Law Times

Law Times • May 27, 2013 possibly succeed. Respondents' motion for summary judgment was granted and action was dismissed. Appeal dismissed. Motion judge was correct to view breach of contract and breach of duty of good faith issues as being capable of resolution on summary judgment basis. Motion judge's analysis of issues was correct. Motion judge carefully and comprehensively reviewed record, which strongly documented extent and fairness of respondents' process for considering franchisees' position with respect to transition to new production system. Fairview Donut Inc. v. TDL Group Corp. (Dec. 6, 2012, Ont. C.A., J.C. MacPherson J.A., Robert P. Armstrong J.A., and Alexandra Hoy J.A., File No. CA C55239) Decision at 212 A.C.W.S. (3d) 635 was affirmed. 225 A.C.W.S. (3d) 31. Employment EMPLOYMENT STANDARDS Termination provisions violated legislative requirements Motion by employee for partial summary judgment relating to unenforceability of termination provisions in employment contract. Employee commenced employment as associate golf professional at employer's golf club in May 2007. Employee became head golf professional in January 2008. Employment contract contained termination provisions that included payment in lieu of notice for termination without cause. Employer terminated employee without cause in October 2010. Employer paid plaintiff three weeks' pay in lieu of notice plus other payments. Application granted. Termination provisions were unenforceable so employee was entitled to reasonable notice in accordance with common law principles. Termination provisions were unenforceable due to violation of legislative requirements concerning provision of benefits upon termination. Termination provisions provided for termination of benefits prior to end of notice period contrary to s. 61(1) of Employment Standards Act, 2000 (Ont.). Termination provisions were therefore null and void pursuant to s. 5(1) of Act. Fact that termination provisions referred to "Employment Standards Act of Ontario" without more specific citation would not have rendered them unenforceable. Stevens v. Sifton Properties Ltd. (Oct. 9, 2012, Ont. S.C.J., I.F. Leach J., File No. SR 3774-11) 225 A.C.W.S. (3d) 127. Injunctions NEGATIVE COVENANT Appellant's challenge was attempt to resile from commitments Appellant appealed application judge's granting of injunction. Appellant was dentist. Appellant agreed with respondent that he would carry on his dental Page 15 CASELAW practise at dental centre owned and operated by respondent. Appellant assumed responsibility for existing dental practise and for dental care of new patients. Respondent terminated its arrangements with appellant. Before appellant received notice of termination he made copies of all patient lists, without respondent's knowledge or consent. Appellant took lists with him with the intention of informing patients of new dental practise he was setting up at new location. Respondent took position that appellant violated non-solicitation covenant in favour of respondent given by appellant. Respondent successfully applied for injunction. Appeal dismissed. From outset of dealings with respondent, appellant recognized respondent's efforts in developing centre and its desire to protect its investment in centre and business. Appellant specifically acknowledged respondent's goodwill. Appellant contracted to obtain benefits of "turn key" dental practise built by other. Having expressly acknowledged respondent's right to protect its investment at centre, it was not open on termination of agreement to deny respondent's proprietary interest in business conducted and premises or its right to protect that interest by injunction. Provisions of agreement, read as whole, indicated that non-solicitation covenant was reasonable. Ambit of non-solicitation covenant was constrained. Non-solicitation covenant placed no restriction on location of any new dental practice to be established by appellant. Contractual arrangements between parties did not offend regulatory scheme for dentists. Appellant sought to challenge validity of entire management agreement by impugning propriety of his financial arrangements with respondent after fact. Appellant's challenge was another attempt by him to resile from his commitments under agreement. Smilecorp Inc. v. Pesin (Dec. 5, 2012, Ont. C.A., D. O'Connor A.C.J.O., E.A. Cronk J.A., and R. Juriansz J.A., File No. CA C55388) 225 A.C.W.S. (3d) 213. Judgments and Orders SETTING ASIDE Appeal judge not entitled to replace one reasonable inference for another Plaintiff appealed dismissal of action. Master set aside registrar's order of dismissal of plaintiff 's claim. Master found that: delay was not intentional; delay was inadvertent; plaintiff 's counsel moved promptly upon learning of dismissal; and there was no evidence of actual prejudice to defendants. Defendants appealed. Appeal was allowed and registrar's order was reinstated. Appeal judge found that master misapprehended evidence on delay, which caused him to wrongly find it was mere inadvertence. Appeal judge found that evidence of delay amounted to conduct that was negligent or bordering on negligent. Appeal allowed. Master specifically referred to proper test and engaged in weighing evidence. He found that just result was to set aside dismissal order. Master's order was discretionary and was made as part of duty to manage trial list. Decision attracted significant amount of deference. Just because appeal judge was of view that conduct was negligent or bordering on negligent did not mean that master was not entitled to find conduct not to be deliberate. Appeal judge was not entitled to replace one reasonable inference for another just because he disagreed with decision under review. Inference drawn by master that delay was inadvertent was reasonable based on evidence. Fact that appeal judge's inference that delay was caused by negligence was also reasonable did not amount to reversible error on part of master. Appeal judge erred in failing to accord significant deference to master's decision. Master considered and balanced all appropriate factors and conclusion based on evidence was reasonable. There was no basis to interfere with master's decision and it was reinstated. Habib v. Mucaj (Dec. 14, 2012, Ont. C.A., H.S. LaForme J.A., David Watt J.A., and S. Lederman J. (ad hoc), File No. CA C55652) Decision at 217 A.C.W.S. (3d) 969 was reversed. 