Law Times

www.lawtimesnews.com Page 14 March 10, 2008 / Law TiMes SUPREME COURT OF CANADA Contracts PERFORMANCE AND BREACH Joint venture agreement not breached M.I., P.J. and L.M., via their corporations, entered into joint venture agreement to purchase, develop and sell property owned by Air Products. Part of purchase price secured by note and trust deed in favour of Air Products. Joint venture agreement requiring each partner to pay proportionate share of sum demanded by Air Products to be repaid. P.J. arrang- ing for one of his companies, Prombank Investments, a non- party to the joint venture agree- ment, to purchase note. Parties not wishing to abide by default provisions in agreement. L.M. reaching agreement with P.J. but M.I. not and taking no steps to raise money required. Prombank Investments foreclosed. M.I. and company losing investment. M.I. and his company unsuccessfully suing P.J., L.M. and their com- panies for breach of joint venture agreement. Obligations under joint venture agreement remain- ing in effect despite fact parties ignored it. Parties not reaching new agreement to terminate joint venture agreement and not estab- lished that parties elected to treat breach as ending agreement. Joint venture agreement not breached. Prombank Investments assuming position of Air Products as credi- tor and foreclosure simply exercise of legal rights. MI and his compa- ny not entitled to return of invest- ment. Funds formally forfeited. Jedfro Investments (U.S.A.) Ltd. v. Jacyk Estate (Dec. 20, 2007, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Charron and Rothstein JJ., File No. 31561) Appeal from 148 A.C.W.S. (3d) 239; 80 O.R. (3d) 533; 18 B.L.R. (4th) 8; 210 O.A.C. 153 dis- missed. Order No. 007/354/005 (20 pp.). Family Law DOMESTIC CONTRACTS Agreement to provide "get" was valid and binding Parties obtained civil divorce. Despite agreement that parties obtain Jewish divorce, or "get", husband refused to provide neces- sary consent for 15 years. Wife successfully claimed damages for breach of agreement. Agreement to provide get met requirements under Civil Code of Quebec to constitute valid and binding agreement. Husband not entitled to immunity by invoking freedom of religion under s. 3 of Charter of human rights and freedoms (Que.). Bruker v. Marcovitz (Dec. 14, 2007, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Fish, Abella, and Rothstein JJ., dissent- ing - Deschamps and Charron JJ., File No. 31212) Appeal from 142 A.C.W.S. (3d) 432; 259 D.L.R. (4th) 55; [2005] R.J.Q. 2482; 36 C.C.L.T. (3d) 14; 31 R.F.L. (6th) 265 allowed. Order No. 007/351/019 (87 pp.). FEDERAL COURT OF APPEAL Aboriginal Peoples CROWN RELATIONSHIP Finding of Charter breach was premature Applications judge was premature in finding that Human Resources and Skills Development Canada's entering into single Aboriginal Human Resources Development Agreement in Prince Edward Island was unjustified violation of Canadian Charter of Rights and Freedoms equality rights of respondents, based on their status as off-reserve aboriginal people of Prince Edward Island. There was no evidence that any of respon- dents suffered any disadvantage they claimed. Respondents were seeking remedy for dispute that did not exist. Gallant v. Canada (Attorney General) (Dec. 5, 2007, F.C.A., Desjardins, Noel and Trudel JJ.A., File No. A-69-07; A-71-07) Appeal from 155 A.C.W.S. (3d) 1; [2007] 2 C.N.L.R. 167; 151 C.R.R. (2d) 116 allowed. Order No. 008/009/116 (8 pp.). ONTARIO CRIMINAL CASES Charter Of Rights RIGHT TO COUNSEL Accused not entitled to insist that he make phone call himself Accused alleged his right to counsel was violated when he was not able to reach counsel of choice. Accused was detained on impaired driving charges. Officer made attempts to reach counsel of choice but was not successful. Officer offered to call on accused's behalf someone who might know solicitor's telephone number. Accused did not have right to insist he make the call himself. Motion was dismissed. R. v. Lavallee (Jan. 17, 2008, Ont. C.J., Nicholas J.) Order No. 008/028/077 (10 pp.). Evidence PRODUCTION Accused not entitled to information concerning charges against baggage handlers Accused were charged with import- ing hash oil after return flight from Jamaica. Accused sought informa- tion concerning whether or not there were incidences of baggage handlers in airport charged with drug smuggling. There was no evidence that airport employees were suspended or charged at rel- evant time with drug smuggling. Newspaper articles presented by defence deal with different sce- narios such as drugs concealed on planes. It would take thou- sands of person-hours to gather information sought by accused. Application was dismissed. R. v. Dykstra (Nov. 21, 2007, Ont. S.C.J., Baltman J., File No. CR-06-598) Order No. 008/028/072 (16 pp.). FEDERAL COURT Employment WRONGFUL DISMISSAL Evidence established parties had employer-employee relationship Respondent employed applicant. There was no written contract that was agreed on between parties. Respondent terminated applicant's employment citing budgetary restrictions as reason. Respondent argued applicant was independent contractor. Adjudicator