Law Times

Law Times • February 24, 2014 Page 15 www.lawtimesnews.com made anti-Semitic remarks about owners of defendant in response to defendant's decision not to pro- vide employees with paid holiday on Family Day. Plaintiff denied making remarks. Every person from plaintiff 's shi who testified said they did not hear plaintiff make anti-Semitic remarks. Ac- tion allowed. Plaintiff was entitled to reasonable notice of 12 months. Claim for Wallace damages could not succeed. ere was no evi- dence of mental distress suffered by plaintiff. ere was no evidence that would support claim for ag- gravated or punitive damages and claims were dismissed. Defendant was unable to prove there was just cause for termination with- out notice. Defendant was unable to prove that plaintiff had angry outburst in front of subordinates during which he made anti-Se- mitic remarks. It was unwise for defendant to terminate plaintiff 's employment without conduct- ing independent investigation to assess validity of alleged miscon- duct. Defendant now had great difficulty assembling evidence to prove alleged misconduct. Plain- tiff 's request to apologize to own- ers was not admission because plaintiff was never told what he was alleged to have done. Ludchen v. Stelcrete Industries Ltd. (Dec. 5, 2013, Ont. S.C.J., J.R. Henderson J., File No. Welland SR9647/08) 234 A.C.W.S. (3d) 656. Environmental Law ENFORCEMENT Province had already commenced remediation work Land owned by companies was contaminated and Ontario Min- istry of Environment ("MOE") issued remediation orders against companies pursuant to Environ- mental Protection Act (Ont.). Companies subsequently ob- tained protection under Compa- nies' Creditors Arrangement Act (Can.) ("CCAA"), and all rights and remedies against them were stayed. MOE brought motion for declaration that remediation or- ders were not subject to stay of pro- ceedings under CCAA. Motion was dismissed. MOE appealed. Appeal dismissed. Ongoing en- vironmental remediation obliga- tions may be reduced to monetary claims that can be compromised in CCAA proceedings where province has performed remedia- tion work and advances claim for reimbursement, or where obliga- tion is contingent or future claim because it was "sufficiently certain" that province would do work and then seek reimbursement. It was sufficiently certain that MOE would remediate contaminated land as it had already commenced remediation work. Fact that MOE had commenced remediation work established that MOE orders were, in substance, claims prov- able in insolvency. Northstar Aerospace Inc., Re (Oct. 3, 2013, Ont. C.A., S.T. Goudge J.A., J.C. MacPherson J.A., and R.G. Juriansz J.A., File No. CA C56518) Decision at 218 A.C.W.S. (3d) 490 was affirmed. 234 A.C.W.S. (3d) 642. Injunctions INTERLOCUTORY RELIEF Tenant obligated to take up its tenancy in replacement premises Tenant lease premises from land- lord in which it operated yoga stu- dio. Since early 2013, parties have been engaged in litigation regard- ing various aspects of tenancy and another tenancy located in nearby building. Landlord, through dif- ferent company, sought to lease replacement premises to tenant so that could obtain possession of premises as part of development plans. On July 29, 2013, land- lord locked tenant out of prem- ises. Landlord claimed tenant had signed surrender of lease which, by its express terms required ten- ant to vacate and yield up premises to landlord as of June 30, 2012. In addition, landlord stated tenant was in default of lease because it had insufficient number of fire exits and had made unauthorized renovations to premises. Tenant moved immediately for interlocu- tory injunction and was granted possession of premises pending full hearing on motion. Tenant sought possession of premises un- til trial of main action. Motion dis- missed. Tenant had signed lease for replacement premises in Janu- ary 2012, and subsequently signed estoppel certificate. Tenant later changed mind and purported to rescind surrender of lease and lease on replacement premises. Motion judge found tenant was obligated to take up its tenancy in replacement premises. ere was therefore no serious issue to be tried regarding surrender of lease. Tenant was obliged to yield up premises. Even if there was serious issue to be tried, injunction would not have been granted because tenant did not suffer irreparable harm. Dispute between parties was essentially financial. Tenant was to vacate premises immedi- ately. 