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Law Times • February 23, 2009 to depart from general rule that constitutional arguments should not be raised for first time on ap- peal. Issues raised on appeal not purely jurisdictional and prejudice could be caused by lack of oppor- tunity to adduce evidence and in- sufficient record. Tiboni v. Merck Frosst Canada Ltd. (Nov. 24, 2008, Ont. S.C.J., Bel- lamy J., File No. 503-08) Leave to appeal from 168 A.C.W.S. (3d) 36, 295 D.L.R. (4th) 32 was granted. Order No. 008/332/061 (7 pp.). Associations RELIGIOUS ASSOCIATIONS Applicant's disqualification was invalid This was application to direct re- spondent association to hold elec- tion and allow applicant to stand for election as president. Applicant had served as officer of respondent and decided to run as president and was duly nominated. Respondent's management committee informed applicant that he was not eligible for position. Allegations of crimi- nal misconduct and negligence were made against applicant. Ap- plication granted. There was noth- ing in respondent's constitution that gave management committee power it purported to exercise to disqualify candidate based on past conduct. Applicant's disqualifica- tion was invalid. Process followed by respondent was not justified by its constitution. Fairness and good governance required that election was held and applicant was per- mitted to stand for election. Bala v. Scarborough Muslim Assn. (Dec. 2, 2008, Ont. S.C.J., Strathy J., File No. 07-CV-333931-PD2) Order No. 008/339/089 (5 pp.). Civil Procedure PLEADINGS Motion judge erred in principle in approach to striking pleadings Plaintiff barrister and solicitor ar- rested and charged with sexual assault following complaint from immigration client. When he ap- peared in court, he was re-arrested for three further counts of sexual assault arising out of complaints of another client. Although plain- tiff voluntarily turned himself into police, both arrests took place in front of colleagues and public. Plaintiff acquitted of all charges. Trial judge concluded police inves- tigation wanting in some respects and was suspicious two complain- ants had common motive to impli- cate plaintiff. Plaintiff commenced proceedings against Crown, po- lice, Province, Attorney General of Ontario and Legal Aid Ontario. He alleged malicious prosecution, breach of Charter rights, negligent investigation and assault by police and various other causes of action. Defendants successful in obtaining order to strike claims except for ac- tion against Attorney General of Ontario and Legal Aid Ontario. Plaintiff delivered fresh statement of claim limiting causes of action. Plaintiff's appeal from decision striking out most of new plead- ings allowed. Motion judge erred in principle in approach to analy- sis of problem. First, he struck out claims court had already ruled plaintiff entitled to pursue. Second, motion judge arrived at decision by, in effect, trying case based on meticulous analysis and weighing of allegations in pleading amongst themselves and compared with external evidence. Third, motion judge applied test too narrow in relation to central issue of malice. Miguna v. Toronto Police Services Board (Nov. 28, 2008, Ont. C.A., Rosenberg, Gillese and Blair JJ.A., File No. C46761) Appeal from 155 A.C.W.S. (3d) 546 with supplementary reasons at 156 A.C.W.S. (3d) 1038 was allowed in part. Order No. 008/336/049 (32 pp.). WANT OF PROSECUTION Clear case of unreasonable delay Appeal from order of master dis- missing action at status hearing pursuant to Rule 48.14(8) of Rules of Civil Procedure (Ont.). Plain- tiff's counsel requested status hear- ing to avoid dismissal of action by registrar for failure to set matter down for trial within two years of filing of statement of defence. Defendants waited for extended period of time for promised par- ticulars. Plaintiff's counsel assured defendants on several occasions that particulars were forthcoming. Appeal dismissed. Clear case of unreasonable delay. Plaintiff filed no material at status hearing ex- plaining delay and did not provide any articulated plan for moving case forward. No clear time line of when particulars would be avail- able was provided. No palpable and overriding error. Donskoy v. Toronto Transit Commis- sion (Sep. 19, 2008, Ont. S.C.J. (Div. Ct.), Wilson J., File No. DC-07-000112-00) Order No. 008/267/067 (5 pp.). Constitutional Law CHARTER OF RIGHTS Agricultural Employees Protection Act, 2002 (Ont.) breaches s. 2(d) of Charter and not saved by s. 1 Agricultural Employees Protection Act, 2002 (Ont.), does not breach s. 15 equality rights of agricultural workers. Act perpetuates and rein- forces pre-existing disadvantage of agricultural workers but distinc- tion not based on enumerated or analogous ground. Category of "agricultural worker" does not denote personal characteristic of type necessary to support s. 15 dis- crimination claim. Act breaches s. 2(d) of Canadian Charter of Rights and Freedoms. Act provides minimum requirements necessary to protect freedom to organize but substantially impairs capacity of agricultural workers to meaning- fully exercise their right to bargain collectively. Violation of s. 2(d) not saved under s. 1. Objectives of pro- tecting family farm and farm pro- duction/viability substantial and pressing goals but legislation does not satisfy proportionality test. Fraser v. Ontario (Attorney General) (Nov. 17, 2008, Ont. C.A., Win- kler C.J.O., Cronk and Watt JJ.A., File No. C44886) Appeal from 144 A.C.W.S. (3d) 1023, 263 D.L.R. (4th) 425, 2006 C.L.L.C. ¦220-009, 79 O.R. (3d) 219, 137 C.R.R. (2d) 123 allowed. Order No. 008/323/320 (33 pp.). Courts JURISDICTION Tax Court had exclusive jurisdiction to determine whether services were exempt supply under Excise Tax Act (Can.) Tax Court has exclusive jurisdic- tion to grant relief consequent on invalid tax assessment. Plaintiffs commenced proposed class ac- CASELAW tion seeking recovery from Federal Crown of goods and services tax ("GST") on fees charged by pro- fessional portfolio managers who