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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Employment WRONGFUL DISMISSAL Evaluating whether reasonable person in employee's position would have accepted offer in mitigation required application of objective standard Employee dismissed from posi- tion as business agent in respon- dent union's office when new union executive elected. He had been employed as such for over 23 years. Incoming president faxed employee termination letter and commenced discus- sions with counsel. No resolu- tion reached. During exchange of correspondence union con- tinued to pay employee salary and benefits. Employee sought settlement which would see him retire after working for further 12 months and having his wife replace him as union's business agent. Union's legal counsel re- quested employee to return to employment to serve out balance of notice period. Letter stated that refusal would constitute just cause and union would for- mally terminate without notice. Employee refused to return un- less union rescinded termination letter but union refused to. Trial judge found employee wrongful- ly dismissed and entitled to 22 months' notice. Court of Appeal set aside damage award, finding that employee failed to mitigate because he acted unreasonably with respect to union's job of- fer. Appeal to Supreme Court of Canada dismissed. Employer's requirement to pay damages in lieu of notice subject to em- ployee making reasonable effort to mitigate by seeking alternate source of income. No principled reason to distinguish between wrongful dismissal and con- structive dismissal when evaluat- ing need to mitigate. Requiring employee to mitigate by taking temporary work with dismissing employer, in absence of barriers to re-employment, consistent with notion that damages meant to compensate for lack of notice. Evaluating whether reasonable person in employee's position would have accepted union's of- fer required application of objec- tive standard. Trial judge erred in law in applying purely subjective test and failing to consider rel- evant evidence. Strong evidence employee prepared to resume old job and relationship between employee and union not serious- ly damaged. Employee's requests for rescission of termination let- ter, re-establishment as indefinite term employee and that wife be given contract of employment unreasonable. Not objectively unreasonable for employee to re- turn to work to mitigate. Evans v. Teamsters Local Union No. 31 (May 1, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Rothstein JJ. and dissenting - Abella J., File No. 31733) Ap- peal from 165 A.C.W.S. (3d) 680; 2006 C.L.L.C. ¶210-045; 53 C.C.E.L. (3d) 177; 381 W.A.C. 19 allowed. Order No. 008/126/001 (83 pp.). Torts NEGLIGENCE No justification for recognizing new duty of care between owner and subcontractor in context of tendering process P.W. awarded contract for con- struction of building to non- compliant bidder. Tendering documents indicated propo- nents could bid in conjunction with other entities as joint ven- ture. Contractor which should have been awarded contract and subcontractors associated with it sued. Contractor settled with P.W. but subcontractors contin- ued with litigation. Trial judge found P.W. did not owe duty in contract but did owe duty in tort to subcontractors. Court of Appeal's decision finding new duty of care should not be recog- nized in circumstances upheld. JULY 14/21, 2008 / LAW TIMES COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. Subcontractors' damages solely financial and qualified as pure economic loss. Claims did not fall within pre-existing category in respect of which duty of care has been recognized. Relational economic loss did not apply be- cause no damage to contractor's property. No justification for recognizing new duty of care be- tween owner and subcontractor in context of tendering process. Close relationship but fact that subcontractors had opportunity to form joint venture, thereby becoming parties to contract was overriding policy reason that tort liability should not be recog- nized. Permitting action in tort when commercial parties have deliberately arranged affairs in contract would constitute unjus- tifiable encroachment into realm of contract. Design Services Ltd. v. Canada (May 8, 2008, S.C.C., McLach- lin C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Roth- stein JJ., File No. 31618) Appeal from 149 A.C.W.S. (3d) 1010; 272 D.L.R. (4th) 361; 352 N.R. 157; 42 C.C.L.T. (3d) 1; 58 C.L.R. (3d) 153 dismissed. Or- der No. 008/133/043 (34 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY Answers were not truly responsive to undertakings Appeal from dismissal of mo- tion to set aside ex parte order striking appellant's pleading for failure to comply with order that appellant answer undertakings. Appellant contended that under- takings had been answered prior to hearing of ex parte motion and that order striking pleading ought not to have been granted. Appeal dismissed. Although material filed provided answer to undertakings many answers were simply unhelpful or un- responsive. Answers were not truly responsive to undertakings given and did not demonstrate honest attempt to obtain and provide information and docu- ments sought. It was therefore reasonable to conclude based on materials filed that appellant had not provided proper answers to undertakings and had not com- plied with order. Willi v. Chapple (Mar. 11, 2008, Ont. C.A., Winkler C.J.O., MacPherson and Rouleau JJ.A., File No. C46499) Order No. 008/079/051 (3 pp.). SUMMARY JUDGMENT Not plain and obvious that no duty of care could be recognized Plaintiff 's husband contact- ed defendant about plaintiff wife. Defendant was licensed psychiatrist. Defendant indi- cated defendant could not take plaintiff wife on as patient, but told plaintiff husband to take plaintiff wife to unlicensed ex- perimental counselling centre. Plaintiff brought action for inef- fective and harmful psychother- apy provided to plaintiff wife. Defendant brought motion for order dismissing action. Motion was dismissed. It was not plain and obvious that no duty of care could be recognized. There was no prejudice or miscarriage of justice resulting from service oc- curring 15 days late. Stone v. Hipp (Mar. 17, 2008, Ont.S.C.J., Harris J., File No. C-141/06) Order No. 008/079/016 (25 pp.). Corporations GENERAL Non-solicitor could represent corporate defendant Motion by plaintiff for order that defendant be compelled to appoint solicitor of record to represent corporation in case involving allegations that cor- poration was negligent with respect to concrete foundation that it constructed for plaintiff. Rule 15.01(2) of Rules of Civil Procedure (Ont.), required cor- porate litigant to be represented by solicitor except with leave of court. There was already out- standing order whereby R. had already been granted permission to represent corporation in this action. Motion dismissed. In determining whether to grant leave to corporation to be rep- resented by non-solicitor court should take into account inter- nal structure of corporation, authority of proposed represen- tative to act for corporation, nature of action, complexity of action, and any prejudice that may be caused by opposing par- ties. Here issues were of modest complexity. Non-solicitor repre- sentative of corporation, R., had authority to speak for corpora- tion and had technical knowl- edge to address relevant issues. Fact that R. did not have legal background would not be preju- dicial to plaintiff. Piscitello v. 652107 Ontario Ltd. (Mar. 25, 2008, Ont.S.C.J., Henderson J., File No. 6368/95) Order No. 008/086/122 (6 pp.). Family Law PROCEDURE Motion to remove child as party to proceedings was allowed Child, aged 23, had develop- mental disabilities. Child was child of marriage. Parents had joint custody. Mother believed child was manipulated by and under control of father. Father paid child legal fees. Father was responsible for transport- ing child to and from lawyer's office. Child expressed inter- est to live with father. Father was awarded interim custody. Mother's motion to remove child's solicitor of record was dismissed. Facts did not sup- port conclusion lawyer was not representing child in manner consistent with professional obligations. Mother's motion to remove child as party to pro- ceedings was allowed. There was no substance to allegation child was incapable of understanding issue. Child was not required to make decision in custody dis- pute. Rule 7.04(3) of Rules of Practice (Ont.), had no applica- When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S www.lawtimesnews.com Untitled-10 1 11/6/07 3:56:47 PM

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