Law Times

PAGE 14 CASELAW Internet and E-Commerce Law 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. FEDERAL COURT OF APPEAL Employment EMPLOYMENT RELATIONSHIP Legal tests to be applied to determine employment status were not considered This was appeal and cross- appeal from judge's deci- sion varying assessments. Appellant engaged truck driv- ers to provide services to cli- ent. Respondent determined that 96 truck drivers engaged by appellant in 2002, 2003 and 2004 were employees. Respondent assessed appel- lant for premiums payable under Employment Insurance Act (Can.), and contribu- tions payable under Canada Pension Plan. Appellant ap- pealed. Judge divided workers into two groups. One group was made up of 43 drivers who had signed agreement with appellant and other group was 53 drivers for whom there was no evidence of written agree- ment. Judge concluded that 53 drivers were employees of appellant but other 43 driv- ers were not. Appeal allowed; cross-appeal dismissed. Judge did not err in considering two groups of drivers separately. Judge appeared to have con- sidered that any driver who had signed one of 43 agree- ments was incorporated driv- ers but that finding was based on misapprehension of facts. Of 43 drivers who signed agreements only 2 were incor- porated drivers. As result of judge's approach to 43 drivers who had signed agreements, legal tests to be applied to de- termine whether they were employees were not consid- ered. Agreement signed by drivers contained clauses that suggested common in- tention that driver would be engaged as person carrying on own business but other factors must be considered. Appellant did not supervise drivers. Drivers did not pro- vide own trucks or equipment or bear any costs of operating trucks. Contracts provided right to driver to substitute another driver at own cost but there was no evidence that any driver exercised right. Drivers did not bear any financial risk related to any investment in trucks or equipment. Drivers did not bear any responsibil- ity for investing in anything that was required to fulfill contractual obligations or for managing work. Drivers did not negotiate rates of pay. Factors, on balance, weighed in favour of conclusion that drivers who signed agree- ments with appellant were employees, in contradiction to intention clauses. With re- spect to remaining 53 workers who did not sign agreements, judge's conclusion that driv- ers were not self-employed was reasonable. Judge did not make error of law or palpable or overriding error of fact. TBT Personnel Services Inc. v. Canada (Sep. 22, 2011, F.C.A., Sharlow, Pelletier and Stratas JJ.A., File No. A-388- 10) 207 A.C.W.S. (3d) 477 (19 pp.). ONTARIO CIVIL CASES Agency REAL ESTATE AGENTS AND BROKERS Commission term triggered by qualifying offer to purchase Action by realtor for $8,995 commission plus GST pur- suant to listing agreement. Defendant's property was list- ed for $199,900. Commission terms of listing agreement stated in consideration of plaintiff listing property, de- fendant agreed to pay broker- age a commission of 5% of the sale price or 4.5% if sold by plaintiff personally for any valid offer to purchase the property from any source obtained during the listing period and on the terms and conditions set out in agree- ment or such other terms and conditions as defendant may accept. Plaintiff obtained of- fer for property at listing price on last day of term of listing agreement, but defendant re- fused to accept. Defendant argued commission was only payable if he accepted offer and property sold. Defendant further argued that agreement was void because plaintiff was working for him and prospec- tive purchaser and because of- fer did not meet his conditions of 15-day closing, require- ment that buyer install septic tank and well and pay regis- tration fee. Action allowed. There was no doubt defen- dant began avoiding plaintiff and frustrating his attempts to sell property because he had decided not to sell un- less he was able to purchase a farm. "Sale price" in commis- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. sion clause of listing agree- ment referred to sale price in offer and did not require a completed sale. Commission term was triggered by qualify- ing offer to purchase. Offer in question was for listing price. Defendant did not respond to plaintiff 's attempts to contact him about offer until plain- tiff advised defendant com- mission would be payable regardless. Defendant then met plaintiff, refused to sign offer and complained plaintiff was harassing him. Land in question was bare and there was no evidence 15-day clos- ing date and septic tank and well requirement were im- portant terms. Furthermore, defendant had made previous counteroffers that removed these terms. Registration fee was a mere $70, so this was not a material condition. Plaintiff obtained offer matching list- ing price, so clearly did not breach his duties to defen- dant. Plaintiff acted in good faith throughout and invested significant work and expense. Defendant changed his mind and turned his back on the contract. Defendant to pay $8,995 commission plus GST. Defendant's offer to settle for $250 did not impact costs. Trial