Law Times

Law Times • sepTember 8, 2014 Page 15 www.lawtimesnews.com in unreasonable initial and re- consideration decisions. Board breached duty of procedural fairness by refusing to consider recording of union members' meeting submitted by applicant and by failing to hold hearing. Recording was clearly relevant to whether applicant attended meeting; union did not object to production. Board acknowl- edged it had contradictory evi- dence regarding applicant's at- tendance and should have held hearing to resolve conf lict. Cadieux and ATU, Local 1415, Re (Mar. 10, 2014, F.C.A., Jo- hanne Gauthier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-447- 12, A-118-13) 239 A.C.W.S. (3d) 1011. Appeal PROCEDURE Filing fee was over five weeks' pay for inmate appellant Appellant was self-represented inmate who had been in jail for 21 years. Appellant's pay in jail was $52.50 per two weeks, which was subject to deduc- tions. Appellant could no lon- ger afford to call family as reg- ularly due to new deductions and family did not have car to visit him in jail. Appellant had borrowed money to pay for car- diac care and university educa- tion for his children. Appellant brought motion to waive $50 filing fee for filing notice of ap- peal. Motion granted. Court had jurisdiction to grant relief sought. Two competing princi- ples considered were right of ac- cess to court and need to charge fees for services rendered. Only in special circumstances could court depart from requirement to pay fees. Adverse exercise of discretion would foreclose ac- cess to courts by whole class of inmate. Appellant had been declared vexatious litigant but he had sought leave to com- mence proceedings. Appellant remained entitled to access to courts. Filing fee was over five weeks' net pay for appellant before he tended to other sig- nificant expenses. Court exer- cised its discretion in favour of granting fee waiver. Fabrikant v. Canada (Apr. 2, 2014, F.C.A., David Stratas J.A., File No. A-338-13) 239 A.C.W.S. (3d) 839. FEDERAL COURT Human Rights Legislation JUDICIAL REVIEW Complaint was vexatious because it had already been appropriately dealt with Applicant began full-time em- ployment with respondent em- ployer in 1997, and he remained employed until 2009, when he was terminated for time theft. Labour arbitrator upheld appli- cant's termination after griev- ance arbitration hearing. Ap- plicant did not allege discrimi- nation at arbitration proceed- ings. Applicant obtained psy- chiatric report that he claimed established he had disability at time of his termination. Appli- cant requested that employer reinstate him based on psy- chiatric report, but employer refused. Applicant bought hu- man rights complaint alleging discrimination in employment by employer on prohibited grounds of race, colour, eth- nic origin and disability. Hu- man Rights Commission ad- vised applicant that complaint of discriminatory acts was not linked to any prohibited ground of discrimination and closed file. Arbitrator agreed to reopen applicant's grievance of his termination, but upheld ter- mination. Applicant requested commission reopen complaint. Commission issued report that recommended applicant's com- plaint be dismissed pursuant to s. 41(1)(d) and (e) of Canadian Human Rights Act. Commis- sion decided not to deal with applicant's complaint on ba- sis that it was filed out of time and was vexatious. Applicant applied for judicial review of commission's decision. Ap- plication dismissed. Applicant was aware of conclusions and recommendations in report and was aware of case he had to meet. Applicant made exten- sive submissions in response to report. Commission did not breach applicant's right to pro- cedural fairness. Commission's decision with respect to time- liness was reasonable. Com- mission's reasons did not leave applicant with impression that it did not consider his allega- tions before it rejected them. Commission's decision that complaint was vexatious was reasonable. Notion of vexatious complaint included complaints that were res judicata, abuse of process, collateral attacks or barred by issue estoppel. Com- mission found that complaint was vexatious because it had al- ready been appropriately dealt with and to allow applicant to raise new grounds of discrimi- nation when he could have had all his human rights issues dealt with at arbitration was abuse of process and vexatious. There was no unfairness in arbitra- tion proceedings. Commis- sion's reliance on finality of arbitration proceedings to con- clude that complaint was vexa- tious did not cause unfairness or injustice. Khapar v. Air Canada (Feb. 10, 2014, F.C., Catherine M. Kane J., File No. T-509-13) 239 A.C.W.S. (3d) 984. ONTARIO CIVIL DECISIONS Arbitration AWARD Nothing about award was contrary to principles of contract law Applicant ordered seeds from respondent and made partial payment of $62,460.80. Re- spondent delivered seeds, but applicant complained about quality and respondent took them back and re-cleaned them and sought $51,330.25 balance owing. When payment was not made, respondent marketed and sold seeds to company in China without applicant's knowledge. Applicant applied for arbitration as provided for by contract and parties agreed to be bound by decision. Ar- bitrator found application for arbitration was made within 30 days of breaking of nego- tiations, so was on time under the Normaseed Rules, which parties agreed applied to their contract. Arbitrator found both parties breached contract as applicant only paid for part of crop and respondent sold seeds without authorization. Arbitrator ordered respondent to refund money paid by appli- cant with interest and parties to share costs of arbitration. Ap- plication for order recognizing arbitration award, which re- spondent had refused to com- ply with on the basis arbitrator exceeded his jurisdiction in ordering return of partial pay- ment after finding both parties breached contract. Application granted. Contract provided any breach would be settled by arbitration in accordance with Rules, so it was clearly not the case that the arbitrator exceed- ed his jurisdiction by arriving at decision upon finding breaches occurred. Contract did not im- pose limits on arbitrator beyond Rules, and Rule VIII(2)(b) stipu- lated equitable solution