Law Times

January 28, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 28, 2019 15 pairment. Voir dire was held to determine permissible scope of expert testimony. Order accord- ingly. Chiropractor Dr. Sm was qualified to give expert opinion evidence on general anatomy of spine and muscles and tissues surrounding esophagus. Dr. Sm did not review plaintiff 's medical records and was not qualified to give evidence on achalasia. Chi- ropractor Dr. Sc had extensive prior involvement with plaintiff. Methodology of Dr. Sc and parti- san approach raised concern that Dr. Sc was not impartial. Dr. Sc was not permitted to give any opinion evidence. Orthopaedic surgeon Dr. M was admittedly not qualified to diagnose acha- lasia. Dr. M was permitted to give expert opinion evidence on general anatomy of spine and muscles and tissues surrounding esophagus, and possible exacer- bation of plaintiff 's swallowing difficulties because of active trig- ger points. Hamelin v. Mikkelsen et al. (2018), 2018 CarswellOnt 9515, 2018 ONSC 2984, W.D. Newton J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW termination and dismissal Defendant played " hardball litigation" Plaintiff sued defendant for wrongful dismissal. Plaintiff moved for summary judgment and achieved complete success on motion. Plaintiff brought mo- tion seeking substantial indem- nity costs of $35,000.00. Costs of $35,000.00 awarded to plain- tiff. Defendant argued that after plaintiff mitigated, monetary amount sought was within mon- etary jurisdiction of Small Claims Court and should be transferred there rather than continuing on by way of summary judgment. That argument was specifically rejected on grounds that it would have been unfair to plaintiff to send matter to Small Claims Court at that point. It would have effectively penalized him for mitigating his damages by finding new job. One of reasons for rejecting move was that costs jurisdiction would be limited in Small Claims Court. Each of of- fers to settle contained term that $17,000.00 would be paid by de- fendant on account of salary less withholdings. Judgment awarded plaintiff more than $17,000.00. Furthermore, plaintiff 's first offer to settle was for $2,500.00 in gen- eral damages for mental distress. Plaintiff 's second offer to settle did not include amount for gen- eral damages. Plaintiff was even- tually awarded $7,500 for mental distress. Obviously, plaintiff did better at trial than offers. Defen- dant played "hardball litigation". When taking into account offer to settle and manner in which case was litigated, $35,000.00 in substantial indemnity costs, all– inclusive, payable to plaintiff, was appropriate. Thambapillai v. Labrash Security Services Ltd. (2017), 2017 CarswellOnt 8253, 2017 ONSC 3299, R.F. Goldstein J. (Ont. S.C.J.); additional reasons (2016), 2016 CarswellOnt 15985, 2016 ONSC 6068, R.F. Goldstein J. (Ont. S.C.J.). Iissues of termination clause enforceability and bonus entitlement were not particularly complex Employee worked for employer for over seven years under agree- ment with termination clause. Employee was dismissed with- out cause by employer and given 20 weeks' notice but no bonus or benefits. Motion judge awarded employee $106,883.02 including interest on employee's motion for summary judgment, finding termination clause unenforceable and employee entitled to eight months' notice and pro-rated bonus for nine months but not for employment benefits during additional notice period. Hearing was held to determine costs. Em- ployee was awarded costs fixed at $35,000 plus HST and disburse- ments of $1,621.49 plus HST. Em- ployee was successful on all is- sues other than claim for benefits during additional notice period. Overriding principle when fixing costs was that amount of costs be reasonable in circumstances rather successful litigant's actual costs. Employer would not ex- pect to pay $71,701.63 in costs on damages award of $106,883.02 for success on summary judgment motion argued in half day. Time spent by employee's counsel was disproportionate. While volume of relevant cases, including very recent jurisprudence, was con- siderable, issues of termination clause enforceability and bonus entitlement were not particularly complex, especially for seasoned employment lawyer such as em- ployee's counsel. There also ap- peared to be some duplication of effort. Analysis of law applicable to termination clause did not re- quire development of novel argu- ments. Employee was awarded judgment more favourable than terms of offer he made early in proceedings. Andros v. Colliers Macau- lay Nicolls Inc. (2018), 2018 CarswellOnt 13745, 2018 ONSC 4954, Dietrich J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 7263, 2018 ONSC 1256, Dietrich J. (Ont. S.C.J.). Municipal Law BYLAWS enforcement Town's overall conduct suggested acquiescence Since 1979 respondent W had been earning his livelihood by op- erating trucking business from his home located in applicant town. Prior to 2012 land surrounding W's premises were farmlands, but with approval of subdivision and construction of luxurious homes immediately across from W's very modest premises, agri- cultural character in area began to change, and town received many complaints about W's business from new residents. Town applied for declarations that W's business contravened current bylaw and never conformed with former bylaw, and for permanent in- junction. Application dismissed. Whether W's trucking business conformed with former bylaw on date when current bylaw was introduced and whether it contin- ued to conform with it was triable issue, as evidence before court was insufficient and conf licting as be- tween parties to permit finding on conformity of trucking busi- ness. While onus was on respon- dents to satisfy court that trucking business conformed with former bylaw, it was impossible to make finding without benefit of trial in face of conf licting evidence from town. Whether doctrines of laches or promissory estoppel of- fered defence also required trial. Fuller evidentiary record might provide explanation as to why W was permitted to operate business for 38 years and why he would incur very substantial expenses over years to allegedly remain in conformity with former bylaw if those various measures were now being described by town as insufficient for compliance and if business was never compliant. Whether W was able to operate for so many years because of of- ficially induced error, because of town's indifference