Law Times

Law Times • OctOber 20, 2014 Page 15 www.lawtimesnews.com officer that she was driver and further relied on her statements to officer as to where she had been and that she "may have hit something". Appeal allowed, conviction quashed, acquittal entered. Trial judge should not have considered and relied on any evidence of accused, as it was only admissible evidence on Charter application. Trial judge's comment that accused did not deny that vehicle was hers was either inadmissible evidence from accused's evi- dence on Charter application or adverse finding based on her right to silence, either of which was improper at law. Trial judge relied on evidence which was not admissible in determining whether Crown established beyond reasonable doubt that accused was driver of vehicle. Trial judge relied on circumstantial evidence that accused was driver of vehicle when, in absence of any direct evidence, it could not be said that only reasonable inference of circumstantial evidence was that accused was driver. Errors were central to reason- ing process and disposition by trial judge. When evidence was thoroughly reviewed, there was not sufficient evidence at trial capable of supporting finding beyond reasonable doubt that accused was driver. Verdict was unreasonable. R. v. Unelli (May. 28, 2014, Ont. S.C.J., Ricchetti J., File No. SCA(P) 335/13) 113 W.C.B. (2d) 737. ONTARIO CIVIL DECISIONS Air Law CARRIAGE Airline had been entitled to refuse plaintiff return transport Plaintiff, Canadian citizen, travelled from Canada to Ja- maica on defendant airline for vacation using Canadian Citizenship Card as identifica- tion. When plaintiff attempted return to Canada one week later, airline refused permis- sion to board without passport. Plaintiff produced Ontario driver's licence, Ontario health insurance plan card and social insurance card, but airline re- fused to issue boarding pass without passport. Plaintiff made no effort to obtain emer- gency Canadian passport, but did obtain Jamaican passport and returned to Canada two weeks later. Plaintiff brought action for damages for breach of contract and negligence. Action dismissed. Both legis- lation and government policy required airlines to thoroughly screen passengers travelling to Canada so as to ensure they would be permitted entry on arrival. Defendant's Interna- tional and Trans-Border Tariff, required by regulation, gave airline right to refuse trans- port for any reason, including if travel documents not in order, and stipulated that airline not liable for any refusal to trans- port. Tariff also provided that any passenger desiring trans- port across international or transborder boundary respon- sible for obtaining all neces- sary travel documents. Identity Screening Regulations (Can.), under Aeronautics Act (Can.), required international passen- gers to produce government issued photo identification including name, date of birth and gender or restricted area identification card but did not claim exclusivity. Canada Bor- der Services Agency published guide confirming transporters' responsibility to ensure pas- sengers properly documented and identifying passport as only reliable and universally accepted identification docu- ment. Guide also confirmed international transportation companies could require pas- sengers to present passports and that passengers presenting other documents, such as Ca- nadian Citizenship Card, could be subject to delays or refusals to transport. It specified Cana- dian Citizenship Card not trav- el document, but could be used as evidence of citizenship in Canada. Airline had been en- titled to refuse plaintiff trans- port and had, in fact, operated in accordance with directives from Canada Border Services Agency concerning fraudulent use of Canadian Citizenship Cards in Jamaica. Robotham v. WestJet Airlines (May. 26, 2014, Ont. S.C.J., Spence J., File No. CV-12- 448628) 241 A.C.W.S. (3d) 4. Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY By-law did not impact or intrude on core of federal power Applicant operated aerodome in respondent city. Appli- cant had been undertaking number of improvements to aerodome that involved use of fill. Applicant refused to com- ply with city's by-law because aerodomes fell under federal jurisdiction and by-law did not apply to it. Parties brought competing applications. Ap- plication judge declared that by-law was valid and bind- ing on applicant in respect to landfill activities. Applicant appealed. Appeal dismissed. Application judge undertook relevant analysis in determin- ing whether interjurisdictional immunity applied. Application judge correctly characterized by-law. Real issue was whether by-law impermissibly trenched on core of federal aeronautic power. Effect of by-law was not to improperly intrude into de- velopment of aerodrome qua aeronautical enterprise. By-law was designed to regulate quali- ty of fill and prevent use of toxic or contaminated fill in city. By- law did not impact or intrude on core of federal power. Burlington Airpark Inc. v. Burl- ington (City) (Jun. 13, 2014, Ont. C.A., J.C. MacPherson J.A., Ja- net Simmons J.A., and E.E. Gil- lese J.A., File No. CA C57908) Decision at 234 A.C.W.S. (3d) 896 was affirmed. 241 A.C.W.S. (3d) 106. PARLIAMENT Statements made during course of parliamentary proceedings could not be used in civil action Crown brought action pursuant to Tobacco Damages and Health Care Costs Recovery Act, 2009 (Ont.), claiming $50 billion for cost of healthcare benefits re- sulting from tobacco-related disease or the risk of tobacco-re- lated disease that had or would be paid by Crown for insured persons. Crown alleged that defendants breached duties by misrepresenting risks of smok- ing and exposure to second- hand smoke. Crown alleged that defendants continually repeated misrepresentations about risks of smoking, including in pre- sentations and statements made to House of Commons standing committees and to federal leg- islative committees on various occasions. Defendant applied to strike out portions of Crown's statement of claim that referred to presentations on basis of par- liamentary privilege. Applica- tion granted. Freedom of speech was well-established category of parliamentary privilege. State- ments made by person during course of participating in par- liamentary proceedings could not be used against that person in civil action. Impugned para- graphs had to be struck out. Presentations were covered by parliamentary privilege, free- dom of speech, and could not