manage investments accounts on fully discretionary basis. Plaintiffs argued that services provided by portfolio managers were "exempt supply" not subject to GST. Plain- tiffs also gave claim constitutional law gloss, arguing that moneys col- lected by Crown as taxes without proper legal authority recoverable as matter of right on principles of restitution based on constitu- tional grounds. Federal Crown's motion to have action dismissed on basis that Ontario's Superior Court of Justice does not have ju- risdiction to decide it and on basis that amended statement of claim discloses no reasonable cause of action granted. Plain and obvious that plaintiffs' action had jurisdic- tional impediment. Pursuant to s. 12 of Tax Court of Canada Act, Tax Court has exclusive jurisdic- tion to determine whether services provided by portfolio managers are exempt supply under Excise Tax Act (Can.). If Tax Court has ex- clusive jurisdiction Superior Court does not have jurisdiction. Class Proceedings Act, 1992 (Ont.), es- sentially statute about procedure and does not confer substantive law jurisdiction on Ontario's Su- perior Court. Sorbara v. Canada (Attorney Gen- eral) (Nov. 25, 2008, Ont. S.C.J., Perell J., File No. 08-CV-353782- 00CP) Order No. 008/332/040 (14 pp.). Employment WRONGFUL DISMISSAL Employee failed to establish that res- ignation was constructive dismissal Claim for damages for amount owed under promissory note un- der training contract. Counter- claim for aggravated damages for constructive dismissal. Employer paid cost of training employee, a pilot, and structured it as loan to employee. Terms of loan were that if employee resigned within 24 months, employee had to repay loan, with credit given for time spent working for employer. From early on employee unhappy with co-pilot. Employee advised em- ployer that he would be leaving company. Employee maintained that employer could not hold him to promissory note under the cir- cumstances. Next day, employee sent e-mail to employer stating that he was resigning due to safety issues presented by co-pilot. Judg- ment for plaintiff for amount claimed in note. Counterclaim dis- missed. No independent evidence to support employee's contention that co-pilot was safety risk. If em- ployee truly believed there was a safety risk, he would have put it in writing. Employee did not like co- pilot, did not want to work with him and expected employer to replace him. However, employee raised safety as an issue only when he knew he was going to be held to terms of training bond. Hir- ing of co-pilot and events which followed did not constitute uni- lateral change in employment contract. Not established that there was an unsafe environment, or that employee even considered it an unsafe environment, or that employer failed to respond to em- ployee's concerns. Employee failed to establish that resignation was a constructive dismissal at law. Chartright Air Inc. v. De Paoli (Sep. www.lawtimesnews.com 23, 2008, Ont. S.C.J., Conway J., File No. 07-CV-339111 SR) Or- der No. 008/269/141 (12 pp.). Sale Of Land CONDITIONS PRECEDENT Purchaser failed to show basis for rescission Action by vendors for damages for breach of contract. Purchaser agreed to buy vendors' property, which included flea market. Agree- ment was conditional on purchaser hiring manager for flea market and vendors providing comprehensive information about property and flea market. Purchaser interviewed vendors' part-time flea market manager but took no other steps to find manager. Part-time manag- er was willing to work on full-time basis. Purchaser contended he was unable to find suitable manager and that financial information was deficient. Action allowed. All conditions had been fulfilled and purchaser failed to show basis for rescission. Purchaser did not ade- quately pursue search for manager. Part-time manager was prepared to work full-time hours and he had ability to do job. Purchaser did not provide satisfactory reasons for not hiring him or for not looking for someone else. Vendors had pro- vided all pertinent information in their possession. Purchaser had been given name of vendors' ac- countant but failed to contact her. Purchaser had not been induced by documents whose slight miscal- culations would not have provided basis for rescission. 1261468 Ontario Ltd. v. Huigen- bos (Oct. 14, 2008, Ont. S.C.J., Matheson J., File No. CV-06- 527) Order No. 008/297/001 (17 pp.). PAGE 15 Securities Regulation PROCEDURE Section 138.8 of Securities Act (Ont.) did not place onus on proposed defendants This was motion to compel de- fendants to file and serve affida- vits pursuant to s. 138.8(2) of Securities Act (Ont.). Plaintiffs brought action based on amend- ments to Act, which permit- ted statutory cause of action for misrepresentation in secondary market if plaintiffs obtained leave from court. Plaintiffs' position was that each of proposed defen- dants were required to file sworn affidavit upon which they could be cross-examined. Motion dis- missed. Gatekeeper provision was incorporated into Act requir- ing plaintiffs to obtain leave from court in order to bring action for secondary market liability. Plain- tiff had onus to demonstrate that proposed action was brought in good faith and that it had rea- sonable prospect for success at trial. Section 138.8 was enacted to protect defendants from coercive litigation and to reduce exposure to costly proceedings. No onus was placed on proposed defendants by s. 138.8. Plaintiff was required to demonstrate propriety of pro- posed claim before defendant was required to respond. Defendant was not obligated to file evidence or produce affidavit. Pursuant to s. 138.8(2) proposed defendant must file affidavit only where it intended to lead evidence of material facts in response to motion for leave. Ainslie v. CV Technologies Inc. (Dec. 3, 2008, Ont. S.C.J., Lax J., File No. 07-CV-336986PD1) Order No. 008/343/119 (12 pp.). LT Obtain Copies of Judgments from CaseLaw on Call Rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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