225 A.C.W.S. (3d) 223. Real Property WATER AND WATERCOURSES Seasonal fluctuations did not prevent finding of navigability Application by property owners to clarify or determine title to bed of waterway traversing their lands. Applicants' lands were in City of Hamilton. Section 1 of Beds of Navigable Waters Act (Ont.), provided that beds of navigable waterways remained property of Crown. Act did not define navigable, but case law had developed applicable criteria. Waterway ran in easterly direction, passing first through applicant O.'s property, then other properties and then applicant E.O.. Original Crown patent did not contain any express grant of bed of watercourse. Respondent relied on Ministry's Land and Waters Specialist who visited location, studied maps and surveys. On first two visits, waterway was dry and overgrown and on third it was partially covered with snow and had modest flow. Surveys described it as small creek or brook but did not note depth. Expert opinion waterway was not navigable. Applicants' expert studied wetted depths and concluded waterway was navigable at least part of year from spring runoff and heavy rain. Applicants swore to personally canoeing down waterway and knowing others who did so as well. Longwww.lawtimesnews.com time resident deposed creek had been very useful body of water to people in area historically and was now used for canoeing. Application allowed. Waterway was navigable at some times of year based on photographs and small boat usage. Seasonal fluctuations did not prevent finding of navigability. Determination of navigability had to be made at time of Crown grant. Surveys suggested waterway was likely larger than it is today so it was probable it was navigable significant portions of year. As such, title to bed of stream remained with Crown. O'Donnell v. Ontario (Jan. 25, 2013, Ont. S.C.J., C.S. Glithero J., File No. 08-7665, 07-30823) 225 A.C.W.S. (3d) 255. ONTARIO CRIMINAL CASES Appeal NEW TRIAL Trial judge reopened prosecution's case on his own motion Appeal from conviction. Constable investigated driver at R.I.D.E. checkpoint and made demand for sample of breath into ASD. Driver provided driver's licence, with photo matching driver, and name of accused. Eventually accused provided samples into Intoxilyzer 8000C of blood alcohol concentration of 130 mls alcohol in 100 mls blood. Accused pleaded not guilty to driving "over 80". Throughout his evidence, constable never referred to accused by name or pointed him out in court as person he had arrested. After Crown closed its case, accused's counsel elected to call no evidence but pointed out his client had never been identified. Trial judge said Crown could reopen its case to identify accused, but then went on himself to ask officer if he saw accused in court. Officer indicated accused. Appeal allowed; new trial ordered. Crown never sought to reopen and played no role in calling additional evidence to supplement its case. Those steps were taken by trial judge, and real issue was whether his conduct gave rise to reasonable apprehension of bias. There was no allegation of actual bias. Manner in which trial judge responded to accused's submission that Crown had failed to prove fact essential to finding guilt would reasonably cause accused to consider trial judge had stepped away from position of neutrality and was endeavouring to assist prosecution. On his own motion, and without inviting submissions from either Crown or defence, trial judge reopened prosecution's case, called witness himself, adduced missing evidence, and found accused guilty. Conviction must be set aside. Accused sought acquittal on basis there was no evidence of identity. However, there was prima facie case that accused was person investigated. In absence of evidence to contrary, it would have been open to trial judge, based only on evidence introduced as part of Crown's case, to conclude accused was person investigated. R. v. Pepe (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-50000027-00AP) 105 W.C.B. (2d) 359. Trial judge took inadmissible evidence into account in assessing credibility Appeal from conviction. Accused was tried on two counts of assault, one count of threatening and one count of failing to comply with no-contact term of bail order. Complainant was accused's estranged wife. Trial judge acquitted accused on all counts save for count of failing to comply. In examination-inchief of complainant, Crown counsel introduced copies of documents from records of police in Karachi, Pakistan. First document was record of complainant's attendance at police station in Karachi to report her concern about potential of "mishap" befalling her at hands of accused. Her fear flowed from an assault she alleged accused had committed in Pakistan previously. Second document was record of complainant's report to Pakistan police in which she alleged that two days before, accused and two other men came to door of home where she was staying and threatened her with gun. At time of introduction of documents, it was unclear what use Crown proposed to make of them. Appeal allowed; new trial ordered. Reports complainant provided to police in Karachi were not admissible to support credibility of her allegations against accused. Trial judge was satisfied reports were true copies of police records, but that did not make them admissible. They were nothing more than prior consistent statements and presumptively inadmissible. Trial judge used complainant's prior statements to support her credibility in relation to allegation that accused threatened her with gun. This was not harmless error. Her testimony about that incident was only evidence accused contacted her on that date in contravention of his bail order. Credibility of complainant was very much in issue, so much that trial judge was not prepared to convict on basis of her evidence on three of four counts before him. Because trial judge took inadmissible evidence into account in finding complainant credible on only count on which accused was found guilty, conviction on that count could not stand. New trial ordered on failing to comply, with suggestion to Crown to consider public interest in proceeding further. R. v. Badar (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-0000107-00AP) 105 W.C.B. (2d) 358. LT

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