dismissed applicant's complaint. Applicant exclusively worked for 60 hours per week. Applicant's activities were performed for benefit of respondent. Respondent provided applicant with all tools neces- sary. Respondent paid applicant's expenses. Applicant was provid- ed with respondent's letterhead. Application for judicial review was allowed. Respondent employed applicant according to contract of employment. Relationship was one of subordination and was employer-employee relationship. Evidence was insufficient to deter- mine if applicant's dismissal fell within s. 242(3.1)(a) of Canada Labour Code. Respondent was required to compensate applicant pursuance to ss. 230 and 235 of Code. Widrig v. Regroupement Mamit Innuat Inc. (Nov. 22, 2007, F.C., Shore J., File No. T-810-06) Order No. 007/344/055 (26 pp.). Agency OBLIGATIONS OF PRINCIPAL No error in determination on vesting of commissions on sale of life insurance policies W. selling life insurance as agent for Manulife and predeces- sors, North American Life and Monarch Life starting in 1967. In 1991 agreement changed to pro- vide that W.'s corporation, Ward Inc., would receive "5% lifetime renewals or service fees on their existing business which was past the commission-paying period". Vesting clause providing for vest- ing of individual renewal commis- sions. W. began receiving commis- sions on policies renewed from 1967 onward. Agreement termi- nated in 1995 and replaced with contract silent as to whether com- missions vested. North American Life merging with Manulife in 1996 and agency agreement ter- minated. After receiving assuranc- es he would be "grandfathered", W. causing Ward Inc. to enter non-exclusive Producer's agree- ment. Trial judge not erring in finding commissions vested from 1967. Producer's agreement had to be viewed in context. Ward v. Manufacturers Life Insurance Co. (Dec. 14, 2007, Ont. C.A., Weiler, Rosenberg and Rouleau JJ.A., File No. C45619) Order No. 007/351/152 (17 pp.). Appeal STANDING No procedural unfairness in dismissal of motion for standing Applicants resided close to property of respondent. Toronto and Region Conservation Authority refused respondent's application for per- mit for development. Respondent appealed decision. Commissioner dismissed applicant's motion for order granting applicants status as parties to appeal. Application for judicial review was dismissed. There was no procedural unfair- ness. Commissioner properly con- cluded applicants sought to pre- serve amenities for privately held interests that did not fall within scope and jurisdiction of appeal. Decision to hold hearing de novo on appeal did not constitute proce- dural fairness. Commissioner dealt with each issue raised by applicants and concluded applicants were of no assistance in appeal. McFadyen v. Ontario (Mining and Lands Commissioner) (Dec. 13, 2007, Ont. Div. Ct., Carnwath, Greer and Spiegel JJ., File No. 153/07) Order No. 007/351/110 (13 pp.). Bankruptcy And Insolvency CREDITORS Assignment in bankruptcy did not take precedence over second mortgage Second respondent obtained judg- ment in 1995 and filed writ of exe- cution. Debtor made assignment in bankruptcy. First respondent became holder of second mort- gage in 2005. Money was paid into court pending determina- tion of priority between first and second respondents. First respon- dent brought motion for order directing fund be paid out to first respondent. Motion was allowed. Bankruptcy effectively terminated execution process. Second respon- dent became unsecured creditor and lost priority over subsequent creditor. Assignment in bankrupt- cy did not take precedence over first respondent's second mort- gage. James Hunter and Associates Inc. v. Citifinancial Canada Inc. (Dec. 10, 2007, Ont.S.C.J., Gauthier J., File No. A-11113/06) Order No. 008/008/071 (5 pp.). Civil Procedure CLASS ACTIONS Action arising from presence of asbestos in subway station not certified Action concerned alleged behav- iour of TTC in permitting release of airborne asbestos fibres, dust and debris, thereby contaminat- ing atmosphere at Sheppard sub- way frequented by workers and commuters during demolition activities over two-year period. Appellants sought to represent all workers at Sheppard subway sta- tion, all commuters who passed through subway station and all persons who came in contact with those person in defined period of approximately two years. Chambers judge did not err in refusing to certify appellants' action as class action. Chambers judge was entitled to conclude, as she did, that class action was not preferable procedure for advance- ment of action. Defazio v. Ontario (Ministry of Labour) (Dec. 24, 2007, Ont. Div. Ct., Carnwath, Pierce and Hackland JJ., File No. 02-CV-224966CP) Appeal from 156 A.C.W.S. (3d) 24; 38 C.P.C. (6th) 223 dismissed. Order No. 008/008/057 (7 pp.). TRIAL Not in interests of justice to trans- fer proceedings from London to Toronto Proposed class action sought damages for alleged breaches of Competition Act (Can.), com- Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. COURT DECISIONS *Page 1-16.indd 14 7/18/08 12:49:49 PM

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