Law Times

Page 14 December 8, 2014 • Law Times www.lawtimesnews.com ONTARIO CIVIL DECISIONS Civil Procedure SUMMARY JUDGMENT Actions and steps taken by defendant were prima facie authorized by statute Plaintiff was ordered by mu- nicipality inspectors to remove materials on land owned by him. Plaintiff failed to comply with order and had materials removed at his costs and against his wishes. Plaintiff brought action against municipality al- leging that decision and its en- forcement was negligent and excessive. Defendant brought motion for summary judgment for dismissal of plaintiff 's ac- tion. Motion granted. Actions and steps taken by defendant were prima facie authorized by statute. There was no evidence suggesting that actions were beyond what was authorized by law. Plaintiff failed to pres- ent genuine issue for trial, as he adduced no evidence of defen- dant's alleged negligence or bad faith. Meloche v. Alfred and Planta- genet (Township) (Sep. 19, 2014, Ont. S.C.J., Ronald M. Lalib- erte Jr. J., File No. L'Orignal 534- 2012) 245 A.C.W.S. (3d) 67. Contracts FORMATION Issue of set-off had not been raised during contractor's attempts to collect payment Company related to contrac- tor owed property owner mon- ey. Contractor rented certain equipment with operator to property owner. Contractor rendered invoice to owner for $34,860 but owner never paid. Owner alleged work was sup- posed to be performed by re- lated company and was to be credited against amount owing by related company. Contractor brought action against owner for amount owing. Action al- lowed. Contractor was awarded $34,860 as claimed. Owner's al- legations were not supported by evidence. Evidence of contrac- tor was accepted. Contractor never agreed to provide work to owner on basis that it would be set off against related company's obligations to owner. Further, contractor never did anything to lead owner to believe con- tractor did not expect payment of its invoice. Issue of set-off had not been raised during contrac- tor's attempts to collect payment until contractor's counsel sent demand letter. Atlas Corp. v. Walker Aggre- gates Inc. (Aug. 21, 2014, Ont. S.C.J., DiTomaso J., File No. Barrie CV-12-0357OTSR) 245 A.C.W.S. (3d) 81. Courts STAY OF PROCEEDINGS Plaintiffs had avenues available within labour relations regime to challenge agreements Plaintiffs were unionized ma- sonry contractors in industrial, commercial and institutional sector of Ontario's construction industry. Defendants were con- struction trade unions. Plain- tiffs entered into independent contractor agreements with bricklayers. Plaintiffs alleged that defendants entered collec- tive agreements and memoran- dum of agreement that prevent- ed plaintiffs from continuing to enter into independent contrac- tor agreements. Plaintiffs com- menced action against defen- dants claiming that memoran- dum of agreement and collec- tive agreements were unlawful and void, seeking injunctive re- lief and damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means. Defendants moved for order dismissing or staying action on ground that court had no jurisdiction over subject matter of action. Mo- tion was granted. Motion judge stayed action on ground that essential character of dispute was labour relations over which Labour Relations Board had ex- clusive jurisdiction. Plaintiffs appealed. Appeal dismissed. Motion judge applied correct test and reached correct result. Essential character of dispute fell within board's exclusive jurisdiction. Plaintiffs had av- enues available within labour relations regime to challenge va- lidity of memorandum of agree- ment and collective agreements. There was no deprivation of ul- timate remedy plaintiffs sought. Motion judge did not err in re- fusing to grant interlocutory relief. Limen Group Ltd. v. Blair (Sep. 23, 2014, Ont. C.A., Doherty J.A., S.E. Pepall J.A., and M. Tull- och J.A., File No. CA C59045) Decision at 242 A.C.W.S. (3d) 421 was affirmed. 245 A.C.W.S. (3d) 200. Human Rights Legislation DISCRIMINATION Plaintiff 's failure to produce sales had nothing to do with time off for surgery Defendant employed plaintiff as salesman. Plaintiff had hernia surgery and was off work for 10 days. One month after plaintiff returned defendant informed plaintiff that his performance was below expectation. Plain- tiff was required to fulfill steps to improve sales productivity. Plaintiff came down with pneu- monia and was off for two weeks and returned to work on re- duced workload for one further week. Defendant terminated plaintiff 's employment after 11 months on basis he was not pro- ducing sufficient sales. Plain- tiff alleged his termination was based on disability. Defendants brought motion for summary judgment. Plaintiff failed to re- but defendant's evidence that established there was no genu- ine issue for trial. Plaintiff was already obtaining damages for termination of his employment in proceeding. Plaintiff pro- duced no evidence to establish that he was denied equal treat- ment on basis of disability or that he suffered any other harm based on such allegations. There was no evidence of any indepen- dently actionable wrong that could support claim for puni- tive damages. Plaintiff 's failure to produce sales had nothing to do with time he took off for her- nia surgery. Draganjac v. Equity Financial Trust Co. (Sep. 26, 2014, Ont. S.C.J., F.L. Myers J., File No. CV-13-478233) 245 A.C.W.S. (3d) 112. FEDERAL COURT OF APPEAL Immigration OFFENCES Only by assuming guilt by association could director conclude applicant committed offence Director denied applicant pass- port services for five years be- cause he knowingly organized, induced, aided or abetted wife to travel using counterfeit New Zealand passport. Applicant applied for judicial review. Ap- plication was granted. Attorney General appealed. Appeal dis- missed. Federal Court erred in finding that director acted in procedurally unfair manner by failing to put alleged offence to applicant for response because it was put to him. However, facts relied on by director could not lead to conclusion that ap- plicant committed offence un- der s. 117 of Immigration and Refugee Protection Act (Can.). None of facts positively sup- ported finding that applicant used his passport to knowingly aid, organize, induce or abet wife to come to Canada with counterfeit passport. Only by unreasonably assuming guilt by association could director conclude from facts alone that applicant committed s. 117 of- fence. Director disbelieved what applicant told him but disbelief, without more, did not support finding that applicant commit- ted offence. Dias v. Canada (Attorney Gen- eral) (Sep. 10, 2014, F.C.A., Pel- letier J.A., David Stratas J.A., and Webb J.A., File No. A-102- 14) Decision at 236 A.C.W.S. (3d) 989 was affirmed. 245 A.C.W.S. (3d) 183. Income Tax EVASION OF TAX Motion was collateral attack on jeopardy order proceedings Taxpayer wrote on income tax returns, "collecting income tax by government is against Con- stitution of Canada." Taxpayer was charged with income tax evasion. Taxpayer's objections to 1993 to 1996 income tax assessments were being held pending disposition of tax eva- sion charges. Between June 1999 and May 2003, CRA col- lected $871,291.90 from tax- payer pursuant to 1999 jeop- ardy order. In 2010 and 2011, taxpayer was twice convicted of tax evasion and ordered to pay fines of $522,346.73 and $101,393.80. Taxpayer's case before Tax Court was reacti- vated. Taxpayer wished funds collected pursuant to jeopardy order to be applied to liability which would survive potential bankruptcy. Federal Court dis- missed taxpayer's motion for caseLaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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