Donald R. Mcleod - Law Corporation: Interesting Cases

Keiko Shinohara says her former landlord is a peeper with a penchant for watching her in the bath.

But Yves Pommelet says he did no such thing - and that the vent in the ceiling between the main floor and the basement suite Shinohara rented was completely innocent.

Shinohara is suing her former landlord in BC Supreme Court for invasion of privacy. She is asking for an unspecified amount of money' as compensation for damages suffered as a result of her privacy being invaded.

The 23-year-old UVIC student said when she realized in April of 1994 that parts of her bathroom could be seen via a vent that led to Pommelet's living area, she felt "sexually assaulted."

Shinohara noticed the vent above the vanity when she moved in. Her boyfriend later noticed a piece of black cardboard covering three-quarters of the vent.

Four days later, the cardboard covered the hole completely. Two days after that, Shinohara -said she was about to take a shower and noticed something that looked like a spring above the wire mesh in the vent."

Alarmed, she called her boyfriend. When they were sure Pommelet was sleeping, they opened the vent with a screwdriver, and saw a piece of wire mesh and cardboard, with a cloth over the opening in Pommelet's quarters.

Shinohara thought her landlord had been watching her in the bath- room, and reported it to the police.

'I would say I have suffered greatly psychologically and physically. It was really a nightmare for me. When I discovered he could watch me when I take showers, it makes me fearful and feel I was sexually assaulted. I felt anguished and cheated, and my personal dignity has been taken away," the economics student told the civil jury.

Her lawyer, Dan McLeod, told the jury that this isn't a case "where he was found with his eyeball to the viewing room. No one caught him peering into the shower from the room up above. But use your common sense - this hole could be for no other purpose."

But Pommelet and his lawyer Roxanne Heime said the vent, originally used for oil heat since replaced with electric baseboards, was going

to be used to provide a proper ventilation system for the converted garage Shinohara was renting.

The suite's kitchen and bathroom were poorly ventilated, Pommelet said, and in April he decided to do something about it, using the old oil heat vents for the job. He said he. Lifted the vent that led to Shinohara's bathroom, shifted the insulation and then put a cushion above the vent in his living quarters.

Pommelet said that after the police told him of the complaint he looked -through the vent to see what could be seen.

"It is impossible to see anyone in the tub, standing in the shower or in the area where you would dry off."

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By Kim Westad
Times Colonist staff

A Woman's lawyer says there was no direct evidence that the man had peeped at her, but it was a matter of common sense

A civil court jury put a price on privacy Thursday, awarding a UVIC student $6,219.10 because her landlord peeped at her in her bathroom. Keiko Shinohara said she felt "justice was done" after the B.C. Supreme Court Jury returned its verdict. They deliberated 2 1/2 hours. The 23-year-old woman testified that "she felt "sexually assaulted" when she thought her landlord had been' watching her in the bath and shower via a vent in the ceiling of her rented basement suite. Yves Pommelet, 62, denied doing that. Shinohara sued Pommelet in B.C. Supreme Court for invasion of privacy. The jury decided that Pommelet I violated Shinohara's privacy by constructing a vent shaft that he used to peep at her in the bath.

Shinohara’s lawyer, Dan Mcleod, said there could be no other inference from the vent in the ceiling of the basement suite at 3559 Richmond Rd. Pommelet's lawyer, Roxanne Heime, said there was a plausible explanation for it.

After finding a violation of privacy, the jury had to decide if Shinohara should be awarded money for damages.

In civil-court jury cases, the lawyers cannot suggest-the amount of money they think should be awarded. That is up to the jury.

Shinohara's lawyer, Dan McLeod, said the jury is the "conscience of the community," and should show society's condemnation of peeping by awarding money for not only Shinohara's actual out-of-pocket expenses, but for the embarrassment and loss of dignity as well.

The jury agreed, awarding $3,000 for Shinohara's loss of privacy, and total of another $3,000 for punitive and aggravated damages, which encompasses loss of pride, dignity and embarrassment suffered

There was no direct evidence that Pommelet had peeped at Shinohara, a UVIC economics student, but McLeod suggested it was a matter of common sense. The jury had to find it happened "on a balance of probabilities," not beyond a reasonable doubt, as criminal juries must do.

