Law Times

Page 14 June 29, 2015 • Law Times www.lawtimesnews.com nent resident's counsel. Minister had argued against disclosure of FPAT as disclosure of FPAT doc- ument could lead to individuals learning methods of fraud detec- tion used by government. Per- manent resident requested costs on solicitor-client basis regard- less of outcome of judicial review. Request for costs denied. There was no evidence before court that Minister's refusal to disclose redacted documents unneces- sarily lengthened proceedings. Permanent resident's basis for requesting solicitor-client costs was that he asked for redacted documents to be disclosed and Minister defended redactions. This was not basis for solicitor- client costs. Minister was en- titled to object to disclosure of certain information pursuant to R. 318(2) of Federal Court Rules (Can.), and to defend his position in good faith. Minister did not unduly lengthen or delay pro- ceedings. It took approximately three months before counsel for permanent resident was able to view redacted documents. This delay hardly rose to level of "rep- rehensible, scandalous or outra- geous conduct" that was neces- sary to justify costs on solicitor- client basis. Boland v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2015, F.C., Yves de Montigny J., File No. T-1090-14) 252 A.C.W.S. (3d) 405. Privacy Legislation ACCESS TO INFORMATION Preparation fees respecting electronic records were authorized Canadian citizen made request for three sets of records. Records existed in electronic form and did not have to be created from other records by computer. Hu- man Resources and Skills De- velopment Canada provided first set, but calculated fees of $4,180 for other two and re- quired prepayment. Requestor complained to Officer of Infor- mation Commissioner. Parties brought reference. Current in- formation officer asserted that fees to search for and prepare disclosure information found in governmental electronic records could be levied only with respect to electronic records that could be created with aid of computers. Attorney General asserted that fee could be levied irrespective of whether or not record currently existed. Electronic records were not non-computerized records for purpose of search and prepa- ration fees authorized by s. 11(2) of Access to Information Act (Can.) and Access to Informa- tion Regulations (Can.). Regula- tions were amended in past and there was nothing to prevent fur- ther amendment now. Canada (Information Commis- sioner) v. Canada (Attorney Gen- eral) (Mar. 31, 2015, F.C., Sean Harrington J., File No. T-367-13) 252 A.C.W.S. (3d) 598. Constitutional Law CHARTER OF RIGHTS Protection against self-incrimina- tion did not apply in respect of any and all compelled information Plaintiff was American citizen with no status in Canada. In October 2011, he was criminally indicted in New York on numer- ous felony charges in relation to his involvement in organized on- line gambling enterprise. He en- tered into plea deal in July 2014. In June 2014, plaintiff sought to enter Canada as visitor. He was interviewed by Canada Bor- der Services Agency staff about whether he was inadmissible to Canada on basis of criminal- ity or organized criminality. He left Canada approximately three weeks later and subsequently filed statement of claim seeking damages for breaches of Charter right to be free from self-incrim- ination and not to be subjected to unreasonable search and sei- zure. Claim was struck as it did not name proper defendants. Plaintiff filed second claim that was virtually identical to initial claim. Defendants sought to strike out new claim as failing to disclose reasonable cause of ac- tion. Motion granted. There was no cause of action for sharing in- formation obtained from foreign national during immigration examination. Protection against self-incrimination applied only in respect of incriminating evidence. It did not apply in re- spect of any and all compelled information. Moreover, neither ss. 7 or 13 of Canadian Charter of Rights and Freedoms oper- ated as absolute bar on sharing with law enforcement officials information obtained during ad- ministrative investigation. Fur- thermore, plaintiff did not plead material facts to support his claim. He had not identified any incriminating evidence which he provided to officer during his in- terview, nor had he pleaded any facts to show that information he provided had been