealed a conviction and sentence for sexual assault following a summary conviction trial.

The trial judge had found a reasonable doubt about the complainant’s lack of consent but concluded that any consent was legally vitiated by abuse of a position of trust or authority under ss. 265(3) and 273.1(2)(c) of the Criminal Code and by public policy considerations.

The appeal court held that the statutory provisions require proof of both the existence of the position and evidence that the complainant’s free will was overborne by the abuse of that position.

While a trust relationship between the parties could be found, there was no evidence establishing the subjective impact of that relationship on the complainant’s consent.

The court also held that civil law doctrines such as unconscionability and fairness cannot independently vitiate consent in criminal law where Parliament has already addressed the issue in statute.

On a Rule 20 summary judgment motion, moving defendants sought dismissal of claims as statute-barred under ss. 4 and 5 of the Limitations Act, 2002.

The court heard affidavit and oral evidence on discoverability and due diligence, and found the responding parties knew by 2005-2006 of the impugned transfer and related litigation but chose not to investigate potential claims against additional actors.

Applying the objective branch of discoverability and diligence principles, the court held that a reasonable person in their circumstances ought to have known the material facts in 2006.

The court concluded there was no genuine issue requiring trial on the limitations defence and dismissed the action against the moving defendants.

The defendants brought a motion to remove the plaintiff’s law firm as solicitors of record on the basis of conflict of interest.

A lawyer associated with the firm had previously been retained by the hospital defendant to assist with workplace conflict mediation and had obtained confidential information while acting in that capacity.

The court found that the lawyer was an associate of the firm and that the hospital was therefore a client of the firm.

Applying the “bright line” rule from R. v. Neil and the principles from MacDonald Estate v. Martin, the court held that a law firm cannot act against a current client in directly adverse litigation absent informed consent.

Because confidential information was obtained and no effective screening measures existed, the firm was disqualified.