Pommelet testified he planned to use the non-functioning heat register to construct a vent for the rental suite's malfunctioning kitchen fan, and additional ventilation for the bathroom.

His lawyer suggested that Shinohara and the Saanich Police jumped to conclusions about Pommelet with no proof.

"Once they had the blinkers on, that was it - they were off to court," Helme told the jury.

One of the issues during the trial was exactly how much of the bathroom could be seen from the vent. One police officer said the drying off area outside the tub could be clearly seen. Another said very little could be seen because of where the vent was situated.

Forget plugging the meter - an interesting might be a better way to ward off a parking ticket.

If the space between meters is less than 6.5 meters, and you're ticket for parking in a "metered space," you may have the same successful defense Carol Louch did Thursday in Victoria Provincial Court.

Louch received two parking tickets this spring, for parking at an expired meter, and double metering (putting additional money in the meter).

The ticket specifies the Victoria woman was unlawfully parked in a metered space."

"Since neither space meets the requirement of the definition of metered space under the bylaw, she cannot be found guilty," Judge Jeanne Harvey ruled.

Harvey noted that Louch may have contravened other parking regulations, but she was not charged with them.

B.C. Supreme Court Justice Jacqueline Dorgan rejected Friday attempts by Monte Vanton to introduce new evidence not heard when the B.C. Human Rights Council ordered him to pay an ex-employee $26,294 for sexual harassment and wrongful dismissal.

The Victoria businessman is seeking a judicial review of the council's decision ordering him to Pay Donna. Garrow $24,294 lost wages and the maximum $2,000 for humiliation and suffering.

The council upheld her complaint that she was fired by Vanton as manager of his-City Copy Center store for refusing to tolerate sexual advances and suggestive remarks.

Garrow's lawyer Don McLeod filed preliminary objections with Dorgan, saying the court can review only what has happened before the Human Rights Council and cannot consider new evidence.

Dorgan agreed and said a judicial review is limited to whether or not, on the face of the record, there was unfairness and whether or not the council came to an unreasonable decision on the material before it.

She said it would be improper for the court to consider evidence other than the material before the council hearing.

She struck out a number of affidavits and "voluminous exhibits" filed by Vanton and by his lawyer, Gary Botting.

Dorgan said the material to be considered at the judicial review should be limited to the council's decision, the reasons for the decision, the transcript of the hearing, Vanton's petition for judicial review and a "succinct" affidavit.

Dorgan also noted that Botting conceded he had failed to give the Attorney General's Ministry 14 days notice of a constitutional challenge of the Human Rights Code.

While Botting favored proceeding with the judicial review and dealing with the constitutional challenge later, Dorgan said it would be "highly inappropriate" to commence the review on part of the case without commencing it on all points to be raised."

But Dorgan said it would not be fair to stop Vanton from arguing the constitutional question, as sought by the council's lawyer. Sheila Steick.

Dorgan granted an adjournment and Feb. 10 and 11 were set later to hear Vanton's judicial review.

She awarded costs against Vanton, which McLeod, outside court, said would amount to between $300 and $540.

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Times Colonist

A Saanich woman who was forced to retire from the Canada Farm Labor Pool in Victoria when she turned 65 was awarded damages of four months' wages Tuesday by the B.C. Court of Appeal.

Margaret Brown, 66, of Garnet Road had worked at the company for five years when she was ordered to retire In July 1984.

Brown had challenged her retirement in county court as a violation of the B.C. Human Rights Act and a breach of her employment contract, but her action was dismissed

The appeal court was told Tuesday the Farm Labor Pool had no provision for mandatory retirement at 65 when Brown was hired.

Brown's employer, Mervyn Coles, discussed her forced retirement with her about a month before her 65 th birthday

The appeal court, in a unanimous decision, awarded Brown four months' salary in lieu of reasonable notice.