used, or could be used, to incriminate him in another proceedings. All other claims were merely speculative and were not supported by facts. Statement of claim was struck without leave to amend. Tomchin v. Canada (Mar. 30, 2015, F.C., Michael D. Man- son J., File No. T-2126-14) 252 A.C.W.S. (3d) 442. ONTARIO CIVIL CASES Bankruptcy and Insolvency PROPERTY Tax obligations were given no spe- cial protection under Bankruptcy and Insolvency Act (Can.) Applicant sought declarations that transaction between EFG and TFI was bulk sale; that transaction was void for failure to comply with Bulk Sales Act (Ont.) ("BSA"); that respondent was liable to account to trustee for value of property purchased in transaction; and for order requiring respondent to pay trustee consideration paid for transaction. Sale was found to be bulk sale and did not comply with BSA. Sale was declared void in part. Sale proceeds were used to pay secured creditor and TFI was not liable to any creditors for that amount. Parties could not agree on terms of formal order. Disagreement arose from fact that reasons failed to deal with disputed point. Plain and ordi- nary meaning of "value of stock in bulk" did not include HST exigible on goods sold. Principal meaning of value was worth, and there was no evidence that stock acquired by TFI was worth any- thing other than what it agreed to pay in arms' length transaction. TFI had an offset for tax. Tax obligations and HST obligations were given no special protection under Bankruptcy and Insol- vency Act (Can.), in bankruptcy situation. CRA might qualify as creditor under BSA, but that did not mean that HST owed to CRA qualified as part of value of stock in bulk that TFI acquired. Ellen's Food Group Inc. (Trustee of) v. TFI Foods Ltd. (Apr. 7, 2015, Ont. S.C.J., Penny J., File No. CV-14-10628-00CL) 252 A.C.W.S. (3d) 402. Conflict Of Laws JURISDICTION Ontario had closest connection to contract action and was appropriate forum Plaintiff was business incorpo- rated in Ontario with head of- fice in Toronto, and defendant was business incorporated in Wisconsin with head office in Wisconsin. Plaintiff brought ac- tion to collect royalty payments it claimed were due and owing un- der parties' contract and sought accounting of all of defendant's net sales, alleging it failed to provide accurate accounting as required by license agreement. Motion by defendant for order dismissing or staying action on basis court lacked jurisdiction simpliciter or was not convenient forum. Motion dismissed. De- fendant clearly carried on busi- ness in Ontario, where it had actual physical presence, adver- tised, and sold products directly related to calculation of royalty payments in dispute. Rebuttable presumption of jurisdiction ap- plied and defendant failed to rebut. Subject matter of litiga- tion was directly related to mon- ies made through defendant's worldwide sales, which included those in Ontario. Ontario had closest connection to action and was appropriate forum. License agreements were signed by par- ties in Ontario and Wisconsin, plaintiff planned to call Ontario witnesses while defendant did not provided specifics about in- tended witnesses. There was no ongoing litigation in Wisconsin to which this action could be joined and no evidence in record regarding why Wisconsin law would apply so presumption was court would apply lex fori. While preamble to original agreement stated it was entered pursuant to Wisconsin law, more recent agreement and amendment con- tained no forum selection clause, and Ontario could apply foreign law anyway. Defendant did not meet burden to displace plain- tiff 's choice of forum. Orthoarm Inc. v. American Or- thodontics Corp. (Mar. 30, 2015, Ont. S.C.J., Firestone J., File No. CV-14-511682) 252 A.C.W.S. (3d) 441. Contracts FRANCHISE AGREEMENTS Disclosure fell so far short of clear statutory requirements that franchisee entitled to rescission Parties entered into franchise agreement for operation of take- out pizza outlet. Pursuant to s. 5(1) of Arthur Wishart Act (Fran- chise Disclosure), 2000 (Ont.), franchisor provided franchisee with disclosure document. Fran- chisee started to run business but experienced financial dif- ficulties. Franchisee concluded that disclosure document was deficient and delivered notice of rescission and commenced ac- tion for rescission and damages. Franchisee brought motion for partial summary judgment seek- ing declaration that