2454 Bloor Street West Ltd. v. 2107733 Ontario Inc. (Oct. 18, 2013, Ont. S.C.J., E.M. Morgan J., File No. CV-13-473944) 234 A.C.W.S. (3d) 735. ONTARIO CRIMINAL DECISIONS Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Minimum sentence grossly disproportionate in hypothetical circumstance of responsible gun owner Accused pleaded guilty to pos- sessing loaded semi-automatic handgun contrary to s. 95. Police recovered handgun thrown on ground by accused while inves- tigating threatening situation at community centre. Trial judge not finding accused was involved in threats, and only that he came into possession at some point before discarding it. Trial judge holding accused was youthful first offender with potential and community support. Crown proceeding by indictment and accused challenging mandatory minimum three-year sentence for violating ss. 7, 12, and 15 of Charter. Trial judge dismissing Charter claims, holding upper reformatory sentence appro- priate even absent mandatory minimum. Accused appealing 40 month sentence imposed. Sentence affirmed but three year mandatory minimum held to be of no force and effect for violat- ing s. 12. Section 95 criminalized broad range of conduct from "true crime" to "regulatory" of- fences amounting to knowing breach of term of licence by oth- erwise responsible gun owner. ree year minimum not cruel and unusual for true crime of- fences given scourge of gun re- lated violence prompting legisla- tive reform. Minimum sentence not grossly disproportionate in case of accused who would have received close to three year sen- tence absent mandatory pen- alty. Minimum sentence grossly disproportionate in reasonable hypothetical circumstance of re- sponsible gun owner who know- ingly safely stored firearm in place not permitted by licence. Section one could not be applied to save breach found to amount to intolerable, grossly dispropor- tionate sentence. R. v. Nur (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C54701) 110 W.C.B. (2d) 479. Mitigating factors found by trial judge speculative and not supported by evidence Police discovering accused in apartment with loaded semi-au- tomatic while executing warrant. Officers testifying accused found with gun while seated on couch with laptop. Accused testifying he had no gun. Trial judge rejecting accused's testimony and convict- ing him of possession of loaded prohibited firearm contrary to s. 95. Accused challenging consti- tutionality of three year manda- tory minimum sentence pursu- ant to ss. 7 and 12 of Charter. Trial judge making factual find- ings on sentencing that accused possessed gun only briefly, while alone and for purpose of posting boastful internet photographs. Trial judge holding three year minimum sentence was cruel and unusual punishment con- trary to s. 12 given mitigating fac- tors found on sentencing. Crown appealing ruling striking down three year minimum sentence and appealing one year condi- tional sentence imposed. Crown's appeal allowed and sentence held to be manifestly unfit. Minimum sentence was not cruel and un- usual punishment in accused's case given gravity of offence. Mitigating factors found by trial judge were speculative and not supported by evidence. Accused's behaviour was wanton and dan- gerous and three year sentence, though excessive, would not be grossly disproportionate. ree year mandatory minimum vio- lated s. 12 of Charter in reason- able hypothetical circumstances and was of no force and effect. R. v. Smickle (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C55082) Decision at 100 W.C.B. (2d) 141 was reversed. 