Law Times

Page 14 May 11, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment WRONGFUL DISMISSAL Reasonable for employer to request further medical information from worker upon return to work Appellant worker was employed by respondent employer as opera- tor of grain terminal for approxi- mately 20 years. Worker left work ill and was hospitalized. Worker filed claim with Workplace Safety and Insurance Board (WSIB) claiming that symptoms he ex- perienced were possible result of toxic allergic reaction to grain dust. Worker notified employer that his doctor advised him he could not return to work due to health concerns. WSIB informed worker that evidence did not establish occupational disease. Worker presented two-line note from family doctor to employer that stated that he was capable of returning to his job. Employer told worker he could not return to work until he presented better doctor's note. Employer placed worker on temporary layoff. Seasonal lay-offs occurred every year. Worker filed complaint of unjust dismissal. Adjudicator de- termined that employer had con- structively dismissed worker and that dismissal was unjust. Em- ployer applied for judicial review. Judge found that it was clear that worker's claim only related to con- versation he had with employer that he could not return to work until he provided better doctor's note and not to seasonal lay-off notice. Judge found that adjudi- cator's decision was unreason- able because it had nothing to do with conversation. Adjudicator's decision was set aside. Worker ap- pealed. Appeal dismissed. Judge properly selected reasonableness as standard of review. Judge prop- erly found that worker's com- plaint related to conversation he had with employer concerning providing better doctor's note. Adjudicator properly outlined test for constructive dismissal, but there was no basis upon which he could have reasonably concluded that employer constructively dis- missed worker. Conversation that occurred between parties did not amount to change in fundamen- tal term of worker's employment. It was clear that worker contin- ued to have substantial health problems. In circumstances, it was reasonable for employer, who had obligation to ensure safety of its employees, to request further medical information from worker upon his return to work. Two-line doctor's note worker provided did not contain enough informa- tion for employer to satisfactorily conclude that worker could safely return to work. Donaldson v. Western Grain By- Products Storage Ltd. (Mar. 4, 2015, F.C.A., Johanne Gauthier J.A., David G. Near J.A., and A.F. Scott J.A., File No. A-360-12) De- cision at 218 A.C.W.S. (3d) 855 was affirmed. 251 A.C.W.S. (3d) 143. TAX COURT OF CANADA Constitutional Law TAXATION Human rights did not include right not to pay tax Corporation wholly owned by taxpayer paid taxpayer certain amounts in 2007 through 2010 taxation years. Taxpayer reported some amounts as employment income, and other amounts were reported by corporation and tax- payer as subcontract payments. Canada Revenue Agency treated difference between what was re- ported by taxpayer and what was paid to him by corporation as in- come for 2007 through 2010. Tax- payer appealed. Appeal dismissed. Human rights as advanced in Ca- nadian Constitution, Canadian Charter of Rights and Freedoms and international human rights treaties did not extend to not pay- ing tax and did not include right not to pay tax. Taxpayer acknowl- edged that if his arguments did not succeed, amounts reassessed and penalties imposed would be properly payable. R. v. Davis (Mar. 17, 2015, T.C.C. [Informal Procedure], Patrick Boyle J., File No. 2014-3081(IT)I) 251 A.C.W.S. (3d) 170. ONTARIO CIVIL DECISIONS Civil Procedure DEFAULT Motion judge erred in setting aside default judgment Respondents, injured in car ac- cident, applied for statutory ac- cident benefits from own insurer, Intact Insurance. Intact paid most benefits, but claimed that two health service providers, Osler Rehabilitation and Assessment Direct, submitted invoices for excessive amounts and number and frequency of visits could not be justified. Intact settled with respondents. Respondents agreed to release Intact and Intact agreed to hold harmless and indemnify respondents from "any claims" brought by two service providers for outstanding accounts. Osler and Assessment sent demand let- ters to respondents, but Intact re- fused to act because neither Osler nor Assessment had commenced action. Respondents neverthe- less commenced actions alleging Intact breached hold