Law Times

www.lawtimesnews.com Law Times / march 17/24, 2008 Page 17 ONTARIO CIVIL CASES Civil Procedure COSTS Costs assessed in plaintiff 's successful breach of employment contract action Determination of plaintiff 's costs following granting of judgment for plaintiff after eleven-day trial. Plaintiff awarded $413,000 for breach of employment con- tract and $810,000 for failure to redeem preference shares and $324,000 for failure to pay annu- al dividends of preference shares. Plaintiffs and defendants had made offers to settle which court concluded were offers made in compliance of Rule 49. Plaintiff was completely successful on both aspects of claim and in defence of defendant's counterclaim. Plaintiff entitled to partial indemnity costs to date of offer and substantial indemnity costs afterwards total- ing $282,980. Case was not overly complex factually or legally. Issues were important to both parties. Defendants aggressively defended claim and pursued counterclaim and must have known that plain- tiff was incurring significant legal expense and if defendants unsuc- cessful they would be paying sig- nificant amount in costs. Case was well prepared and efficiently presented by both sides. If judges are to demand thorough prepara- tion and high quality presenta- tion they must also be prepared to indemnify successful parties who retain counsel to achieve that desirable goal. Plaintiff was therefore entitled to be indemni- fied in significant amount for his counsels' preparation for trial and presentation of evidence at trial. Wells v. Conestoga Meat Packers Ltd. (Dec. 11, 2007, Ont.S.C.J., Taylor J., File No. C-282/03) Order No. 008/008/042 (7 pp.). DISCOVERY Settlement privilege applied to documents sought by defendant Motion by defendant for pro- duction of settlement particulars, including amount of damages from motor vehicle accident in which plaintiff had been involved prior to accident with defendant. Defendant contended that par- ticulars of settlement for prior accident including settlement documentation would provide indicator of extent of injuries aris- ing out of previous accident and as such assisted in determination of whether there may be overlap in damages. Motion dismissed. Privilege applicable to settlement applied and concern advanced about double recovery would be addressed and dealt with on evi- dence of health and economic matters to be introduced at trial. Chappel v. Dysko (Jan. 4, 2008, Ont.S.C.J., Browne J., File No. 47451) Order No. 008/010/075 (7 pp.). Contracts PERFORMANCE AND BREACH Plaintiff breached implied non-solicitation covenant Plaintiff and defendant were machine shops. Plaintiff brought action against defendants for failing to pay three invoices. Defendant admitted that it owed plaintiff amount of invoices but wished to counterclaim against plaintiff for $14,000 for loss of business resulting from breach of alleged express term of oral contract, i.e. that plaintiff would keep in confidence name of defendant's customer, W., whose work defendant had sub-con- tracted to plaintiff. Defendant alleged that plaintiff successfully solicited W.'s business. W. subse- quently informed defendant that it no longer wished to do business with it. Judgment for plaintiff for $3,691. There was not an express non-solicitation covenant between the parties however there was an implied one. Defendant established on prima facie basis that plaintiff did attempt to gain W.'s machining business by direct involvement with that company and plaintiff did not establish defence. On balance of prob- abilities plaintiff did break non- solicitation covenant. It was just and agreeable to determine defen- dant's loss as equivalent to plain- tiff 's claim, i.e $3,691. J.D. Manufacturing Ltd. v. Samtech Engineering Inc. (Dec. 5, 2007, Ont.S.C.J. Small Claims Court, O'Dea Mungovan D.J., File No. SC-06-00038391-0000) Order No. 008/010/072 (9 pp.). Corporations OPPRESSION Delay in valuation of shares constituted oppression Application by estate trustee pursuant to s. 248 of Business Corporations Act (Ont.), for order appointing K. to valuate shares of W. owned by applicant estate. S. and respondents were equal shareholders in W. corpo- ration. Shareholder agreement gave surviving shareholders right to purchase shares of deceased shareholder for fair market value. S. died July 30, 2007 and respon- dents delivered notice on August 23, 2007 exercising right under shareholder agreement to pur- chase shares owned by estate of S.. Shareholder agreement provided that completion of share purchase was to take place no later than six months following date of death. Respondents retained accounting firm, H., to review credit card expenses S. put through com- pany which respondents alleged were personal expenses. More than five months went by and there was no agreement on a valuator and valuation of shares. Applicant objected to H. report on basis it was not objective and work ought to have been done by independent appointed inspec- tor. Order issued appointing K. to value shares. Applicant was minority shareholder and was being oppressed by respondents who were majority