Law Times

Page 14 March 23, 2015 • Law Times www.lawtimesnews.com Employment WRONGFUL DISMISSAL Defendant obligated to recall plaintiff to position similar to work done prior to layoff Plaintiff was salesman who worked for defendant. Plaintiff was responsible for bringing in account that grew exponentially in short period of time. Plaintiff managed account over next four years. However, following glob- al financial crisis, sales quickly collapsed, resulting in major work force downsizing. Plaintiff requested opportunity to take some time off and agreed to 35 week lay-off. Plaintiff claimed he was constructively dismissed when he was set to return to work after lay-off period because position he was offered was fun- damentally different than posi- tion he had always held. Plaintiff sought damages for wrong- ful dismissal. Action allowed. Plaintiff was constructively dis- missed because position offered to him at end of lay-off period was fundamentally different than work he had been doing for previous four years. Defendant was obligated to recall plaintiff to position that was similar to work he had been performing prior to lay-off. Plaintiff was not obligated to resume work with defendant in order to minimize his damages because position he was offered was not well- defined. Plaintiff was 46 years old with secondary school edu- cation and 14 years of service, including lay-off period. Similar positions were difficult to find. Plaintiff was engaged in cyclical enterprise with increased risks of downturns. Weighing rel- evant factors, appropriate notice period was 16 months. Plaintiff was entitled to compensatory damages equal to 16 months pay in lieu of notice commenc- ing with remuneration plaintiff would have received in October 2009 less income received dur- ing notice period. McCarthy v. Motion Industries (Canada) Inc. (Mar. 12, 2014, Ont. S.C.J., Martin James J., File No. CV-09-4749) 247 A.C.W.S. (3d) 837. Family Law PROPERTY Husband had no right to sell wife's interest in joint owned home in Iran Parties were married and had two children. Husband owned dental practice and wife was teacher. Husband asserted that date of separation was Decem- ber 2004 and wife asserted date of separation was January 2010. Parties were joint owners of matrimonial home in Canada and were joint owners of home in Iran. Husband arranged for home in Iran to be sold at auc- tion without notice to wife and husband's power of attorney purchased home. Wife asserted that because husband refused to provide her with Islamic di- vorce she could not go to Iran to attend to matters. Wife asserted her father transferred property into her name when she was 14 years old and wife claimed de- duction for property. Husband was gifted one-sixth interest in two properties in Iran which he received during marriage and which he still owned. Husband claimed exclusion from net fam- ily property based on tracing of inherited one-sixth interest in his parents' home into his den- tal office and then into another property. Husband inherited Orange Garden property in Iran. Parties advanced loan to child to purchase vehicle. Hus- band claimed advance was loan and wife claim it was gift. Hus- band made claim to exclude assets from his net family prop- erty. Wife made claim to deduct assets from her net family prop- erty. Husband owed wife equal- ization payment of $289,934. Husband was to transfer his interest in matrimonial home to wife. Wife was entitled to setoff for her half interest in jointly owned home in Iran against amount she owed husband for his half interest in matrimonial home. Husband had no right to sell wife's interest in jointly owned home in Iran. Court was not satisfied fair market value was paid. Advance by parties to child to purchase vehicle was gift and was not to be included in net family property calcula- tion. No loan agreement was signed and no regular payments were made. On date of marriage wife held property in Iran in trust for her brother and herself and she was entitled to deduc- tion from net family property. Wife's claim to exclude jewelry as gifted to her from family was not proven. Husband was allowed exclusion of one-sixth share in property in Iran. Hus- band did not prove exclusion of property on basis of tracing. Etemad v. Hasanzadeh (Nov. 19, 2014, Ont. S.C.J., Backhouse J., File No. FS-11-366796) 247 A.C.W.S. (3d) 880. SUPPORT Wife presented herself as victim of husband but her allegations were not proven Husband was ordered to pay spousal support of $4,251 per month based on income of $174,000 per year. Since order was made, husband was granted sole custody of two children of marriage because wife had alienated daughter from hus- band and there was danger she would alienate son. Husband no longer had to pay child support but he was ordered to continue to pay spousal support. Hus- band claimed his income had declined because he did not have ability to work as many hours as he did prior to having sole cus- tody. Husband incurred addi- tional expense of hiring nanny to help care for children while he worked. Husband applied to vary spousal support. Applica- tion granted. There had been change in circumstances since order was made, as there was now custodial order in favour of husband and he experienced as- sociated financial consequences as result. Wife presented herself as victim of husband but her al- legations were not proven. Wife had obligation to contribute to her own support and to support of children. Order was varied so husband was to pay spousal sup- port of $1,971 per month based on income of $149,000 per year. Kaverimanian v. Manickam (Dec. 12, 2014, Ont. S.C.J., Van Melle J., File No. FS-13-76817- 00) 247 A.C.W.S. (3d) 908. Mortgages DEFAULT Plaintiff was not innocent dupe but was careful and capable negotiator Plaintiff brought action against defendant arising out of series of mortgage and other financial transactions. Plaintiff claimed he was unsophisticated, gull- ible victim who was taken ad- vantage of by defendant. Plain- tiff made serious allegations against defendant claiming he overstated mortgage indebt- edness and deceived plaintiff. Defendant counterclaimed for unpaid balance owing under mortgage. Action dismissed; Counterclaim allowed. Defen- dant was clear and consistent in his evidence and his testimony was preferred over plaintiff 's testimony. Corporations owned properties in issue and business operated from one property, not plaintiff. Plaintiff had no right to stand in corporations' shoes and recover