Law Times

Law Times • sepTember 7, 2009 termination of employment of worker and worker was entitled to notice or termination pay and severance pay. Application for judicial review was allowed. Arbitrator decided grievance on basis of frustration provisions without giving parties opportu- nity to address issue. Arbitrator's decision was unreasonable on merits. Arbitrator did not deter- mine date at which employment was terminated. Arbitrator did not address evidence suggesting there was continuing employ- ment relationship until worker accepted employment elsewhere. Arbitrator's decision on timeli- ness objection to grievance was unreasonable. Decision to ex- tend time-limits was reasonable. Tembec Enterprises Inc. v. U.S.W. I.W.A. Council 1-1000 (June 12, 2009, Ont. S.C.J. (Div. Ct.), Swinton, Low and van Rensburg JJ., File No. 124/08) Order No. 009/167/017 (11 pp.). Family Law SUPPORT Fact that wife remarried wealthy man did not provide basis for variation of minutes of settlement Appeal by husband from dis- missal of motion to vary sup- port based on fact that wife had remarried and was being sup- ported by new husband. Min- utes of settlement provided for review of support in fi ve years time and also provided for re- view on basis of material change in circumstances. Motion judge determined that at time minutes of settlement were entered into husband knew wife was in seri- ous relationship that was head- ing toward marriage. Motion judge concluded that husband must have factored in possibil- ity of wife's remarriage when he signed minutes of settlement and had not asked for term that spousal support would be re- viewed or reduced on remarriage but had accepted term providing for review after fi ve years. Ap- peal dismissed. Prospect of wife's remarriage to wealthy man was known at time minutes of settle- ment were entered and fact that she did remarry could not be re- lied upon as basis for variation. Bhupal v. Bhupal (June 26, 2009, Ont. C.A., Sharpe, LaForme and Watt JJ.A., File No. C49567) Order No. 009/180/047 (5 pp.). Insurance AUTOMOBILE INSURANCE Insurer not entitled to reduction of long-term disability benefits Plaintiff was seriously injured in car accident. Plaintiff was in- sured with P. under motor vehi- cle policy and also insured under group policy in eff ect between her employer and M.. Plaintiff entered into settlement with M. in which she released all entitle- ment to past, present and future benefi ts under M.'s policy for $57,500. After settlement, P. re- fused to pay income replacement benefi ts ("IRBs") to plaintiff , contending that it could deduct any long-term disability ("LTD") payments that might have been payable had plaintiff successfully litigated with M.. Trial judge did not err in fi nding that P. was not entitled to reduction for LTD quantum of IRBs otherwise pay- able to plaintiff . Plaintiff did not abandon or withdraw her ap- plication for LTD benefi ts, she merely compromised her claim as result of mediation. IRBs are to be reduced as LTD being re- ceived as result of accident. Leg- islation does not entitle P. to set off hypothetical benefi ts applied for but refused. Vanderkop v. Personal Insur- ance Co. of Canada (June 24, 2009, Ont. C.A., Cronk, Gillese and Armstrong JJ.A., File No. C48964) Appeal from 169 A.C.W.S. (3d) 54 dismissed. Or- der No. 009/176/018 (8 pp.). LIABILITY INSURANCE Insurer had duty to defend Plaintiff claimed damages result- ing from leaks in roof membrane was caused by negligence of ap- plicant or its subcontractors. Ap- plicant argued claim was covered by liability insurance policy and insurer had duty to defend. In- surer refused to defend action. Applicant claimed insurer had to pay applicant's independent counsel's legal fees. Application for declaration and order that insurer had to provide defence was allowed. Insurer had duty to defend because there might be coverage for resulting damage during policy period. Applica- tion for order requiring insurer to pay professional fees and dis- bursements billed by applicant's defence counsel was dismissed. Alternative request for relief that insurer pay defence of applicant by paying professional fees and disbursements billed by defence counsel mutually agreeable to applicant and insurer was ac- cepted subject to conditions. PCL Constructors Canada Inc. v. Lumbermens Casualty Co. Kemper Canada (June 25, 2009, Ont. S.C.J., Th orburn J., File No. 06-CV-316950 PD1) Or- der No. 009/180/025 (17 pp.). Labour Relations ARBITRATION Students were members of bargaining unit Arbitrator upheld union griev- ance. Arbitrator found appli- cant violated collective agree- ment by requiring students in course to mark work of other students without pay. Arbitrator concluded students were mem- bers of bargaining unit. Appli- cation for judicial review was dismissed. Arbitration award was reasonable. It was not un- reasonable for arbitrator to have decided grievance in same way and other grievance that had fact pattern with no material distinction. Material fact was students performed bargaining unit function. Fact students were enrolled in same course was not material fact. Governing Council of the Uni- versity of Toronto v. C.U.P.E., Local 3902 (June 15, 2009, Ont. S.C.J. (Div. Ct.), Swinton, Low and Bryant JJ., File No. 101/09) Order No. 009/167/005 (5 pp.). Landlord And Tenant EVICTION Landlord not entitled to eviction