Law Times

Page 14 December 1, 2014 • Law Times www.lawtimesnews.com mit foreign nationals had to meet requirements of Part 11 of Immigration and Refugee Protection Regulations (Can.), which govern who may become temporary resident in worker class. Work permits of all for- eign nationals were refused on grounds they were not able to demonstrate that they ade- quately met job requirements of prospective employer. Foreign nationals applied for judicial review. Applications granted; decisions quashed and matters returned for reconsideration by different officer. Officer was not in position to assess foreign nationals suitability and experi- ence, or unreasonably import- ed suitability requirements that employers did not consider nec- essary for employment in ques- tion. There was no dispute that foreign nationals were offered positions as part of organized recruitment process on behalf of employer and that they were offered positions based upon their resumes, interviews and revealed past experience. Em- ployer was entirely happy with all aspects of their applications and offered foreign nationals jobs. It was entirely unreason- able for officer to say, on these facts, that he was not sure for- eign nationals met require- ments when employer was sure that they did. Without some ex- planation for officer's decisions to override employer on issue of suitability, this aspect of deci- sions was unreasonable. Portillo v. Canada (Minister of Citizenship and Immigration) (Sep. 12, 2014, F.C., James Rus- sell J., File No. IMM-5004-13, IMM-5012-13, IMM-5014-13, IMM-5016-13) 244 A.C.W.S. (3d) 921. ONTARIO CIVIL DECISIONS Arbitration STAY OF PROCEEDINGS Court had concurrent and not exclusive jurisdiction to hear matters Parties were each residential condominium corporations that were developed by same declarant and which together made up condominium devel- opment. Pursuant to shared facilities agreement (SFA) dated 7 May 1991, parties shared cer- tain costs in connection with operation, management, main- tenance and repair. Plaintiff 's action alleged various failures on part of defendants to com- ply with provisions of SFA and asserted that conduct of defen- dants was or threatened to be oppressive or unfairly prejudi- cial to plaintiff or to unfairly disregard interests of plaintiff. Defendants moved for stay of action and for order appointing arbitrator. They relied on arbi- tration clause contained in SFA. Plaintiff opposed stay on basis that action was appropriate ve- hicle for resolving dispute since claims for oppression remedies under s. 135 of Condominium Act (Ont.), were not arbitrable. Motion granted. Section 135 of Act was permissive in its terms. It said that corporation may make application to Superior Court for oppression remedy. Court had concurrent and not exclusive jurisdiction to hear such matters. It was equally ap- propriate for parties to resolve their disputes through arbitra- tion. In determining its own jurisdiction, arbitral tribunal would take into account what true nature of dispute between parties was, and whether it ac- tually involved oppression or was simply dispute involving SFA. It was at least arguable that dispute between parties was ar- bitrable and stay of proceedings should be ordered. Metropolitan Toronto Con- dominium Corp. No. 965 v. Metropolitan Toronto Condo- minium Corp. No. 1031 (Sep. 23, 2014, Ont. S.C.J., Graeme Mew J., File No. Toronto CV- 14-00497413) 244 A.C.W.S. (3d) 767. Bankruptcy and Insolvency ADMINISTRATION OF ESTATES Registrar read more into rules of practice than was provided Claimant filed proof of claim with trustee in bankruptcy in respect to 1967 Corvette which was in possession of trustee. Trustee later notified claimant that her claim was disallowed as she had produced insuffi- cient evidence of her beneficial ownership interest in Cor- vette. Claimant served trustee with notice of motion and supporting affidavit in which she set out her intention to ap- peal trustee's disallowance. In response, trustee delivered trustee's report. Registrar in bankruptcy held that trustee's report was inadmissible evi- dence and that trustee was re- quired to file sworn affidavit if it wished to proffer evidence on appeal. Trustee appealed from registrar's decision. Appeal al- lowed. Registrar erred in prin- ciple and law in coming to her conclusion. Registrar read more into rules of practice than was provided and she failed to fol- low established authority bind- ing on her. Report of trustee in bankruptcy, monitor or receiv- er was admissible in evidence regardless of nature of par- ticular motion or application, and whether interim or final or contested or not, unless there was some statutory prohibition of use of such report. Rules of practice did not prevent those reports from being admissible evidence. Wight to be given to trustee's report would be for registrar dealing with appeal from disallowance of claim. Martellacci, Re (Sep. 10, 2014, Ont. S.C.J., Newbould J., File No. 31-457461) 244 A.C.W.S. (3d) 768. Employment WRONGFUL DISMISSAL Poisoned work environment resulting from marital discord made continued employment intolerable Defendant employed plaintiff as manager for 11.5 years. Plain- tiff was married to defendant's owner and they separated. After plaintiff left defendant there was period of further em- ployment with defendant from which plaintiff alleged defen- dant terminated her employ- ment again. Defendant asserted plaintiff resigned after first pe- riod of employment and after second period of employment. Workplace environment was significantly affected by mari- tal discord between plaintiff of defendant's owner includ- ing interference by owner with plaintiff 's liberty of person, physical altercation and police involvement. Defendant's own- er cancelled plaintiff 's company credit card and instructed bank not to process cheques in her name. Plaintiff asked if owner's decision was to terminate her and she indicated she wished it in writing. Owner gave no response. Plaintiff had no role in company after that date. Owner alleged cheque fraud on part of plaintiff and alleged plaintiff forged his signature to fraudulently endorse company cheques. Plaintiff brought ac- tion for wrongful dismissal. Plaintiff was granted judgment of $25,000 plus interest. Plain- tiff was entitled to reasonable notice of 12 months. Defendant constructively