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PAGE 18 owing money to debtor while corporate garnishee denied owing money to garnishee D.W.. Gar- nishee D.W. requested adjourn- ment to file accounting report but never filed report. Instead, garnishee D.W. filed several hundred pages of financial docu- ments that were not germane. Garnishee D.W. was found to be indebted to debtor while corpo- rate garnishee was found not to be indebted to garnishee D.W.. Creditor was awarded $5,000 plus disbursements and GST as against garnishee D.W. while corporate garnishee was awarded $3,000 plus disbursements and GST as against creditor. Creditor was not required to pay costs of debtor examination as it was nec- essary in light of inconsistent and conflicting evidence of debtor. Creditor had not accepted rea- sonable offer to settle from cor- porate garnishee. Paulin v. P.C.M. Collections Ltd. (Oct. 24, 2008, Ont. S.C.J., Smith J., File No. CV-03-0525) Order No. 008/318/035 (5 pp.). Employment EMPLOYMENT RELATIONSHIP Plaintiff salesman not employee but nonetheless entitled to reason- able notice of termination Action by plaintiff for damages for breach of contract. Plaintiff was older man who worked for defendant as commission sales- man for about 26 months. Plain- tiff initially signed 12-month contract and considered himself to be independent contractor. Parties did not formally renew or extend contract after 12 months but otherwise continued to act in accordance with contract. Defen- dant terminated plaintiff without cause and without notice. Action allowed. Plaintiff was awarded $14,150.24 for unpaid commis- sions and $10,242.04 for pay in lieu of notice. Contract had continued as contract of indefi- nite term after initial 12-month term. Plaintiff was not employee but relationship was nonetheless one requiring reasonable notice of termination. Plaintiff devoted all of his time to defendant. De- fendant exercised control over how plaintiff conducted himself. Plaintiff was not operating as in- dependent entity with view to making profit apart from com- mission but rather was part of defendant's sales force. Moseley-Williams v. Hansler In- dustries Ltd. (Nov. 6, 2008, Ont. S.C.J., Brown J., File No. 04-CV-266146CM1) Order No. 008/316/106 (36 pp.). LABOUR RELATIONS Arbitrator erred in decision to reinstate bus driver after collision Application for judicial review of decision by arbitrator to re- instate employee bus driver fol- lowing collision caused by her carelessness. Employee was ter- minated for cause from her em- ployment. Arbitrator found that accident did not involve type of flagrant carelessness, negligence or disregard of ordinary safety precautions contemplated in col- lective agreement. Application granted. Decision was set aside and employee's discharge was re- instated. Arbitrator employment unreasonable and legally incor- rect analysis. Arbitrator wrongly concluded that he had power to substitute lesser penalty than dis- missal than that prescribed in col- lective agreement. Hamilton Street Railway Co. v. A.T.U., Local 107 (Oct. 24, 2008, Ont. S.C.J., Cunningham A.C.J.S.C., Hackland R.S.J. and Thomson J., File No. 07-426- JR) Order No. 008/309/045 (5 pp.). PUBLIC SERVICE Decision granting employer's application under s. 17 of Workers' Compensation Act (Ont.) upheld on review Application for judicial review of decision by tribunal granting employer's application for decla- ration that employee had no right to sue as employee of schedule 2 employer. Employee allegedly sustained injuries as result of nu- clear accident that occurred dur- ing course of his employment. Employee commenced action against employer for damages. Tribunal granted employer's ap- plication under s. 17 of Workers' Compensation Act (Ont.). Ap- plication dismissed. Tribunal was correct. Workers' Compensation Act applied. Dionne v. Ontario (Workplace and Insurance Appeals Tribunal) (Oct. 29, 2008, Ont. S.C.J. (Div. Ct.), Ferrier, Wilson and Ledermann JJ., File No. 357/07) Order No. 008/309/043 (7 pp.). WRONGFUL DISMISSAL Employee entitled to damages in lieu of 15 months' reasonable notice Defendant employed plaintiff for 16 years. Plaintiff aged 56 at time of dismissal. Plaintiff's an- nual income was $33,953. Plain- tiff received no performance ap- praisals, warning of dismissal or performance enhancement pro- grams. Plaintiff brought action for damages for wrongful dis- missal. Evidence did not sustain defence of cause. Fifteen months was reasonable notice period. De- fendant was entitled to reduction in damages because of partial