took two days, with some delay caused by plaintiff 's lawyer's absence. Defendant to pay $1,225 costs. T.L. Willaert Realty Ltd. v. Fody (Oct. 4, 2011, Ont. S.C.J. (Sm.Cl.Ct.), Searle D.J., File No. 144/10) 207 A.C.W.S. (3d) 615 (13 pp.). Evidence PRIOR JUDICIAL DECISION Government entitled to rely on judgments as precedents but not tender them into evidence Motion by Ontario govern- ment for ruling on admissi- bility of prior judgments from other provinces as evidence on jurisdictional motion. Ontario government enacted Tobacco Damages and Health Care Costs Recovery Act, 2009 (Ont.), permitting ac- tions to be brought against to- bacco companies for recovery of tobacco-related health care costs. Ontario government commenced action in Ontario against 14 tobacco companies for recovery of $50 billion in tobacco-related health care costs. Similar proceedings had been commenced in British Columbia and New Brunswick by governments of those provinces. Six to- www.lawtimesnews.com bacco companies claimed to be foreign companies beyond jurisdiction of provinces. Foreign tobacco companies unsuccessfully brought mo- tions in British Columbia and New Brunswick chal- lenging jurisdiction of those courts. Foreign tobacco com- panies commenced motion in Ontario for order setting aside service ex juris of state- ment of claim and staying or dismissing action as against them on basis of lack of juris- diction. Ontario government wanted to tender judgments of British Columbia and New Brunswick courts into evidence rather than just use them as authorities. Motion dismissed. Ontario govern- ment was entitled to rely on judgments as precedents but not tender them into evi- dence. Authority relating to use of factual findings in prior judgment was distinguish- able. In present case, Ontario government was not seeking to rely on factual findings but rather legal analysis and con- clusions. Ontario government was unable to point to any fac- tual findings underlying con- clusions in British Columbia and New Brunswick judg- ments that there was real and substantial connection with those provinces. Ontario v. Rothmans Inc. (Sep. 20, 2011, Ont. S.C.J., Conway J., File No. CV-09- 387984) 207 A.C.W.S. (3d) 485 (40 pp.). Family Law PROPERTY Wife prepared to move out of home rather than live there with husband in basement Husband, who was legally blind and had numerous medical problems for which he took medication, sought interim exclusive posses- sion of basement floor in matrimonial home until he obtained accommodation through low-income hous- ing. He did not oppose order granting wife exclusive pos- session of main floor of home. Wife opposed husband's mo- tion. She deposed that hus- band was verbally abusive and angry all the time. Wife stated that she had lived with this abuse for 19 years and could no longer deal with husband's behaviour. She deposed that she and children are fearful of husband. Wife deposed that if husband was successful on his motion to reside in base- ment, she would leave home with children and be forced to reside with them in women's shelter. Husband's motion was dismissed. Court accepted that wife was fearful of hus- band. Court could not say her fears were baseless. Because of her fear, she was prepared to move out of home rather than live there with husband in basement. This in turn would lead to children being moved from home. Best interests of children required that they live in matrimonial home. Wife was granted interim ex- clusive possession of whole of matrimonial home. Wife was also granted interim custody of three children of marriage. Meetke v. Meetke (Sep. 23, 2011, Ont. S.C.J., Shaw J., File No. FS-11-0201) 207 A.C.W.S. (3d) 520 (10 pp.). Insurance RELIEF FROM FORFEITURE Notice case of imperfect com- pliance, not non-compliance Husband and wife attended movie at theatre. Wife slipped on ice in parking lot and fell, sustaining serious permanent injuries. Husband and wife commenced action against owner of theatre, and main- tenance company hired to keep property clear. Owner cross-claimed against mainte- nance company. Maintenance company bankrupt and did not defend but owner noti- fied maintenance company's insurer of claim. Despite lengthy adjournment to per- mit insurer to participate, in- surer declined. Husband and wife settled with owner and obtained judgment against maintenance company. They brought action against in- surer pursuant to s. 132 of Insurance Act (Ont.), which allows third party to recover against insurer where insured failed to satisfy judgment. Alternatively, they applied for relief from forfeiture un- der s. 129 of Act. Husband and wife moved for summary judgment. Main issue wheth- er insurer received notice of claim in accordance with policy conditions. Motion judge granted summary judg- ment, finding owner's notice effective and, in any event, husband and wife entitled to relief from forfeiture. Insurer's appeal dismissed. Notice giv- en by owner effective but, in any event, husband and wife entitled to relief from for- feiture under s. 129 of Act. Relief from forfeiture applies to both statutory and policy conditions. Question of com- January 23, 2012 • Law Times

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