Law Times

January 21, 2019

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BY ANITA BAL AKRISHNAN Law Times A STATUTORY trust under the province's Construction Lien Act is a valid trust that can survive bankruptcy, a panel of judges from the Court of Appeal of Ontario decided in a Jan. 14 decision, The Guarantee Com- pany of Canada v. Royal Bank of Canada, 2019 ONCA 9. The decision, which over- turns the lower court's decision and parts from jurisprudence on the Commercial List, has upheld s. 8 of Ontario's Construction and Lien Act. A statutory trust under the Construction and Lien Act will survive bankruptcy, the decision says. That will "protect the rights and interests of those engaged in the construction industry and to avoid unjust enrichment of those higher up in the construc- tion pyramid," says Matthew Lerner, a partner at Lenczner Slaght Royce Smith Griffin LLP, who represented The Guaran- tee Company of North Amer- ica, which was awarded costs of $30,000 for the motion and $45,000 for the appeal. "Previously, any proceeds that come into the hands of the contractor after a bankruptcy were treated as belonging to the secured creditor," says Lerner. "Therefore, the subcontractors, the trade — the little guy — would be out of luck. And that is no longer the case. Because the system of interlinking contracts between contractors and sub- contractors and trades is going to be preserved and recognized as still operating in a bankrupt- cy, such that they will get paid where there are proceeds avail- able to fund the trust, and not the secured creditor." The decision, written by Jus- tice Robert Sharpe, with Associ- ate Chief Justice Alexandra Hoy, and Justices Michal Fairburn, Lois Roberts and David Doherty concurring, involved appellant The Guarantee Company of North America, and respon- dents on appeal including Royal Bank of Canada, A-1 Asphalt Maintenance Ltd. (Receiver of ), IUOE Local 793 and LIUNA Local 837, and LIUNA Local 183, with the Attorney General of Ontario intervening on behalf of the appellant. A-1 Asphalt Maintenance Ltd. was deemed bankrupt in 2014, amid four major projects, three with the city of Hamilton, Ont. and one with the town of Halton Hills, Ont., Sharpe wrote in the decision. PM #40762529 BY ANITA BAL AKRISHNAN Law Times THE Human Rights Tribunal of Ontario said it was unreason- able for a woman to be fired after failing to give 48-hours-notice before calling off sick. Mary Truemner, the tribu- nal's vice-chair, awarded appli- cant Jessica Simpson $30,000 in the Jan. 4, decision, Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, finding that one of the reasons Simpson was fired was the em- ployer's need to accommodate her childcare schedule. "I find that at least one of the real reasons for the termina- tion, if not the only reason, was the applicant's unavailability for certain shifts caused by her need to provide care to her children," wrote Truemner. Christopher Dilts, an associ- ate at Sullivan Mahoney LLP in St. Catharines, Ont., who repre- sented Simpson, says the decision sends a message that while there isn't as much case law on discrim- ination based on family status, the tribunal takes those types of alle- gations very seriously. "In general, it does appear that the tribunal is increasing the size of their awards, and I think that they are sometimes using cases like this, where there is only one side present to inf luence the case law and show that awards are increasing," says Dilts. Simpson worked for the re- spondent as a personal support worker from 2013 to 2017, when she had two young children, the decision said. The ruling said Simpson, had only missed work three to four 48-hour notice for sick day called unreasonable Christopher Dilts says the Human Rights Tribunal of Ontario seems to be trending toward higher awards. Ruling overturns lower court's decision Provincially created trusts deemed valid See Conflicting, page 2 See Employee, page 3 Harness non-profits Access-to-justice promoted Page 7 Limitation periods Battle with province Page 5 COVERING ONTARIO'S LEGAL SCENE | JANUARY 21, 2019 | WWW.LAWTIMESNEWS.COM | VOL. 30, NO. 3 | $5.00 Reverse mortgages Can be an attractive option Page 7 Focus on Condominium Law Page 8 Matthew Lerner says that following a recent Court of Appeal ruling the system of interlinking contracts in the construction industry will be better preserved. Photo: Laura Pedersen www.twitter.com/lawtimes Follow Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. Visit canadianlawyermag.com/ newswire-subscribe ntitled-4 1 2018-09-12 11:32 AM Preferred Advertising Rates for Candidates Special print and online opportunities from January 14 through April 29 For more info, contact: MediaSolutions.Sales@thomsonreuters.com 416-649-8841 SAVE MORE THAN 50% OFF regular rates for all print and web bookings Untitled-1 1 2019-01-15 4:15 PM

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