fail- ure of plaintiff to mitigate. Plain- tiff was entitled to judgment for $28,235. Lee v. 1554478 Ontario Inc. (Oct. 30, 2008, Ont. S.C.J., Pitt J., File No. 07-CV-336598SR) Or- der No. 008/308/045 (5 pp.). Family Law PARENS PATRIAE POWER Unnecessary for court to exercise parens patriae jurisdiction for protection of children Application by father for Supe- rior Court of Justice to exercise its parens patriae jurisdiction to order that Ontario Court of Jus- tice ("OCJ") cede jurisdiction to Family Court of State of New York ("NYFC") for issues related to youngest child. Mother was Canadian citizen and father was American citizen. Parties moved back and forth between New York City and Toronto. After separation, mother returned to Toronto with child, and second child was born. OCJ awarded mother temporary custody of youngest child. Father had sole custody of oldest child pursuant to order issued by NYFC. Appli- cation dismissed. There was no legislative gap. This was not un- contemplated situations where it was necessary to use jurisdiction for protection of children. CASELAW Krymko v. Krymko (Oct. 29, 2008, Ont. S.C.J., Horkins J., File No. 06-FD-321950FIS) Or- der No. 008/309/051 (6 pp.). PROPERTY Husband's offer to purchase property in wife's name was approved Husband argued land was reg- istered in wife's name to protect assets from husband's creditors. Wife sought court approval of sale of property for $125,000 to individual. Husband made offer for $126,000. Wife feared hus- band did not have financing to close. Husband argued property was parties' recreational property and was matrimonial home. No real estate fees were payable on husband's offer. Husband's offer was approved. Wife was directed to acknowledge acceptance of agreement of purchase in writing subject to terms. Pellerin v. Pellerin (Oct. 23, 2008, Ont. S.C.J., Kane J., File No. 11,347-07) Order No. 008/302/177 (5 pp.). Interest CRIMINAL INTEREST RATE Three short-term loans found to have criminal interest rate Action by creditor for repayment of loans. Creditor alleged she pro- vided numerous loans to debtor, some of which were documented while others were not. Action al- lowed in part. Debtor was only liable for loans that he either signed for at time or admitted at trial. Three short-term loans were found to have criminal in- terest rate since annual interest rate would have exceeded 60%. Creditor was allowed interest up to 60% level since she had no in- tention of charging criminal rate. Interest in excess of 60% level was credited towards other loans. Wade v. Daley (Nov. 18, 2008, Ont. S.C.J., Gray J., File No. 2761/06) Order No. 008/325/001 (16 pp.). Landlord And Tenant REPAIR Roof leaks caused substantial interference with plaintiff's use and enjoyment Plaintiff leased commercial premises from defendant. Roof leaked. Roof was repaired num- ber of times. There was massive leak. Plaintiff claimed damages as result of leak from roof at leased premises. Order pursuant to minutes of settlement required defendant to replace roof and plaintiff was to vacate East build- ing. Plaintiff sought to recover costs of move and assessment of damages arising from roof leak. Plaintiff's decision that it could no longer operate out of East Building was reasonable. Lack of response from defendant to leak in roof over five years gave plain- tiff no other option but to move. Ongoing leaks caused serious and substantial interference with plaintiff's use and enjoyment and had significant impact on plain- tiff's business. Defendant failed to remedy breach necessitating plaintiff's move. Plaintiff was en- titled to damages and abatement of rent. Plaintiff had judgment for $233,843 plus interest. De- fendant's counterclaim was dis- missed. DMX Plastics Ltd. v. Misco Hold- www.lawtimesnews.com ings Inc. (Nov. 4, 2008, Ont. S.C.J., Wilson J., File No. 07- CV-330519 PDA1) Order No. 008/316/103 (20 pp.). Planning COMMUNITY IMPROVEMENT City's classification of transforma- tion project was reasonable Application for judicial review of decision by city to classify trans- formation project as Schedule A/ A+ project under Municipal Class Environmental Assessment. Ap- plication dismissed. City's classi- fication decision was reasonable. City's approach of dividing beau- tification project into specific in- terconnected components, rather than choosing catch all category was satisfactory and in substan- tial compliance with assessment. Applicant had unduly delayed raising concerns. William Ashley China Ltd. v. Toronto (City) (Oct. 29, 2008, Ont. S.C.J. (Div. Ct.), Brock- enshire, Wilson