damages for them. To extent plaintiff could claim damages in his own right, claims were based on facts and circumstances that arose more than two years before action was started. Plaintiff had not established contractual or other basis for personal claims for ser- vices he allegedly provided to defendant over years. Plaintiff was not innocent dupe but was careful and capable negotia- tor. Defendant established that $218,154.52 plus interest was owing under mortgage. Mishev v. Shah (Dec. 15, 2014, Ont. S.C.J., Moore J., File No. CV-10-401105) 247 A.C.W.S. (3d) 967. ONTARIO CRIMINAL DECISIONS Appeal FRESH EVIDENCE Judge might have come to different conclusion had doctor's report been available Accused appealed from find- ing that he was not criminally responsible (NCR) after he pleaded guilty to criminal ha- rassment, assault causing bodily harm, utter death threat and failing to comply with recogni- zance. Accused relied on report of doctor, prepared shortly after proceedings concluded. In this report, doctor did not support claim of NCR with respect to number of offences. This report was not available to judge at hearing when he found accused NCR. Report was thorough and very helpful in shedding more light on accused's circum- stances. Appeal allowed; new trial ordered on NCR issue only. With her usual fairness, Crown conceded that doctor's report should be admitted as fresh evi- dence and that new trial should be ordered, but limited solely to NCR issue. Court accepted this concession as reasonable. Had doctor's report been available to judge at hearing, he may well have come to different conclu- sion. R. v. Alexander (Nov. 27, 2014, Ont. S.C.J., Trotter J., File No. 54/14) 118 W.C.B. (2d) 58. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT That officer targeting accused not only inference to be drawn from conduct Accused appealed his convic- tion for driving "over 80." At trial accused argued that he was arbitrarily detained in breach of s. 9 of Charter when he pro- vided breath sample into ap- proved screening device. Ac- cused argued arresting officer erroneously believed that he had two previous drinking and driving convictions and had engaged in campaign of watch- ing and stopping him for several months before arrest. Accused and two witnesses testified that this was third time same officer had stopped accused within six or seven hours and that he had frequently driven by locations where accused and his truck were located. While officer testi- fied that he stopped accused be- cause his rear licence plate light was out, accused argued officer's motivation for stopping him was his mistaken belief about accused's record and that trivial offence like not having tail light out was not sufficient grounds to make stop. Trial judge dis- agreed, noting that question was "so what?" if officer was harass- ing accused because he accepted officer's evidence light was out and found that this provided him with grounds to stop ac- cused. Officer testified that he did not realize accused's vehicle was that of person he dealt with earlier until after he had pulled truck over. Officer said that he ran accused's name on CPIC after he had arrested him for driving with consumed excess alcohol and that record he ob- tained showed 1990 and 1997 convictions for impaired driv- ing. It was not until he was in midst of cross-examination that officer was told accused had no record. Appeal dismissed. Trial judge's decision was not unrea- sonable. Officer swore he was unaware of criminal record, wrongly attributed to accused, until after his arrest on excess alcohol charge. Officer remem- bered stopping accused earlier on seatbelt infraction and had no memory of incident where he pulled over another vehicle, in which accused was passenger, but in which female bartender had been driving. There was no dispute that officer would drive through Legion parking lot, in his words, to show police pres- ence that could make people think twice about driving after drinking. While it was possible officer was targeting accused, that was not only inference to be drawn from that conduct. If it were determined that officer had one improper purpose for stopping accused in addition to Highway Traffic Act (Ont.) vio- lation, it would have rendered stop unlawful. Court agreed with accused that trial judge erred in that regard. However, insurmountable hurdle for ac- cused was trial judge's reason- able finding officer was not im- properly targeting accused. R. v. Sherrard (Nov. 10, 2014, Ont. S.C.J., Durno J., File No. Guelph CR-13-0250-AP) 118 W.C.B. (2d) 23. RIGHT TO COUNSEL Accused's statement not expression of waiver, but one of frustration or resignation Accused appealed conviction for "over 80." Officer testified that he provided rights to coun- sel to accused at roadside and that accused indicated that he understood and did not wish to call lawyer. Officer's notes had entries "RTC" and "law- yer," then there was something scratched out, with "no" on top of it. Officer advised breath technician that accused did not wish to speak to lawyer. When breath technician addressed ac- cused's rights to counsel again, accused said something about possibly wanting lawyer, then said, "You know what? Fuck it." Breath technician testified that it was clear that accused did not want to speak to lawyer and so he proceeded with breath tests. Accused testified that he had wanted to speak to lawyer and had made that known to officer as soon as he was read his rights. Accused testified that he had wanted to call his wife, who was lawyer, but that he was denied use of his cell phone. Accused testified that he told breath technician that he had better make call, but that he became frustrated because no one was paying attention to his requests, so he just said "fuck it." Accused testified that he never told po- lice that he did not want to talk to lawyer. Trial judge found that accused understood his rights to counsel and did not clearly and unequivocally waive his rights to counsel with officer. Trial judge found that accused's rights to counsel were violated when officer did not provide him with reasonable opportu- nity to consult lawyer before attempting to elicit evidence from him by turning him over to breath technician for breath testing. Trial judge found that accused had clearly and un- equivocally waived his rights to counsel with breath technician, and that breath technician did not violate his rights to counsel CASELAW

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