be used against defendants in civil action. Privilege was not based on how person came to attend before parliamentary commit- tee, whether evidence was un- der oath or whether person was advancing own interests. Once person attended and participat- ed in parliamentary committee proceeding, absolute privilege applied to statements made in course of proceeding and they could not be used in civil action against person. There was noth- ing that indicated that Parlia- ment had waived privilege. Ontario v. Rothmans Inc. (Jun. 12, 2014, Ont. S.C.J., Conway J., File No. CV-09-387984) 241 A.C.W.S. (3d) 131. Contracts DAMAGES Failure to act in reasonable commercial standard was breach of duty to act fairly Plaintiff entered into franchise agreement with corporate de- fendant to operate rotisserie chicken restaurant. Individual defendants were "franchisors associates" within meaning of Arthur Wishart Act (Franchise Disclosure), 2000 (Ont.). Fran- chise agreement was entered into by parties on April 3, 2012. Representations were made by defendant A. that restaurant would be up and running by June 2012 for expenditure of approximately $150,000. When restaurant was still not open by October 2012, and plaintiff 's expenditures had exceeded $226,000, plaintiff rescinded franchise agreement pursuant to s. 6 of Act for defendants' fail- ure to comply with their disclo- sure obligations and to provide statements of material change. Plaintiff commenced action for losses and damages caused by rescission and brought motion for judgment. Motion judge held that plaintiff had right to rescind franchise agreement, but that trial was necessary on issue of damages. Action al- lowed. Plaintiff was awarded damages for vehicle expenses of $10,080, salary of project manager in amount of $35,000, and payment for principal of franchisee of $5,000. Plaintiff was awarded damages for loss of profits caused by failure of restaurant to open as scheduled in amount of $113,803. Misrep- resentations by defendants and failure to act in reasonable com- mercial standard was breach of duty to act fairly and warranted award of damages in amount of $25,000. 8150184 Canada Corp. v. Ro- tisseries Mom's Express Ltd. (May. 30, 2014, Ont. S.C.J., A.J. O'Marra J., File No. CV-12- 466869) 241 A.C.W.S. (3d) 110. INTERPRETATION Respondent had obligation to indemnify, reimburse and save harmless applicant In 2008, applicant was pro- moted to management position and then to Director, Commu- nications and Public Affairs with respondent school board. Applicant and respondent en- tered into contract of employ- ment for position. Contract was drafted solely by or on behalf of respondent. Applicant was now facing disciplinary procedures brought by respondent aris- ing from formal investigation and resulting allegations going to her managerial abilities, her honesty and her good faith in carrying out her duties. Appli- cant brought application seek- ing determination of her right to advancement and indemnifica- tion by respondent for her legal and other costs and expenses incurred in defending herself. Contract provided that respon- dent was required to indemnify and save harmless applicant from charges and costs related to her attempts to defend herself in any action, suit or proceed- ing. Duty to indemnify and save harmless applicant was subject to disqualification where such costs and charges were occa- sioned by applicant's own bad faith conduct. Application al- lowed. Without proof to high degree of strong prima facie case that applicant had acted dishon- estly or in bad faith, which was not even attempted before ap- plication judge, application was limited to whether by contract, and/or by statute, applicant was entitled to immediate and ongo- ing indemnification of her legal costs incurred during investi- gation by respondent. When respondent commenced inves- tigation, it started "proceeding" against applicant. Proceeding began with warnings to her that she was to be investigated and continued through her termi- nation and pending arbitration. Accordingly, it was declared that respondent had obligation to indemnify, reimburse and save harmless applicant for all costs, charges and expenses she had and would have in defending herself in proceeding. Legg v. Simcoe Muskoka Catho- lic School Board (May. 23, 2014, Ont. S.C.J., P.H. Howden J., File No. Barrie CV-14-0425) 241 A.C.W.S. (3d) 114. PERFORMANCE AND BREACH Trial judge could not be faulted for failing to order relief that applicant did not seek City negotiated with company that manufactured wind tow- ers to set up shop in city. Com- pany required city to arrange for rail line to be provided to facility. Suitable location was found with nearby main railway line that could be extended to facility by rail spur. Applicant owned undeveloped land in vi- cinity of proposed facility and part of land was suitable for rail spur. City purchased 60 acres of applicant's land and was ob- ligated to extend road to ap- plicant's remaining land when land was ready to be developed. Environmental assessment had to be conducted before road extension could be constructed over rail line. Environmental assessment did not recommend that road extension follow route specified in agreements between applicant and city and recom- mended alternative configura- tion. Applicant applied for order compelling city to comply with obligations to construct road extension in accordance with agreed-upon route. Application judge dismissed application. Applicant appealed. Appeal dis- missed. Application judge did not err in declining to exercise discretion to order permanent injunction that prevented city from constructing rail spur. Damages were adequate remedy and there was no error in de- clining to order equitable relief. Application judge did not err in dismissing application in entire- ty rather than granting declara- tions that city was in breach of agreements and ordering trial of issue to assess damages. Appli- cant only sought permanent in- junction and did not seek dam- ages in alternative and it did not request application judge to as- sess damages. If applicant want- ed to seek damages it had to do so in properly pleaded manner. Trial judge could not be faulted for failing to order relief that ap- plicant did not seek. Pointe East Windsor Ltd. v. Windsor (City) (Jun. 16, 2014, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and E.E. Gil- lese J.A., File No. CA C58185) 241 A.C.W.S. (3d) 193. LT CaSElaW

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