franchise agreement was validly rescinded and that franchisor was liable for damages. Motion judge found that disclosure document was materially deficient. Motion judge granted partial summary judgment declaring that disclo- sure document did not comply with Act, franchise agreement was validly rescinded and fran- chisor was liable for damages to be determined by master. Franchisor appealed. Appeal dismissed. There was conf lict in evidence as to nature and con- tents of disclosure document, but that conf lict was immaterial because motion judge found that franchisee was entitled to rescis- sion based on franchisor's own evidence concerning nature and extent of disclosure provided to franchisee. Summary judgment process provided motion judge with evidence required to effec- tively adjudicate dispute and trial was not required. Motion judge did not err in manner in which she applied to law to deficiencies. Failure to provide financial state- ments in accordance with s. 3(1) of Regulations, by itself, consti- tuted material deficiency. Disclo- sure provided fell so far short of clear statutory requirements that franchisee was entitled to rescis- sion pursuant to s. 6(2) of Act. 2240802 Ontario Inc. v. Spring- dale Pizza Depot Ltd. (Apr. 9, 2015, Ont. C.A., Doherty J.A., Gloria Epstein J.A., and M. Tull- och J.A., File No. CA C58100) Decision at 239 A.C.W.S. (3d) 359 was affirmed. 252 A.C.W.S. (3d) 456. Courts ABUSE OF PROCESS Decision striking claim upheld on appeal Appeal from order dismissing appellant's action as against all defendants except appellant's former landlord, on basis that ac- tion was frivolous and vexatious and could not possibly succeed. Motion judge found incidents pleaded and relief sought in rela- tion to them concerned redesign of social welfare and legal ser- vices systems of Ontario. Motion judge struck out appellant's state- ment of claim in its entirety, with leave to deliver amended state- ment of claim within 60 days against former landlord. Appel- lant alleged procedural irregu- larities and that motion judge erred, trivialized or wantonly misquoted appellant in his rea- sons. Appeal dismissed. Matters raised by appellant did not con- stitute ground of appeal tenable at law from motion judge's rul- ing. Appellant's complaints ei- ther misconstrued requirements of Rules of Civil Procedure (Ont.), mischaracterized motion judge's reasons, or raised specu- lative and/or bald assertions of past or future alleged injury to himself or others. Brown v. Lloyd's of London In- surance Market (Apr. 9, 2015, Ont. C.A., E.A. Cronk J.A., E.E. Gillese J.A., and David Brown J.A., File No. CA C59949) 252 A.C.W.S. (3d) 464. Employment WRONGFUL DISMISSAL Program director failed to establish constructive dismissal arising from change of duties Employer was regional health service. Employee was nurse who worked her way up to one of seven health program direc- tor (HPD) positions. HPD's du- ties changed on ongoing basis. Employee took on interim posi- tions as vice president in 2005 and 2008. Employee's duties changed again when returned to HPD position in September 2010. In March 2011, employee was advised of another change in duties relating to opening of new hospital. Employee found this change upsetting and went on sick leave. Discussions ensued to clarify employee's role. Em- ployee took summer months to consider her position and take care of her health. Employee ad- vised employer in July 2011 that she considered herself to have been constructively dismissed. Employer advised in August 2011 that it disagreed and that employee's position was still available. Employee resigned af- ter her sick leave expired in Sep- tember 2011. Employee brought action against employer for dam- ages for constructive dismissal. Action dismissed. Employee failed to establish constructive dismissal. Evidence confirmed employee and other HPDs nec- essarily operated in environment of change because of nature of hospital services being provided to community. Prior to March 2011, everyone within healthcare system undoubtedly knew huge change in operations was com- ing because of construction of new hospital. Employer's inten- tion and obligation to get things right during and after transition was clear. Employee failed to establish there was abusive be- haviour that made her working conditions intolerable so as to constitute grounds of construc- tive dismissal. Evidence estab- CASELAW

• Cover