shareholders. There was inequality of bargain- ing power and respondents had demonstrated level of unfairness in their obligation to act equita- bly and impartially in exercise of power and authority. Respondents had unreasonably delayed valua- tion of shares which could have proceeded concurrently with H's review of alleged improprieties. While it may have been pre- rogative of respondents to review expenses this did not constitute sufficient cause to delay valuation of shares. Lack of co-operation and delay on part of respondents caused prejudice and unfair dis- regard of interest of applicant. In circumstances relief under s. 248(3) of Business Corporations Act was justified. Stahlke Estate v. Wheatley (Jan. 4, 2008, Ont.S.C.J., Shaughnessy J., File No. 52767/07) Order No. 008/009/081 (7 pp.). Employment WRONGFUL DISMISSAL No evidence of misconduct or incompetence by plaintiff Vice-Chair Plaintiff was dismissed from his position as Vice-Chair of defen- dant, position he had held under terms of four-year fixed-term employment contract. Prior to that, plaintiff had been President and CEO of defendant, pursuant to five-year fixed-term employ- ment contract. "Business judg- ment rule" applied to decisions made by plaintiff in carrying out his duties. There was no evi- dence of either misconduct or incompetence by plaintiff. No breach of fiduciary duty or other duty of care was shown. No facts existed to have supported plain- tiff 's dismissal for cause. Further, in agreeing to second contract, defendant condoned plaintiff 's performance under first contract, including his prior conduct and decisions. As such, defendant was estopped from terminating plain- tiff 's employment for conduct of which it was aware prior to con- donation. Plaintiff was entitled to balance owing under second contract. Puhl v. Katz Group Canada Ltd. (Jan. 11, 2008, Ont.S.C.J., Tausendfreund J., File No. 45649) Order No. 008/015/080 (31 pp.). Plaintiff security officer resigned from employment and was not constructively dismissed Plaintiff worked as security officer at defendant's P. site for 16 years. When P. site's new owner changed security companies, defendant offered him security position at DHL site at reduced hourly rate. Employment offered to plain- tiff was reasonable alternative in terms of nature of his duties and shift hours being offered. Wage differential of $11.85 to $10.45 per hour, in and of itself, did not give rise to maintainable claim of constructive dismissal. Defendant offered to plaintiff only available and suitable position for him. Plaintiff was not constructively dismissed. Plaintiff resigned from his employment when he advised defendant that he would not return to DHL following first day of his training. Action dismissed. Crouch v. Securitas Canada (Jan. 9, 2008, Ont.S.C.J., Daley J., File No. 05-CV-007300- SR) Order No. 008/015/060 (23 pp.). Family Law CHILD WELFARE Crown wardship of developmen- tally delayed child not ordered Applicant sought order of Crown wardship for developmentally delayed two-and-a-half-year-old child, who was apprehended at hospital two days after birth and had been in care ever since. Parents sought return of their child. Child continued to be in need of protection. Society failed to establish it would be in best interests of child to be made Crown ward. While it was undisputed that child had many problems and limitations, appli- cant had significantly overstated parent's responsibility for creat- ing or compounding those dif- ficulties. At same time, applicant had underestimated parents', par- ticularly mother's, ability to meet child's current and future needs. Fairly strict terms of supervision were appropriate to ensure child's best interests, together with com- pliance and co-operation by par- ents. Child's reintegration into parent's home needed to be care- fully structured. Catholic Children's Aid Society of Hamilton v. H. (L.) (Jan. 11, 2008, Ont. S.C.J. (Fam. Ct.), Pazaratz J., File No. C-1271-05) Order No. 008/015/136 (59 pp.). COSTS Leave to appeal granted on question of principles for finding of bad faith under Rule 24(8) of Family Law Rules Application for leave to appeal order for costs granted on full indemnity basis for failure to pro- vide disclosure in family prop- erty law matter. Order based on finding that applicant had acted in bad faith by failing to make complete, frank and early dis- closure, being deliberately eva- sive in responding to requests, 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 Effective Written Advocacy Compiled by: The Honourable Justice Thomas A. Cromwell with contributions by top practitioners, writing experts and experienced judges This practical handbook provides extensive and indispensable advice on how to prepare effective and persuasive factums and written arguments. Practical tips and illustrations are included. Commentary and annotations identify problems and provide solutions. No other resource provides this kind of expertise and practical guidance under one cover regarding written advocacy. LT0317 www.canadalawbook.ca Cromwell. 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