Law Times

Law Times • September 23, 2013 ployees and partners joined defendant. In August 2002, plaintiff was promoted from senior associate to manager. In September 2005, plaintiff was promoted to senior manager. In 2007, dispute arose over plaintiff 's expense claims. Plaintiff received reprimand and was put on probation. In February 2008, plaintiff received personal improvement plan ("PIP") letter that identified problems and defendant's expectations of plaintiff. PIP stated that failure to follow required protocols would result in immediate termination with cause. In June 2008, further anomalies were noticed in plaintiff 's expense claims. Defendant decided to terminate plaintiff 's employment with cause in July 2008. Plaintiff did not become fully employed until September 2009, but job did not work out. It was not until November 2010 that plaintiff became fully employed again. Judgment for plaintiff. Defendant had not proved that disputed expenses were inappropriate. There was no intent to conceal or mislead as to true nature of expenses. Plaintiff was given no opportunity to explain or respond to defendant's concerns. Conduct was not of same character as pre-PIP conduct. Given nature of June 2008 infractions, ultimate sanction of dismissal was not warranted. Other less drastic measures were available. Defendant failed to prove just cause for termination. Plaintiff 's work was highly specialized. He operated at highest level below partner. Plaintiff, aged 33, had worked for defendant for eight years. He had trouble finding other employment. Having regard to plaintiff 's age, length of service, senior management nature of role and highly specialized nature of work, including impact of circumstances on likelihood of finding new employment, appropriate notice period was ten months. Plaintiff was entitled to bonus of $15,015 and outstanding 1% of final client service matrix payments. Plaintiff 's conduct in searching for alternate employment was reasonable and he did not fail to mitigate damages. Plaintiff was not entitled to overtime pay, as true nature of plaintiff 's employment was supervisory or managerial. Tsakiris v. Deloitte & Touche LLP (Jun. 18, 2013, Ont. S.C.J., Penny J., File No. CV-09-373222) 229 A.C.W.S. (3d) 441. Family Law CHILD WELFARE Current attachment of children to foster family rather than mother Appeal by mother from order granting society's motion for summary judgment. Result of that order was that two children were made Crown wards with no access. Children were apprehended by police and society worker after police found mother passed out on couch with pot left on stove to burn. Children were initially placed in care of maternal grandparents but were subsequently placed in foster care Page 15 CASELAW after mother removed children without parents' consent. Mother exercised access two times per week. Court granted summary judgment on society's protection application without access with view to placing children for adoption. Appeal dismissed. Court was not convinced mother had effectively dealt with alcohol abuse and she had refused to take fingernail test. Mother had been involved in abusive relationship and evidence on appeal indicated that relationship was ongoing. Mother did not meet onus of establishing that ongoing access would be beneficial and meaningful to children and that such access would not impair children's opportunities for adoption. Current attachment of children was to foster family rather than mother. Children's Aid Society of Brant v. B. (J.) (Jun. 18, 2013, Ont. S.C.J., Milanetti J., File No. Brantford SCJ-F 12-452) 229 A.C.W.S. (3d) 451. and spousal support from wife in signing separation agreement. Husband lost job but had no chance of obtaining support from wife because of severance package. Husband's misrepresentation combined with wife's knowledge of terms of marriage contract induced wife to accept full waiver of spousal support. Wife agreed to provisions in marriage contract and separation agreement relating to spousal support only because of undue influence applied to wife by husband. Waiver was improvident in circumstances of parties' marriage. Inclusion of spousal support waiver in separation agreement was tainted by its derivation from marriage contract and husband's insistence on clause as condition of continuing marriage. Agreement did not reflect equitable sharing of economic consequences of marriage or its breakdown. Cuffe v. Desjardins (Jun. 11, 2013, Ont. S.C.J., J. Mackinnon J., File No. FC - 11-1234) 229 A.C.W.S. (3d) 491. DOMESTIC CONTRACTS Wife agreed to provisions only because of undue influence by husband Parties cohabited for three years and were married additional 15 years. Parties had one child. Parties signed marriage contract and separation agreement in terms favourable to husband. Spousal support was waived in marriage contract and separation agreement. Wife received legal advice before signing marriage contract that amount of equity in home should be verified, financial disclosure obtained and that full waiver of spousal support was not appropriate in event wife might remain home with children. Each party retained family law lawyer for separation agreement. Wife's lawyer advised property division was unconscionable and that it might be possible to have marriage contract set aside. Wife's lawyer advised separation agreement was unfair because it did not provide for child or spousal support. Wife's lawyer deleted words "without any fear, compulsion or influence" from certificate of independent legal advice before signing it. Wife sought to set aside contracts. Support waiver was set aside and balance of agreements was upheld. Wife accepted property provisions in marriage contract with legal advice. Wife was entitled to spousal support. Husband was ordered to pay $60,000 by way of lump sum spousal support. Husband was ordered to pay periodic spousal support of $1,800 per month for indefinite duration subject to variation in event of material change in circumstances. There was no intentional non-disclosure in connection with signing separation agreement. Error in schedule did not induce wife to sign separation agreement. Husband pressured wife into accepting full spousal release by threatening that recent marriage was off unless wife left clause unchanged. Wife was influenced by husband's representation to wife that husband was in position to seek child Fundamental flaw in negotiation process vitiated informed consent Parties had two children, aged 23 and 21. Wife wrote separation agreement while parties discussed issues at kitchen table. Husband prepared first draft of typed separation agreement using computer software. Typed first draft was virtually identical to final