Law Times

October 1, 2018

The premier weekly newspaper for the legal profession in Ontario

Issue link:

Contents of this Issue


Page 14 of 15

Law Times • OcTOber 1, 2018 Page 15 Labour and Employment Law EMPLOYMENT LAW Relationship to third parties While tortfeasors were jointly and severally liable to plaintiff, they were to apportion liability between each other Fire took place in parking garage of building, which housed two transformers belonging to defen- dant city hydro authority. Fire led to series of explosions, collaps- ing part of f loors of garage. Two separate actions were brought against hydro authority, both of which authority defended. Authority brought third party claims against owner of building and municipality. Owner made crossclaim against city, and coun- terclaim against authority. City issued crossclaim against owner. Authority settled original ac- tions with plaintiffs, then settled claims with city. City claimed that authority and owner should be limited from pursuing full claims. City brought special case motion, with consent of other parties, for this relief. Motion granted in part. Authority's claims in tort against city and owner were limited to several share of liability. While tortfeasors were jointly and sev- erally liable to plaintiff, they were to apportion liability between each other. It would be unfair for owner to have greater share of li- ability imposed, as non-party to settlement agreement. It was plain and obvious that authority's claim against owner for full amount could not succeed. Toronto Hydro v. Gonte and City of Toronto (2018), 2018 CarswellOnt 11680, 2018 ONSC 4315, Copeland J. (Ont. S.C.J.). EMPLOYMENT LAW Termination and dismissal Pensions not meant to protect against loss of employment but were benefit earned for years of service Long-term employees, D and P, were offered less favorable em- ployment with successor em- ployer. D and P began receiving pension benefits and brought ac- tions for wrongful dismissal and successful motion for summary judgment, and were each awarded 26 months' notice. Hearing was held to determine damages. Is- sue arose as to whether employer was entitled to deduct from dam- ages increase in commuted value of pensions based on employer's expert's report that commuted value of D's pension was $189,117 higher due to termination and P's was $108,610 higher, and whether D and P were entitled to pension contributions during notice. No amount was to be deducted from employees' damages to account for increase in commuted value of pensions; employees were not entitled to pension contributions employer would have made dur- ing notice. There was no prin- cipled reason to distinguish be- tween this case and 2013 Supreme Court decision wherein it was held that pension benefits were form of retirement savings earned through years of service, whether focus was on pension benefits received or increase in value of pensions. In either case, pensions were not meant to protect against loss of employment, but were benefit earned for years of service. Reason commuted value of pen- sion was higher on termination than at end of notice was because employees began receiving ben- efits sooner. There was no rational difference between clawing back benefits paid out during notice and deducting increase in value resulting from termination. With respect to entitlement to contri- butions during notice, there was no evidence employees suffered pension loss; contrary was true. In assessing difference in value of pension between actual date of termination and date when employment could have been ter- minated after proper notice, court had to take into account pension payments received during notice period. If, based on early com- mencement of pension benefits, employee's overall pension pack- age was better off than it would have been had employee com- pleted longer term of employ- ment, awarding damages under guise of pension loss would serve to put employee in more favor- able position under employment contract than if never terminated, which undermined principle that wronged employee was only entitled to be put in as good posi- tion as he would have been had there been proper notice. Given that D and P suffered no pension loss, awarding amounts employer would have contributed to pen- sion during notice period would put them in better position. Dussault v. Imperial Oil Limited (2018), 2018 Carswel- lOnt 11518, 2018 ONSC 4345, Favreau J. (Ont. S.C.J.); addition- al reasons (2018), 2018 Carswel- lOnt 2504, 2018 ONSC 1168, Favreau J. (Ont. S.C.J.). Municipal Law ZONING Nature and scope Use of woodchipper was naturally and normally incidental to overall use of property Appellant was homeowner, whose home was approximately 450 me- tres from respondent greenhouse owner. Homeowner complained about noise coming from green- house, which chipped wood as part of its business. Homeowner brought application to court for declaratory relief against green- house owner. Homeowner was unsuccessful. Homeowner ap- pealed from dismissal of applica- tion. Appeal dismissed. Applica- tion judge properly found that use of woodchipper was naturally and normally incidental, to over- all use of property. Processing of wood was necessary to heat greenhouse. Wood chips were not used for any other purpose. There was evidence that another green- house in province grinded fuel on site, as owner's business did. No objection was taken to admitting this evidence. Hutchinson v. Norfolk (County) (2018), 2018 Carswel- lOnt 10420, 2018 ONCA 592, Janet Simmons J.A., Grant Hu- scroft J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 265, 2018 ONSC 181, D.J. Gordon J. (Ont. S.C.J.). Natural Resources MINES AND MINERALS Practice and procedure Record not supporting position that desire for MOU was disguised desire to block issuance of permit Director of Exploration for Ministry of Northern Develop- ment and Mines ("Director") granted exploration permit to L Inc.. E First Nation brought application for judicial review to set aside permit on basis that director failed to properly dis- charge Crown's duty to consult. Application allowed and Direc- tor's decision to grant permit was set aside. Application was remitted back to Director pend- ing completion of adequate con- sultation with E. Certain clear expectations were created by Crown and its delegate, L Inc., as to how duty to consult would be fulfilled in this case and then, without meeting expectations or offering explanation as to why they could not be met, Crown changed process in such way as to render it one that could not reasonably be considered to be