dismissed plain- tiff by unilaterally terminat- ing plaintiff 's employment in financial management of com- pany. Poisoned work environ- ment that resulted from marital discord made plaintiff 's contin- ued employment intolerable. By failing to respond to plaintiff, owner on behalf of defendant implicitly signaled that her ex- pulsion from her financial du- ties was permanent. Suggestion that plaintiff forged cheques was without merit. Plaintiff did not fail to mitigate. Defendant could not rely on agreement be- tween plaintiff and owner. Scott v. Specs Appeal Inc. (Aug. 9, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1085/13) 244 A.C.W.S. (3d) 862. Family Law CUSTODY Not being bilingual not insurmountable obstacle to employment Parties were married 11 years and had three children (ages 13, 12, and 9). Children were pri- marily with mother since sepa- ration. Husband was arrested for assaulting wife and pleaded guilty. Husband was sentenced to year of probation with condi- tions that he not have any con- tact with wife or attend matri- monial home. Parties were not able to communicate with each other. Wife was awarded sole custody and father access. Fa- ther paid no child support, but paid mortgage on matrimonial home while wife had exclusive possession of it. Matrimonial home was up for sale. Wife grew up in Alberta and had family and friends there. Wife was not bilingual and asserted it would be easier to find job in Alber- ta. Wife sought permission to move with children to Alberta. Motion dismissed. Not being bilingual was not insurmount- able obstacle to employment. Move to Alberta was contrary to best interests of children. Move would be unduly disrup- tive. Children had entrenched themselves in their schools and social circles in current loca- tion. Children did not wish to move. Tellier v. Tellier (Sep. 9, 2014, Ont. S.C.J., Kevin Phillips J., File No. Ottawa FC-13-1423) 244 A.C.W.S. (3d) 884. DIVORCE Divorce based on adultery could be brought only by innocent spouse Co-applicants jointly sought order for divorce on grounds of adultery. Parties waiver ap- peal period and sought divorce order effective immediately. Parties had no children to- gether. Husband filed affidavit admitting he committed act of adultery. Motion dismissed. Court was vested with duty of protecting sanctity of mar- riage and family in exercise of its responsibilities. Divorce Act (Can.) (DA), and Family Law Act (Ont.), operated to prevent co-applicant from seeking or- der for divorce based on adul- tery. Divorce based on adultery could be brought only by inno- cent spouse against party that committed adultery and not by guilty spouse under s. 8(2)(ii) of DA. In joint application guilty party was one of co-applicants which was not permitted. Niyazov v. Tkatch (Sep. 5, 2014, Ont. S.C.J., McGee J., File No. Newmarket FC-14-45535-00) 244 A.C.W.S. (3d) 897. Insurance AIRCRAFT INSURANCE Accident could be found despite insured's negligence or gross negligence Insured operated twin-engine, six-passenger aircraft for his farm business. Insurer provided insurance for aircraft. Insured was unable to start one of air- craft's engines for short f light to airport some six minutes away. Insured decided to try to f ly with one engine. Aircraft was reportedly capable of doing this but insured had never done it before. Insured was able to get aircraft to take off but damaged wing while f lying over tree line. Insured could not avoid crash. Insurer denied claim on basis that incident was not accident. Insured brought action against insurer for damages for breach of contract. Action allowed. Insured was awarded agreed amount $140,000. Incident was "accident" within meaning of policy. Since policy did not de- fine "accident", definition dis- cussed in various authorities was applied. Authorities indi- cated "accident" was "unlooked for mishap or occurrence" and that accident could be found despite insured's negligence or gross negligence. In this case, insured's attempt to f ly amounted to negligence since it was foolish to try. Even if in- sured's conduct could be char- acterized as gross negligence, it would still amount to accident on facts of this case. Insured had not violated part of policy relating to protecting aircraft from further damage when he completed takeoff in face of ex- pected difficulties. Van Berlo v. Aim Underwriting Ltd. (Aug. 19, 2014, Ont. S.C.J., Victor Mitrow J., File No. 4958/10) 244 A.C.W.S. (3d) 927. Landlord and Tenant DESTRUCTION OF PREMISES Tenant's covenant did not excuse landlord from its liability for acts or negligence Tenant and landlord entered into commercial lease dated November 28, 2007 for build- ing owned by landlord. Tenant carried on business of manu- facturing and sale of custom cabinets at premises. Tenant was insured but landlord was not added to tenant's insurance policy. On January 1, 2009, de- fendant company was perform- ing welding or cutting work at premises at behest of landlord. Fire occurred and caused sig- nificant damage to building. Fire resulted in total loss, and building was eventually demol- ished. Tenant brought action for recovery of damages to ten- ant's property and its business interruption losses. Tenant claimed for recovery of both its uninsured loss and sub- rogated amounts. It was paid $10,861,885.65 by its insurer and stated that its uninsured loss was $4,138,114.35. Action allowed. Landlord undertook in lease to indemnify tenant with respect to damages to premises as result of act, default or negligence of landlord or its contractors, invitees or licens- ees. Reference to "premises" in lease included tenant's proper- ty. Tenant's covenant to insure did not excuse landlord from its liability for its acts or neg- ligence. Landlord was bound by indemnity clause. Landlord was therefore liable for losses claimed by plaintiff, subject to quantification. Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. (Sep. 5, 2014, Ont. S.C.J., Monique Metivier J., File No. Ottawa 10- 47727) 244 A.C.W.S. (3d) 937. Sale of Goods OBLIGATIONS OF SELLER Manufacturer had sufficient knowledge to be aware of potential risk Plaintiff was awarded contract on project for installation of water mains, sewers and roads in new residential subdivi- sion. Plaintiff contracted with defendant supplier for supply CASELAW

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