Law Times

Law Times • March 9, 2015 Page 15 www.lawtimesnews.com serted women stole gun from his vehicle while he was in res- taurant. Women asserted ap- plicant picked them up and was unsuccessfully negotiating price for sex with one of them when other stole gun. Applicant was charged with conducting him- self in disgraceful manner that brought discredit to RCMP. Applicant admitted it was dis- graceful for him to leave firearm unattended and unsecured in vehicle. Applicant was ordered to forfeit five days' pay. Officer successfully completed officer candidate program twice. Ap- plicant filed harassment com- plaint against chair of adjudica- tion board that had disciplined applicant who informed ap- plicant's adviser that there may have been more to disciplinary matter. Deputy Commissioner was not satisfied with applicant's answers and stopped supporting applicant's bid for promotion. Adjudicator found chair's gossip about applicant prejudiced his chances for advancement and ordered respondent to reinstate applicant to list of candidates eligible for commission. Appli- cant was sent letter refusing to respect adjudicator's decision. Commission sent letter to ap- plicant indicating that previous incident was at heart of matter and that he would never com- mission application as officer as long as applicant continued to deny allegations and stated that applicant should consider whether he could continue to contribute to RCMP at his cur- rent rank. Applicant sought ju- dicial review. Application was granted. Decision was set aside. Commissioner was ordered to do as much as he could to enable applicant's promotion and to not withhold his consent once position was available because of circumstances surrounding theft of applicant's firearm. De- cision was conditional on noth- ing else coming to light that would reasonably cast shadow over applicant's qualifications. Court had jurisdiction to re- view decision. Court did not have confidence that grievance procedure would be adequate in case. It was unacceptable for Commissioner to circum- vent procedure chosen by Par- liament and hold allegations against applicant as if they had been actually proven. It was now impossible for applicant to challenge women's testimo- ny. No new evidence arose to justify reopening adjudication board's decision. Commission- er violated scheme enacted by Parliament by looking behind adjudication board's decision and preferring own intuitions. Commissioner exceeded his discretion because he relied on considerations prohibited by statute from which he derived his power. Decision was unjus- tifiable. Boogaard v. Canada (Attorney General) (Nov. 21, 2014, F.C., John A. O'Keefe J., File No. T-1548-13) 247 A.C.W.S. (3d) 460. ONTARIO CIVIL DECISIONS Administrative Law BIAS Divisional Court incorrectly applied test relating to conflict of interest of lawyer Employees brought proceedings before Labour Relations Board. Vice-chair had previously acted for one of employees in matter that concerned his employment with union who was one of re- spondents in application. Em- ployees had asked vice-chair to recuse himself but he declined to do so. Vice-chair dismissed employee' application. Employ- ees applied for judicial review. Divisional Court quashed deci- sion on grounds that vice-chair was in actual or perceived con- f lict of interest. Unions ap- pealed. Appeal allowed. Divi- sional Court incorrectly applied test relating to conf lict of inter- est of lawyer instead of correct test for reasonable apprehension of bias. By applying incorrect test, Divisional Court failed to apply presumption of impartial- ity. Divisional Court also failed to conduct contextual analysis, which required consideration of number of factors that were rele- vant to reasonable apprehension of bias test. Employees failed to rebut presumption of impartial- ity that attached to vice-chair. Vice-chair's decision on issue of reasonable apprehension of bias should be reinstated. There was no denial of procedural fairness. Vice-chair's exercise of discre- tion was not unreasonable. Terceira v. LIUNA (Nov. 26, 2014, Ont. C.A., K. Feldman J.A., R.A. Blair J.A., and S.E. Pepall J.A., File No. CA C58059, C58146) Decision at 229 A.C.W.S. (3d) 252 was reversed. 247 A.C.W.S. (3d) 447. Employment WRONGFUL DISMISSAL Defendant did not consider any alternative to dismissal of plaintiff without notice Defendant employed plaintiff for 16 years. Plaintiff was 41 years old. Defendant termi- nated plaintiff 's employment after investigation by defendant into circumstances of physical altercation between plaintiff and co-worker on shop f loor of defendant's manufacturing facility before commencement of shift on day of termination. Plaintiff asserted that co-worker elbowed him in ribs. Plaintiff said he had one-second black- out and next thing he saw was co-worker on f loor. Plaintiff asserted co-worker ran into his raised forearms and fist with his face. Co-worker asserted he accidentally bumped plain- tiff with elbow and plaintiff punched him in nose. Plaintiff brought action for wrongful dis- missal. Plaintiff was wrongfully dismissed. Reasonable period of notice was 15 months. Defen- dant did not show there were no other reasonable alternatives to termination without notice. Co-worker's elbow came into contact with plaintiff, although contact was not violent or delib- erate. Plaintiff was offended by co-worker's failure to acknowl- edge that he bumped plaintiff and to apologize for it. Plain- tiff 's reaction was heightened by lingering effects of incident with co-worker previous day. Plain- tiff was aggressor in incident and punched co-worker on nose causing him to stumble to f loor and his nose to bleed. Defendant did not consider any alternative to dismissal of plaintiff without notice. Plaintiff was aggressor but co-worker participated in it by not walking away or extricat- ing himself from situation. Fact that plaintiff 's conduct might have constituted breach of Oc- cupational Health and Safety Act (Ont.), did not override need to adopt contextual and propor- tional approach in determining whether defendant made out defence of just cause. Failure to accept responsibility for wrong- doing was one factor to be con- sidered in carrying out contex- tual analysis, but incident of vio- lence here was isolated. Plaintiff had 16 years with no previous incidents of discipline. Plaintiff did not prove that manner of dismissal caused him mental distress that was in contempla- tion of parties. Claim for puni- tive damages was