of tenant for landlord's own use and occupation CASELAW Appellant landlord sought to evict tenant on basis appellant wished to occupy rental unit for own use. Tenant suff ered from fi nancial, physical and mental health challenges and relied on sister who occupied another unit in building. Board dis- missed application for termina- tion and eviction for landlord's own use and occupation. Board dismissed appellant's request to review order. Board found evic- tion to tenant seemed more un- fair than denying landlord ap- plication to evict. Board found application was made in good faith. Appeal was dismissed. Board did not fail to consider landlord's property rights or ab- sence of misconduct. Decision was not unreasonable. Caputo v. Newberg (June 17, 2009, Ont. S.C.J. (Div. Ct.), Lederman, Karakatsanis and van Rensburg JJ., File No. 596/07) Order No. 009/180/041 (6 pp.). SUPREME COURT OF CANADA Evidence HEARSAY Trial judge did not err in admitting victim's statement under "state of mind" exception to hearsay rule Accused, G. and H., charged with fi rst degree murder. Wit- ness testifi ed that shortly be- fore killing, victim said to her "[i]f anything happens to me, it's your cousin's family". Wit- ness understood that victim was referring to G. and that he was afraid of G.. G. convicted as charged and H. convicted of manslaughter. Court of Appeal allowed appeals and ordered new trial. Crown appealed. Ap- peals allowed and convictions restored. Trial judge did not err in admitting victim's state- ment to witness under "state of mind" exception to hearsay rule. Statement not admitted for im- proper purpose of proving G.'s state of mind but for truth of fact that victim feared G.. Vic- tim's fear of G. highly relevant to motive and, in turn, identi- fi cation. Victim's state of mind had elevated importance in light of defence argument that someone other than G. might have had motive to harm vic- tim. Victim's particularized fear of G. tended to rebut this po- sition. Trial judge's conclusion that statement's probative value outweighed possible prejudicial eff ect was entitled to deference. Trial judge's limiting instruc- tion in respect of victim's state- ment to witness was adequate. Judge properly instructed jury not to use statement as proof of G.'s state of mind, or to con- clude that G. in fact intended to harm victim. Judge correctly explained that sole permissible use of statement was as proof of victim's state of mind shortly be- fore his death. Judge also clearly qualifi ed assertion that state- ment could be used to elimi- nate others who might want to harm victim with phrase "as far as [the victim] was concerned." LeBel and Fish JJ. dissenting. www.lawtimesnews.com R. v. Griffi n (June 18, 2009, S.C.C., Binnie, LeBel, Des- champs, Fish, Abella, Char- ron and Rothstein JJ., File No. 32649; 32650) Appeal from 80 W.C.B. (2d) 306 allowed. Order No. 009/173/002 (57 pp.). ONTARIO CRIMINAL CASES Indictment And Information VALIDITY Section 72(1) of Child and Family Services Act (Ont.) created single offence, not continuing offence Accused teachers charged with failing to report forthwith suspi- cions that child in need of pro- tection, contrary to s. 72(1) of Child and Family Services Act, R.S.O. 1990, c. C.11. Charges quashed on basis that they were not laid within six months of alleged off ence and therefore barred by limitation period in Provincial Off ences Act, R.S.O. 1990, c. P.33. Crown's applica- tion for order that charges be al- lowed to proceed was dismissed. Crown appealed. Appeal dis- missed. Section 72(1) created single off ence, not off ence that continued until report made. Off ence complete once no re- port made forthwith. Th is inter- pretation best achieved statutory purpose of protecting children by emphasizing timeliness of re- port, rather than duty to report. Charges statute-barred. R. v. Newton-Th ompson (May PAGE 15 28, 2009, Ont. C.A., Feldman, Armstrong and MacFarland JJ.A., File No. C49348) Order No. 009/152/006 (20 pp.). Search and Seizure RETURN OF ITEMS SEIZED Section 490(8) of Criminal Code set out threshold requirement of hardship before application per- mitted under s. 490(7) Accused charged with conspira- cy to traffi c. Police seized vehicle from accused pursuant to Con- trolled Drugs and Substances Act (Can.). Police obtained de- tention order and then manage- ment order. Crown intended to apply for forfeiture if accused convicted. Accused applied for return of vehicle pursuant to s. 490(7) and (9)(c) of Criminal Code. Application dismissed. Section 490(8) set out threshold requirement of hardship before application permitted under s. 490(7). Application failed as accused presented no evidence of any hardship. In any event, accused could not have satis- fi ed court that vehicle not re- quired for purpose of investiga- tion, preliminary inquiry, trial or other proceeding. Accepting that "other proceeding" would include potential forfeiture hear- ing, court had no jurisdiction to return vehicle at this juncture. Further, notwithstanding exis- tence of suffi cient grounds to vacate management order, police still entitled to detain vehicle as off ence-related property. R. v. Nikitczuk (June 10, 2009, Ont. S.C.J., Walters J., File No. 1607/09) Order No. 009/166/161 (7 pp.). LT Starting from $62.50 per month More value for your money! 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