110 W.C.B. (2d) 401. FEDERAL COURT OF APPEAL Civil Procedure COSTS Not immutable principle of law that no costs awarded where success divided Appeal from judgment award- ing respondents costs of $45,000. Judgment disposed of application under Patented Medicines (No- tice of Compliance) Regulations (Can.), for order prohibiting ap- pellant from selling certain drug until expiry of two patents. Appli- cation judge awarded respondents 50% of costs claimed. Appeal dismissed. Decision on costs was discretionary and would not be disturbed on appeal unless deci- sion was based on error in prin- ciple or was plainly wrong. Where success was divided, it was not im- mutable principle of law that no costs would be awarded. Appli- cation judge was clearly aware of practical result of proceeding and remedies sought. Mylan Pharmaceuticals ULC v. Bristol-Myers Squibb Canada Co. (Oct. 1, 2013, F.C.A., K. Sharlow J.A., Mainville J.A., and Near J.A., File No. A-74-13) 234 A.C.W.S. (3d) 560. FEDERAL COURT Aboriginal Peoples NATURAL RESOURCES Court could not substitute its own assessment as to what was in best interests of band Parties were engaged in complex litigation. Applicants alleged vari- ous breaches of trust or fiduciary duties by Canada related to Cana- da's management of mineral rights associated with applicants' reserve lands, in particular, management of oil and gas leases on land and resulting royalties. Applicants brought motion seeking transfer of current and future money that represented royalties from oil and gas leases on applicants' reserve lands and interest earned on roy- alties, which were held by Canada in trust for or for benefit of First Nation. Subgroups of First Nation, who were separately recognized as bands under Indian Act (Can.), claimed they had right to insist on transfer of per capita share of funds. Minister of Aboriginal Af- fairs and Northern Development made decision not to effect trans- fer of money in accordance with terms proposed by applicants. Motion dismissed. Applicants had not sought judicial review of Min- ister's decision but requested that court accept and endorse terms of transfer they proposed and order Minister to comply with them. However, applicants had not es- tablished legal basis upon which court could accept and endorse their terms of transfer and order Minister to comply, irrespective of powers granted to Minister under Act. ere was no basis to usurp Minister's exercise of dis- cretion under s. 64(1)(k) of Act. Court could not disregard pow- ers under Act that Parliament had granted to Minister and substitute its own assessment as to what was in best interests of band. No con- vincing legal authority or principle had been provided to justify such substitution. Applicants were es- sentially seeking order in nature of mandamus, which court did not have jurisdiction to grant in context of motion. Concerns of Canada could not be described as mere impediments. Bearspaw Band v. Canada (Sep. 25, 2013, F.C., James Russell J., File No. T-2344-93) 234 A.C.W.S. (3d) 531. Civil Procedure PLEADINGS Plaintiff 's approach of instituting two actions raised possibility of contradictory judgments Plaintiff manufactured ice cider named "Domaine Pinnacle". De- fendants distributed flavoured vodkas called "Pinnacle". Plaintiff filed motion to institute proceed- ings in Quebec Superior Court, seeking to obtain permanent, interlocutory and interim injunc- tion against defendant B. Inc. to prevent commercialization of vodkas and other Pinnacle prod- ucts in Quebec market. Plaintiff also instituted proceedings in Federal Court against defendants alleging unfair competition and trademark infringement. Defen- dants counterclaimed for dec- laration that their mark did not infringe plaintiff 's trademark. De- fendants indicated their intention to request stay of proceedings in Quebec Superior Court, on basis that there was bifurcation of pro- ceedings in Federal Court as far as Quebec was concerned and of lis pendens and forum non conve- niens. Plaintiff filed unsuccessful motion to amend statement of claim to explicitly exclude Que- bec from scope of Federal Court action. Prothonotary found that amendment did not seek to deter- mine real questions in controversy between parties and did not seek to serve interests of justice. Plain- tiff appealed. Appeal dismissed. Plaintiff 's approach of instituting two actions in two separate juris- dictions concurrently raised not only issue of multiplicity of pro- ceedings but also real possibility of contradictory judgments. Court was not satisfied that impugned order was clearly wrong and that exercise of discretion by protho- notary was based upon wrong principle or misapprehension of facts. Domaines Pinnacle Inc. v. Beam Inc. (Jul. 30, 2013, F.C., Richard Boivin J., File No. T-290-13) 234 A.C.W.S. (3d) 605. LT CASELAW

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