would be determined where there was dispute over quality, which was exactly what had occurred. Par- ties did not waive contract and nothing about award was con- trary to principles of contract law. Award recognized pursuant to Article 36(a)(iii) of Interna- tional Commercial Arbitration Act (Ont.). Proseeds Marketing Inc. v. Power Seed Inc. (Apr. 11, 2014, Ont. S.C.J., Andre J., File No. Guelph 918/13) 239 A.C.W.S. (3d) 844. Family Law DOMESTIC CONTRACTS Absence of witness to husband's signature did not preclude wife from relying on contract Parties cohabited from 2007 to 2012 in wife's home and had one child. Wife had sig- nificantly greater assets and income than husband. In 2008, wife asked husband to sign do- mestic contract. Husband took contract to lawyer for legal advice. Husband claimed he signed contract without wit- ness. After parties separated, husband brought application alleging that wife had been unjustly enriched as result of contributions he made to her home. Motion judge concluded that husband's claims were pro- hibited by domestic contract and claims were dismissed. Husband appealed motion judge's decision. Appeal dis- missed. Section 55(1) of Family Law Act (Ont.), provided that domestic contract was unen- forceable unless it was made in writing, signed by parties and witnessed. Strict requirements of s. 55(1) may be relaxed where court was satisfied that contract was executed by parties, terms were reasonable and there was no oppression or unfairness in circumstances that surrounded negotiation and execution of agreement. Both parties signed contract and wife's signature was witnessed. Both parties certified that they received in- dependent legal advice before they signed contract. There was full financial disclosure before contract was executed. Both parties were educated and so- phisticated and there was no duress, lack of capacity, vulner- ability or other circumstance that would vitiate contract. Ab- sence of witness to husband's signature did not preclude wife from relying on domestic con- tract as defence to husband's claims. Domestic contract was clear and unambiguous when it was read as whole and parties contracted for separate proper- ty regime. Wife was entitled to do what she wanted with hus- band's rent payments and her acceptance and use of them did not repudiate contract. Gallacher v. Friesen (May. 15, 2014, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and G.R. Strathy J.A., File No. CA C57663) 239 A.C.W.S. (3d) 967. Landlord and Tenant RESIDENTIAL TENANCIES Appellant had been providing unlicensed legal services Appellant operated business that provided wide variety of property management ser- vices to property owners for f lat monthly fee and included in services were appearances before Landlord and Tenant Board. Law Society received complaints about appellant's provision of unauthorized legal services and investigated. Law Society applied for permanent injunction prohibiting appel- lant from providing or holding himself out as able to provide legal services. Application judge found that appellant was provid- ing legal services and he was not exempt from licensing require- ments found in Law Society Act (Ont.) ("LSA"), and granted permanent injunction. Appel- lant appealed. Appeal allowed in part. Based on the evidence, it was clear that appellant had been providing unlicensed legal services and those services qual- ified as provision of legal servic- es under LSA. Appellant could establish that he qualified as landlord under Residential Ten- ancies Act, 2006 (Ont.) ("RTA"). However, appellant, as land- lord under RTA, did not have right to self-represent. Nothing in RTA explicitly granted ap- pellant right to self-represent. Only LSA explicitly dealt with right to self-representation and permitted self-representation in limited circumstance where in- dividual was acting on his or her own behalf, which did not apply here. However, order was overly broad. Conduct complained of was that appellant represented parties at board but injunction prohibited conduct that was much wider than appellant's ap- pearances before board. Injunc- tion should be limited to pro- hibit appellant from appearing before board on behalf of clients or on behalf of himself except where he was owner of prop- erty subject proceeding before board. Law Society of Upper Canada v. Chiarelli (May. 14, 2014, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and M.L. Ben- otto J.A., File No. CA C56952) Decision at 227 A.C.W.S. (3d) 263 was reversed in part. 239 A.C.W.S. (3d) 1060. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Jury well equipped to understand and determine issue of planning and deliberation Appeal by accused from con- viction for first degree murder. Accused was tried by judge and jury for first and second degree murder. Victim was woman with whom accused once lived in common law relationship. At trial Crown's position was that killing amounted to planned and deliberate murder and ac- cused killed her because he could not accept her indepen- dence. On appeal accused con- ceded liability for second degree murder but he claimed that trial judge erred in her instructions on evidence that related to is- sue of planning and delibera- tion. Appeal dismissed. Appeal did not turn on judge's legal instruction on planning and deliberation, which accused de- scribed as impeccable. Rather, it turned on whether judge ad- equately addressed evidence so that jury was equipped to un- derstand and determine issue of planning and deliberation for purposes of first degree murder conviction. Judge invited jury to consider evidence that could support inference of planning and deliberation. She fairly re- viewed evidence and she was not required to review every competing inference that could be drawn from piece of circum- stantial evidence. Judge was also not obligated to review all of evidence. Jury was well equipped to understand and determine is- sue of planning and deliberation and whether accused should be convicted of first degree murder. Charge to jury was fair and there was no miscarriage of justice. R. v. McPherson (Mar. 26, 2014, Ont. C.A., S.T. Goudge J.A., S.E. Pepall J.A., and E.A. Cronk J.A., File No. CA C49298) 113 W.C.B. (2d) 95. LT CASELAW

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