or because of other exigencies and competing demands was open question that was not possible to determine on evidence before court. While town warned respondents that it would commence enforcement proceedings against them, that occurred 18 years ago and it did not follow through with its warn- ing. Respondents maintained that they always addressed town's concerns, but they did not pro- duce any affirmative communi- cation concerning their compli- ance from town. Absent fuller evidentiary record to explain town's years of inaction, its overall conduct suggested acquiescence rather than management of com- peting priorities. Trial was direct on issues of whether W's trucking business conformed with former bylaw on date current bylaw came into force and whether it contin- ued to conform, and whether re- spondents could rely on doctrines of laches or promissory estoppel. Town Of Grand Valley (Corporation Of) v. Walker (2018), 2018 CarswellOnt 14421, 2018 ONSC 4915, Tzimas J. (Ont. S.C.J.). Real Property EASEMENTS distUrbance of easements Neither widening of door frames nor replacement of doors increased burden on servient tenement Neighbours owned historic three- storey property attached to own- ers' building. Under title deeds, neighbours had easement over part of owners' property for inte- rior access to neighbours' upper f loors and roof. When granted, easement was neighbours' pre- decessors' sole access to third f loor and roof, but this was no longer case. Neighbours reno- vated, widening third f loor door frame through which easement passed to make fire exit, and re- placing second and third f loor doors to comply with building and fire regulations. Owners in- terfered with right of way. Appli- cation judge declared easement valid and ordered owners not to interfere with neighbours' rights under easement, including right to renovate. Owners appealed. Appeal dismissed. Application judge did not err in finding ease- ment permitted neighbours to alter door frames and doors to use easement as emergency exit. Modest widening of door frames was not increasing size of ease- ment. Grant was silent on size of door frame and dimensions of easment remained same as be- fore. Neither widening of door frames nor replacement of doors increased burden on servient ten- ement. Original grant was broad enough to include use of ease- ment as emergency exit and reno- vations did nothing more than render it usable for that purpose. Fact that neighbours could fulfill same purpose by other means was irrelevant to necessity analysis. Clarke v. Kokic (2018), 2018 CarswellOnt 14074, 2018 ONCA 705, P. Lauwers J.A., B.W. Miller J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 16640, 2017 ONSC 6485, Bloom J. (Ont. S.C.J.). Remedies INJUNCTIONS prohibitive injUnctions Failure to provide specific source of information and belief was also failure to make full and fair disclosure Employee worked for employer as sales representative. Written employment contract contained non-solicitation clause, non-com- petition clause, and confidenti- ality clause. Employee resigned due to adverse attention from co-worker and allegedly went to work for competitor and solicited employer's customers. Employer commenced action against em- ployee for relief for breach of re- strictive covenants. Employer suc- cessfully brought ex parte motion for interim injunction restraining employee from contacting em- ployer's customers and from us- ing employer's confidential infor- mation. Employer brought mo- tion for order extending interim injunction. Motion dismissed. Several aspects of employer's affi- davit evidence had failed fair and full disclosure obligation, includ- ing significant failure to disclose source of information. Failure to specify source of information was contrary to R. 39.01(4) of Rules of Civil Procedure, and affidavit evidence based on information and belief was therefore inadmis- sible. Failure to provide specific source of information and belief as required by R. 39.01(4) was also failure to make "full and fair disclosure of all material facts" as required by R. 39.01(6). Em- ployer's assertion that employee was working for competitor was actually contrary to employee's evidence that she had been work- ing elsewhere since she resigned. Evidence did not currently sup- port employer's position. Planet Paper Box Group Inc. v. McEwan (2018), 2018 CarswellOnt 19423, 2018 ONSC 6991, R.E. Charney J. (Ont. S.C.J.). Torts FRAUD AND MISREPRESENTATION remedies Plaintiff entered workforce two years later as result of defendant's actions Deceit. Plaintiff was talented musician who applied to study at conservatory in California, under one of best instructors in world, on full scholarship. Plaintiff was in relationship with defendant, who wanted to prevent him from moving away. Defendant inter- cepted acceptance email from in- stitution, impersonated plaintiff and declined offer and then cre- ated fake email account to offer plaintiff spot in program without full scholarship, which she knew he could not afford and would decline. Plaintiff brought action for damages for deceit, intrusion upon seclusion, invasion of pri- vacy, and intentional or negligent inf liction of mental suffering. Defendant was served with state- ment of claim and did not de- fend. Plaintiff motion for default judgment. Motion granted. De- fendant was resident of Ontario at time of events so Ontario had jurisdiction simplicter. Torts oc- curred in Quebec but there was no evidence submitted of Quebec law so justice was best served by applying Ontario law. Defendant committed tort of deceit. Loss of educational opportunity and loss of income were primary dam- ages suffered and award under these headings would address any short-term loss of reputa- tion. Plaintiff completed degree in Montreal and eventually was able to study with instructor two years later in certificate program. Plaintiff lost $50,000 USD value of scholarship, spent $25,500 USD on additional two years of education and $15,000 USD on living expenses. Plaintiff en- tered workforce two years later as result of defendant's actions, so lost $143,000 USD income for playing in orchestra. Plaintiff sought $300,000 general dam- ages in statement of claim and damages as calculated exceeded that amount, so he was granted default judgment for $300,000 general damages. Abramovitz v. Lee (2018), 2018 CarswellOnt 9359, 2018 ONSC 3684, D.L. Corbett J. (Ont. S.C.J.). CASE LAW

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