The sum, plus interest was to be reduced by five weeks wages she had been given.

Brown's Lawyer was Don McLeod of Victoria. Brian Roberts represented Coles, and the Labor Pool, a federally financed independent contractor that provides agricultural laborers to employers in the region.

A 74-year-old Florida tourist who took a tumble on stairs at Redd's Roadhouse pub in the Holiday Inn on Blanshard Street and ended up with a hip replacement has been awarded $74,547 damages in B.C. Supreme Court.

In addition, Eileen Wells of Niceville will receive court-ordered costs of $31,042, her lawyer, Don McLeod, said outside court on Thursday.

Wells was looking for ice for her wheelchair bound husband after they checked into the Holiday Inn. She was directed to Redd's pub because the ice machines weren't working.

Justice John Bouck ruled that the boundaries of stairs between two levels in the pub where the accident happened on July 18, 1996, were not defined by hand railings, a situation that a witness said was corrected three years later.

While the pub said there was a hand railing on one side of the stairs at the time, Bouck said in a written judgment that it was not a hand railing, designed for the stairs "since it did not track the angle of the stairs."

Bouck added: "Due to the lack of railings the stair configuration did not comply with the National Building- Code at the time of construction in 1986."

He said that the pub, "ought to have foreseen that Mrs. Wells might be harmed having regard to all the circumstances in this case. They ought to have been alerted to the danger posed by the lack of handrails beside the stairs and taken reasonable steps to correct the problem."

He noted that Wells sought damages of $100,000 to $115,000 while the pub and hotel said the range is $30,000 to $50,000. He set damages for pain and sufferance at $55,000 plus S19,547 for other damages.

After the fall, Wells and her husband returned to the United States where she had surgery in Bellingham, Wash., spending 22 days in hospital and 17 days recovering in an extended-care facility.

She said that before the accident she could do anything she wanted to do, and traveled frequently with her husband. Now, she cannot take long walks or walk quickly, must use a cane occasionally, cannot garden the way she used do and cannot run a vacuum cleaner.

A Victoria couple whose wedding pictures were ruined by the photographer has settled for $9,400 damages from the studio.

The out-of-court agreement came Monday just before a B.C. Supreme Court jury was to have heard the case of Keith and Karen Hennessey.

They were married on July 4, 1987, at Royal Roads Military College and the reception was held at Work Point Barracks.

Karen's parents, David and Mary Holland, paid $640 to Sooter Studios Ltd., which sent photographer Robert Fraser to do the job.

But the result was that most of the 86 promised photographs were never produced, said lawyer Don McLeod who represented the Hennesseys and Hollands.

Those which came out were out of focus and portions of peoples' faces, heads, bodies, arms, legs "and the like were out of frame in many of the photographs and hence were cut from those photographs," the Hennesseys and Hollands said in their lawsuit.

Mcleod told Justice Kenneth Murphy in B.C. Supreme, Court that the lawsuit was settled last Friday by consent for $9,400 payment by Sooter Studios, which is discontinuing its action against the photographer who "has vanished."

Murphy adjourned the case to await payment of the $9,400 when McLeod will file a motion for an order dismissing the lawsuit.

The Hennesseys and Hollands twigged to what happened to the wedding photographs when they saw an article and photograph in the times-Colonist in 1988 involving a Victoria couple's wedding in Port Alberni.

Chris and Thelma Wilson were awarded $1,000 by Justice Allen Melvin in B.C. Supreme Court - an amount which they unsuccessfully challenged in B.C. Court of Appeal - when all but 10 of their wedding pictures didn't turn out.

Thirty-seven of the Wilsons photographs not only showed them but another couple's wedding.

McLeod said the Hennessey's had already begun their lawsuit but it was a mystery where their photographs were. The studio kept saying it could not find them.

The Hollands saw the double-exposure photograph in the Times Colomnist of the Wilsons wedding party and recognized members of their own wedding party.

"It became obvious that one or more rolls of film were used for both weddings," said McLeod, "and that is why most of the pictures could never be found, that is my supposition."