and Karakatsanis JJ., File No. 08/403) Order No. 008/315/019 (15 pp.). Professions CHIROPRACTORS Decision finding chiropractor guilty of professional misconduct for sexually abusing patient was set aside Appeal from decision by college finding appellant chiropractor guilty of professional misconduct for sexually abusing patient and revoking his certificate of regis- tration. Appellant had existing intimate relationship with com- plainant at time she became his patient. Appeal allowed. Deci- sion was set aside and matter was referred back for new hearing. College failed to consider appel- lant's pre-existing intimate rela- tionship with complainant before she became patient or to consider college's policies regarding treat- ment of family members. Leering v. College of Chiropractors of Ontario (Nov. 4, 2008, Ont. S.C.J. (Div. Ct.), Ray, Carnwath and Swinton JJ., File No. 233/08) Order No. 008/312/025 (9 pp.). Torts LIBEL AND SLANDER Letter was defamatory but pro- tected by qualified privilege Action by plaintiff for damages for libel. Plaintiff was older man who worked for defendant as commission salesman for about 26 months. Defendant termi- nated plaintiff without cause and without notice. Plaintiff started to work for competitor, and two of defendant's employees joined him within two years. Defen- dant learned persons connected with competitor were saying bad things about defendant. Defen- dant instructed counsel to send letter to competitor, plaintiff, and former employees alleging they had engaged in improper sales ac- tivities and demanding that they stop. Action dismissed. Letter sent by defendant was defama- tory since it accused recipients of unlawful conduct but defendant was protected by qualified privi- lege. Authority indicated defen- dant was entitled to take appro- priate steps to defend its business interests, and this included in- march 2, 2009 • Law Times forming others of their suspected violations of defendant's legal rights and proposed legal action. Defendant had not acted mali- ciously but rather took appropri- ate steps to respond to conduct that came to its attention. Letter was only sent to those involved so defendant had not exceeded lim- its of qualified privilege. Moseley-Williams v. Hansler In- dustries Ltd. (Nov. 6, 2008, Ont. S.C.J., Brown J., File No. 04-CV-266146CM1) Order No. 008/316/106 (36 pp.). ONTARIO CRIMINAL CASES Breathalyzer TIME ELEMENT No error in conclusion that breathalyzer tests administered "as soon as practicable" Accused appealed conviction for driving "over 80". There was a 37 minute interval between when ac- cused completed his conversation with his lawyer and the comple- tion of the administration of the second of two breathalyzer tests. Police attributed the delay to the fact another driver was at the po- lice station and was required to provide samples of her breath at basically the same time as accused and as a matter of chance that other driver went first. Appeal dismissed. Trial judge did not err in holding that the breathalyzer tests were administered "as soon as practicable" as required by stat- ute. Finding was a factual issue for the trial judge and Court not satisfied an error was made that would cause it to interfere with that finding. R. v. Burbidge (Oct. 28, 2008, Ont. C.A., Doherty, Feldman and MacFarland JJ.A., File No. C46973) Appeal from 72 W.C.B. (2d) 341 dismissed. Order No. 008/325/021 (3 pp.). Charter Of Rights SEARCH AND SEIZURE Officer had reasonable and honest belief that he could rely on results of roadside screening test Accused charged with driving "over 80" and of the Highway Traffic Act (Ont.) offence of driv- ing as a G2 class licensed driver with an alcohol concentration in his blood exceeding 0.0 milli- grams in 100 millilitres of blood. Accused's vehicle was one of a number an officer was investi- gating that was parked near a community centre. Officer later observed accused's truck driv- ing through the parking lot and was concerned the driver may have been consuming alcohol, as that was a common practice at that particular location. Offi- cer pulled over accused to ques- tion him and became suspicious suspecting accused had lit a ciga- rette to mask the scent of alco- hol. Officer's evidence was that after accused put his cigarette out at officer's request he could smell alcohol on his breath. Ac- cused denied having anything to drink when asked. Accused was asked to comply with a roadside screening test and brought to the cruiser for that purpose. Accused again denied having anything to drink before failing the road-