genuine attempt at talking to- gether for mutual understand- ing. E and L Inc. agreed that Memorandum of Undertanding ("MOU") should be negotiated before permit was issued. Min- istry was advised of this fact by L Inc. and did not in any way indicate that this was somehow contrary to Ministry policy. E and L Inc. also agreed that MOU would be negotiated at the sec- ond community meeting. Since that meeting was not held, no at- tempts were made to negotiate a MOU. Record did not support L Inc.'s position that E's desire for MOU was disguised desire to block issuance of permit. Eabametoong First Nation v. Minister of Northern Devel- opment and Mines (2018), 2018 CarswellOnt 11572, 2018 ONSC 4316, Marrocco A.C.J.S.C., Sachs J., and C.J. Horkins J. (Ont. Div. Ct.). Public Law ELECTIONS Practice and procedure on controverted elections Municipality had responsibility to vigorously defend against scurrilous allegations that cast shadow on elected officials Where pursued injunctive relief. Unsuccessful candidate F and another person S alleged wrong- doing on part of various officials during municipal election. Police concluded there was no basis for charges, so F and S swore pri- vate information before justice of peace. F and S successfully brought application for interim injunction preventing destruc- tion of election records pend- ing hearing by justice of peace. Injunction application marked beginning of protracted and highly contentious litigation that spanned more than two years, involved 11 appearances, and saw filing of hundreds of docu- ments. Justice of peace ultimately declined to issue process due to lack of basis for charges. Parties made submissions on costs of in- junction application. F and S were ordered to pay partial indemnity costs to municipality on joint and several basis in fixed amount of $121,892. Allegations made by F and S were very serious, striking at core of democratic process and calculated to undermine public confidence in duly elected offi- cials. Municipality had responsi- bility, in public interest, to vigor- ously defend against scurrilous allegations that had cast shadow on elected officials. F and S had challenged integrity of election, and status of duly elected officials, without cause. Nature of allega- tions and conduct of F and S dur- ing course of litigation, includ- ing attempts by S to characterize himself as non-party when con- venient, justified significant costs award, though not on substantial indemnity basis since particulars of allegations had not been made public. Notion that F and S were public interest litigants was re- jected, with F in particular hav- ing direct personal and financial interest in these matters. Ford v. Windsor (City) (2018), 2018 CarswellOnt 11782, 2018 ONSC 4211, Renee M. Pomerance J. (Ont. S.C.J.). Torts DEFAMATION Practice and procedure No evidence that defendant acting other than in pursuit of its genuinely held beliefs Strategic lawsuit against pub- lic participation. Plaintiff was lawyer who ran as candidate for particular political party in 2015 federal election and who con- tinued to be involved with that party. Plaintiff published exten- sively on matters of public inter- est in social media, advocating for Palestinian rights and being critical of conduct of number of states and governments, includ- ing Israel, for alleged human rights violations. Defendant was organization that had advocated for Canadian Jewry and cham- pioned cause of human rights since 1875. Defendant published article alleging plaintiff "has used social media to advocate on behalf of terrorists who have murdered Israeli citizens", and republished similar statement in online tweet with link to original article. Plaintiff brought action against defendant for damages for libel. Defendant brought motion for order pur- suant to s. 137.1(3) of Courts of Justice Act dismissing action as strategic lawsuit against public participation. Motion granted. While recognizing that law was unsettled regarding standard of proof on this type of motion, balance of probabilities was used in accordance with two authori- ties. Defendant's expression was about matters of public interest. There could be no doubt that subject matter of article was one that invited public attention; af- fected welfare of citizens; and attracted considerable contro- versy; all of which were outlined in definition of public interest in Supreme Court of Canada au- thority. While plaintiff 's claim was assumed to have merit, plaintiff was unable to demon- strate defence of fair comment could not succeed. There was no evidence that defendant was acting other than in pursuit of its genuinely held beliefs or with malice. Lascaris v. B'nai Brith Can- ada (2018), 2018 CarswellOnt 10469, 2018 ONSC 3068, H.A. Rady J. (Ont. S.C.J.). FRAUD AND MISREPRESENTATION Pleadings Trial judge able to try two sets of claims while reducing prejudice to defendants Defendant driver struck pedes- trian with vehicle, allegedly caus- ing catastrophic injuries leaving pedestrian unable to work and requiring 24-hour attendant care. Plaintiff pedestrian and fam- ily brought action against driver for personal injuries, claiming at least $20 million in damages. Driver transferred interest in matrimonial home to wife for $2. Plaintiffs registered Certificate of Pending Litigation against title to home and amended claim to add driver's wife as defendant, assert claim under Fraudulent Convey- ances Act, and claim punitive damages based on claim under Act. Driver brought motion for order dismissing claim under Act or staying claim pending out- come of personal injuries claim. Motion dismissed. Requiring litigation of two sets of claims at same time might result in ad- ditional expense and difficulty for defendants but, on balance, it was better that claims proceed at same time. If plaintiffs failed in personal injuries claim or ob- tained judgment within $1 mil- lion policy limits, claim under Act would be moot and driver's wife will have participated in litigation unnecessarily; if not, plaintiffs would be delayed in col- lecting and would be put to extra expense of further examinations and second trial. Trial judge would be able to try two sets of claims while reducing prejudice to defendants. Any additional production and discovery would be minimal. Any unnecessary in- volvement of driver's wife could be compensated in costs. Multi- plicity of proceedings would be avoided to extent possible. Ahmed v. Rowe (2017), 2017 CarswellOnt 5509, 2017 ONSC 2289, Gray J. (Ont. S.C.J.). CASELAW

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - October 1, 2018