harmless agreements. Intact delivered no- tice of intent to defend in each action, but did not deliver state- ments of defence. Respondents moved promptly to obtain default judgment and noting of default. Intact moved to set aside defaults. Motion judge accepted that In- tact moved promptly, had at least arguable defence and that setting aside defaults would not adversely affect integrity of administration of justice but refused to set aside defaults on ground Intact did not have reasonable explanation for default and respondents would be more prejudiced by granting Intact indulgence than Intact would be prejudiced by refusal to set aside defaults. Intact's appeal allowed. Court has discretion to set aside default "on such terms as are just". Motion judge consid- ered relevant factors, but erred in refusing to set aside defaults because Intact had reasonable ex- planation and respondents would not have been prejudiced. Proper interpretation of hold harmless agreements was fundamental to Intact's submission it had reason- able explanation but motion judge stopped short of interpreting the agreements. On plain wording, agreements did not come into ef- fect until either Osler or Assess- ment sued respondents. Letters were "demands" for payment, not "claims". Although Intact ought to have delivered statement of defence, it had reasonable expla- nation or excuse for not doing so. Setting aside defaults would cause no prejudice to respondents. In- tact could not prevent either ser- vice provider from suing respon- dents and was entitled to resist paying full amounts on ground accounts were allegedly unjusti- fied. Intact would be prejudiced if defaults not set aside because it could become liable for outstand- ing accounts it disputed and may not have obligation to pay. Short- ness of period between delivery of statement of claim and noting of default, 45 days, was consider- ation on question of prejudice. Intact Insurance Co. v. Kisel (Mar. 26, 2015, Ont. C.A., Laskin J.A., Simmons J.A., and Watt J.A., File No. CA C59338, C59339) Deci- sion at 243 A.C.W.S. (3d) 556 was reversed. 251 A.C.W.S. (3d) 51. Elections FINANCES Financial agent not permitted to extend deadline for filing nomination campaign return Application by financial agent for nominated candidate in next federal election to extend dead- line for filing contestant's nomi- nation campaign return. Under Canada Elections Act, financial agent's failure to provide nomina- tion campaign return was offence that was punishable by fine and imprisonment. Financial agent stated that her failure to file return was due to inadvertence or honest mistake of fact in that she believed that it would not be required and that only after the filing deadline did she learn that nomination campaign return had to be filed. Motion dismissed. To disregard requirement that application to extend deadline be filed with chief electoral officer, and two-week limitation on making applica- tion to court to seek extension of deadline imposed by Act, would be inconsistent with presumption that Parliament avoided superf lu- ous or meaningless words. Both pre-conditions were not intended to be ignored. D'Agostino v. Elections Canada (Mar. 6, 2015, Ont. S.C.J., M. Fa- ieta J., File No. CV-14-518251) 251 A.C.W.S. (3d) 83. Torts LIBEL AND SLANDER Postings on website bulletin board were defamatory Plaintiff publicly traded company was engaged in graphite mining and exploration. Individual plain- tiff was president and CEO of company. Company was engaged in development of mining project in northern Quebec. Company had raised $30 million dollars to develop site, but $165 million was required to fully develop produc- ing mine. Funds would be raised through investment community on issuing stock. On-line bulletin board website allowed investors caseLaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. 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More detail and a wider scope of legal contact information for Ontario than any other source: ȕ Over 27,000 lawyers listed ȕ Over 9,000 law firms and corporate offices listed ȕ Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: ȕ Federal and provincial judges ȕ Federal courts, including a section for federal government departments, boards and commissions ȕ Ontario courts and services, including a section for provincial government ministries, boards and commissions ȕ Small claims courts ȕ The Institute of Law Clerks of Ontario ȕ Miscellaneous services for lawyers Untitled-2 1 2015-05-06 9:00 AM

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