dismissed. Termination was not motivated by any animus toward plaintiff. Phanlouvong v. Northfield Metal Products (1994) Ltd. (Nov. 17, 2014, Ont. S.C.J., D.A. Broad J., File No. 11-4508-SR) 247 A.C.W.S. (3d) 372. Family Law CUSTODY Issue of whether change in residence was in children's best interests was not addressed Parties were married for six years and had two children. During marriage parties re- sided in Waterloo, Ontario area. When parties separated mother moved with children to Lindsay, Ontario to be closer to extended family and to up- grade her education. Parties entered into minutes of settle- ment where they agreed to joint custody with children's primary residence being with mother in Lindsay. Settlement provided that mother would try to find work in Waterloo area when she completed schooling. When mother completed schooling she did not seek employment in Waterloo, which led to con- tempt proceedings and mo- tions to change terms of order. Court ordered mother to move from Lindsay to Waterloo and that primary residence would change to father unless mother relocated. Mother appealed. Appeal allowed. Finding that there had been material change in circumstances to warrant re- view of order was supported by record. There would be benefit to children if they lived in same area as father. However, central issue of whether change in chil- dren's primary residence from mother to father was in their best interests was not addressed. There was no basis for order un- der appeal that ordered change in children's primary residence if mother chose not to reside in Waterloo. In absence of fact finding and analysis required to determine whether change in children's primary residence was in their best interests, order was set aside. Jones v. Jones (Nov. 20, 2014, Ont. C.A., E.A. Cronk J.A., E.E. Gillese J.A., and Paul Rouleau J.A., File No. CA C58784) De- cision at 230 A.C.W.S. (3d) 788 and 240 A.C.W.S. (3d) 106 were reversed. 247 A.C.W.S. (3d) 394. Sale of Land DUTY OF VENDOR Defect did not render premises uninhabitable or inherently dangerous Buyers purchased house from vendor by agreement of purchase and sale. Agreement contained entire agreement clause. There was no warranty that dealt with basement or potential water in- trusion problems. Deal was not conditional on inspection but buyers conducted inspection and proceeded to closing. After closing buyers discovered de- fect, basement water intrusion that was caused by foundation leak. Buyers sought damages based on breach of duty of dis- closure and fraudulent conceal- ment. Action dismissed. Based on evidence, basement suffered from occasional water intrusion for several years before it was sold to vendor. However, it could not be concluded that specific leak buyers found was present during those years. On balance of probabilities, it could not be concluded that vendor was or ought reasonably to have been aware of foundation hole buyers discovered. Caveat emptor was presumptive rule. If there was duty of disclosure exception to caveat emptor vendor was not liable unless she failed to dis- close defect that rendered prem- ises uninhabitable or inherently dangerous. Vendor here had no legal duty of disclosure because defect did not render premises uninhabitable or inherently dangerous. Based on evidence, vendor did not possess such knowledge. Potential liability was ousted by terms of contract between parties. Buyers got exactly what they bargained for and claim based on duty of disclosure failed. Vendor must have been aware of some water intrusion problems but evi- dence did not establish that she knew of any specific problem or its source or severity. Claim of fraudulent concealment failed. Thomas v. Raynard (Nov. 24, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 182/14) 247 A.C.W.S. (3d) 469. Torts VICARIOUS LIABILITY Unlikely employer would be held vicariously liable for inten- tional tort of employee Plaintiff alleged that his car tires were slashed on three occasions while it was parked at residential property he rented from defen- dant. Alleged perpetrator was also tenant and worked as defen- dant's superintendent until Nov. 25, 2013. Two incidents were alleged to have occurred before that date, and one after that date. Plaintiff sued for damages of $25,000. Defendant moved for judgment dismissing plain- tiff 's claim on several grounds, but primarily that matter fell within exclusive jurisdiction of Landlord and Tenant Board. Motion granted. While plaintiff had reasonable chance at trial of proving that alleged perpetrator was liable for slashing his tires, he had no reasonable chance of proving liability against defen- dant. Plaintiff 's claim clearly failed to plead reasonable cause of action against defendant. Even if plaintiff proved that al- leged perpetrator was employee of defendant, it was unlikely that employer would be held vicari- ously liable for intentional tort or criminal actions of employee. Plaintiff 's claim was dismissed. Carroca v. River Park Village (Nov. 17, 2014, Ont. S.C.J., J. Sebastian Winny D.J., File No. Kitchener 1216/14) 247 A.C.W.S. (3d) 487. ONTARIO CRIMINAL DECISIONS Animals GENERAL Not reasonable to charge accused fees over $20,000 in excess Accused appealed decision of Animal Care Review Board on grounds horses seized from his farm were not distressed and sought return to him with require- ment that he only remit modest payment on account of costs of their care instead of bill that ap- peared to be $20,000 in excess. Society for Prevention for Cruelty to Animals recognized that it may be difficult for accused to get far- rier and veterinarian to attend at his property on short notice. It gave accused additional time to locate these services and was will- ing to grant more time if it could be assured services were in place. Accused failed to provide assur- ances despite evidence animals were in distress. Appeal allowed. Animals were to be returned af- ter payment of reasonable fees by accused. Animals were properly seized from accused as there was evidence of distress and reason- able efforts were made to allow accused obtain proper care. It was not reasonable however to charge accused fees over $20,000 in ex- cess in what was reasonable and accused was only required to pay actual costs of care before they could be returned. Pryor v. Ontario Society for the Prevention of Cruelty to Animals (Nov. 12, 2014, Ont. S.C.J., R.D. Gordon R.S.J., File No. C-13- 0010) 117 W.C.B. (2d) 429. LT CASELAW

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