agreement. Parties signed separation agreement. Under agreement children were to reside with father in matrimonial home and wife had access. Parties had joint custody and wife was to pay child support in amount to be determined. Matrimonial home was to be transferred into father's name only. Wife was to receive R.R.S.P.s. Father was to assume responsibility for line of credit. Separation agreement did not set support. Wife signed off all rights to husband's pensions. Both parties fulfilled all obligation in agreement and received benefits according to its terms. At time of separation husband's income was $52,000 per year and wife's was $24,000. Husband's income in 2012 was $70,476. Wife's current income was $30,876. Wife remarried and household income was greater than that of husband. Separation date was determined. Portions of agreement were to be set aside because agreement was premised on mutual mistake. Husband did not fail to disclose asset or its value but husband was unaware that pension had value for Family Law Act (Ont.), equalization. Neither party was aware of pension's characterization as asset having value prior to retirement. Neither party entered agreement with accurate understanding and appreciation of ramifications. There was fundamental flaw in negotiation process that vitiated informed consent. Husband's retention of pension resulted in highly imbalanced agreement. Wife received less than one third of net assets retained by husband. Husband was to transfer to wife $80,126 from pension. Agreement was not brought about by duress or undue influence. www.lawtimesnews.com Agreement was not in substantial compliance with Act because agreement failed to consider economic disadvantages or advantages to spouse arising from marriage or its breakdown or apportion between spouses any financial consequences arising from care of children. Based on lack of need spousal support was to be $2 per month for indefinite duration. Cramer v. Cramer (Jun. 17, 2013, Ont. S.C.J., Healey J., File No. FC-10-490-01) 229 A.C.W.S. (3d) 495. Labour Relations REMEDIES Responsibility for paying benefits fell to defendant as party to collective agreement Defendant challenged jurisdiction of court on grounds that plaintiff's claim was covered by collective agreement and must be dealt with by way of binding arbitration. Plaintiff was employee of defendant and was laid off in January 2009. He was also member of union. There was no evidence that union's bargaining rights had been terminated or abandoned. Only issue was whether essential character of dispute between parties was outside terms of collective agreement. In his action, plaintiff sought long-term disability benefits from employer and its insurer. Action dismissed. Even though defendant had closed its operations, it was still responsible for rights that accrued to party during life of collective agreement. Responsibility for paying disability benefits fell to defendant as party to collective agreement. Plaintiff's claim for disability benefits was directly against defendant, and his entitlement must rise or fall with adjudicator's interpretation of collective agreement. Outside of collective agreement, there was simply no question of any entitlement to long-term disability benefits. Torres v. SSQ Life Insurance Co. (Jun. 10, 2013, Ont. S.C.J., E.M. Morgan J., File No. CV-11433247) 229 A.C.W.S. (3d) 556. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Aspects of officers' evidence did not accord with common sense Application by accused to exclude evidence against him because his rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Evidence consisted of loaded gun. One evening accused left his girlfriend's apartment and walked out of building, across parking lot, to her car. Before he got inside he opened trunk. Accused said he was looking for his child's hat in trunk and he did not put anything in it. Two police officers testified that they saw him put into trunk what they concluded was handgun. Officers stopped accused after he left parking lot, while he talked on his cell phone, searched trunk and found gun. Accused was handcuffed before gun was found but he was not told he was under arrest. When gun was discovered accused was forced to ground and he was told he was under arrest. Accused was not told what charge was until he was at police station. Accused said neither he nor his girlfriend owned gun and car had been locked. Application allowed and evidence was excluded. There were serious concerns about officers' reliability and credibility and aspects of their evidence did not accord with common sense. Regarding s. 8, Crown failed to prove that search was reasonable. Officers' testimony did not prove that search was reasonable. There were valid grounds under Highway Traffic Act (Ont.) to stop accused, but not to search his car, because he was talking on his cell phone as he drove away. However, that was not why he was stopped. Accused's detention and being handcuffed before gun was found was unlawful. Stop was arbitrary and s. 9 was breached. Evidence was not admitted for to do so would bring administration of justice into disrepute. R. v. Sterling-Debney (Jul. 5, 2013, Ont. S.C.J., Durno J., File No. CR-12-2571-00) 108 W.C.B. (2d) 19. Evidence CREDIBILITY No doubt that accused's exercise of authority vitiated complainant's consent Accused appealed conviction for assault with weapon and sexual assault. Accused argued trial judge erred in assessment of complainant's credibility and reliability, erred in holding that Crown had proved that exercise of his authority vitiated complainant's consent, and that trial judge's reasons for rejecting his evidence were conclusory and inadequate. Appeal dismissed. Trial judge was alive to inconsistencies between complainant's evidence and evidence of accused's daughter. It was open to trial judge to find that inconsistencies were overshadowed by consistencies in evidence, especially evidence that accused exercised reign of power, fear, and terror in household. Trial judge did not expressly refer to reliability of complainant's evidence, as material acts giving rise to those charges were admitted by accused. Although trial judge's reasons were brief, findings that accused was in position of authority and used that authority to force complainant to comply with his demands were fully supported by evidence. There was no doubt on record that accused's exercise of authority vitiated complainant's consent. Trial judge was entirely justified in disbelieving accused's evidence, as case against him was overwhelming. R. v. C. (J.) (Jul. 18, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C55212) 108 W.C.B. (2d) 82. LT

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