Law Times

Page 14 august 10, 2015 • Law Times www.lawtimesnews.com itself. ATL Trucking Ltd. v. Vancou- ver Fraser Port Authority (Apr. 8, 2015, F.C., Russel W. Zinn J., File No. T-196-15, T-192-15) 254 A.C.W.S. (3d) 8. ONTARIO CIVIL CASES Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Insofar as by-law gave city control over installation of community mailboxes, it was invalid or inoperative Applicant, federal Crown cor- poration, decided to convert to community mailboxes. Respon- dent city passed by-law that ef- fectively stopped applicant's im- plementation of transition from mail delivery to private homes to that of community mailbox- es. Applicant maintained that, insofar as by-law gave city con- trol over installation of com- munity mailboxes, it was inval- id or inoperative. Application granted. By virtue of its vague- ness and uncertainty, by-law was inapplicable, inoperative or otherwise without effect in respect of community mailbox- es. Community mailbox was within ambit of Mail Receptacle Regulation (Ont.). By-law would give city final say of location of community mailboxes after permit application process that had no relationship to temporal exigencies that faced applicant. Insofar as by-law sought to cre- ate permit application process determining location of com- munity mailboxes, it was of no effect. By bringing in location of community mailboxes with- in permit application process, pith and substance of by-law was encroaching upon exclusive domain of applicant and was ultra vires city's jurisdiction. By-law was significant serious restriction of applicant's fed- eral power to locate receptacles where it deemed appropriate, as part of mandate to receive, store and distribute mail. By-law was inapplicable and inoperative or without effect in respect of ap- plicant's community mailboxes. Canada Post Corp. v. Hamilton (City) (Jun. 11, 2015, Ont. S.C.J., Whitten J., File No. 15-52723) 254 A.C.W.S. (3d) 205. Employment Law WRONGFUL DISMISSAL Defendant did not establish that disclosure of memoranda was departure from established standards of business ethics Plaintiff was investment profes- sional and was employed by de- fendant for eight years. Plaintiff was director in defendant's cap- ital division at time of termina- tion. In performance review plaintiff was rated consistently as above average. Plaintiff had unblemished record of achieve- ment with defendant. Plaintiff provided specific precedents for private placement memoranda ("PPMs") for distressed debt funds to friend. Plaintiff attend- ed half hour meeting with de- fendant. Plaintiff had no notice of meeting. At meeting plaintiff was summarily dismissed from his employment with defendant allegedly for cause. Defendant asserted plaintiff breached written Code of Conduct and principles of ethical business dealings in disclosing PPM. De- fendant advised team of plain- tiff 's departure and told team plaintiff disclosed confidential information memorandum ("CIM"). Defendant consid- ered CIM and PPM to be inter- changeable. CIMs and PPMs were marketing documents de- signed to promote investment interest. Most of information in PPM could be pieced together from other sources and market research, but most of sensitive information in CIM was not available in public domain and could not be obtained through legitimate market research. Plaintiff did not consider PPM confidential. Plaintiff asserted defendant never treated PPMs as private confidential docu- ments; never signed confiden- tiality agreements in respect to PPMs; and treated them much like prospectus, which was publicly filed document. Plain- tiff sought damages. Claim al- lowed. Plaintiff 's employment was terminated without cause and appropriate notice period was 15 months. Defendant did not establish that PPM was confidential. Defendant did not establish that plaintiff breached Code of Conduct in providing PPM to friend. Defendant did not establish that disclosure of PPM was departure from es- tablished standards of business ethics. There was no legal cause to termination of plaintiff 's em- ployment without notice. It was not appropriate to sanction de- fendant with award of aggravat- ed damages. Defendant made it more difficult for plaintiff to find alternative employment, delayed his re-employment and contributed to conditions that led plaintiff to take employment in China. Plaintiff discharged his duty to mitigate damages. Lin v. Ontario Teachers' Pension Plan Board (Jun. 1, 2015, Ont. S.C.J., D.L. Corbett J., File No. CV-11-430085) 254 A.C.W.S. (3d) 113. Injunctions INTERLOCUTORY RELIEF Tenant's motion to restrain landlord from dealing with premises until determination of motion for summary judg- ment was granted on terms Landlord owned premises that had been used as automobile dealership. Tenant agreed to lease premises for 10-year term subject to three conditions. First condition was landlord having agreement reviewed by solicitor within two days. Second condi- tion was tenant providing ac- ceptable financial statements within five days. Third condi- tion was tenant being permit- ted to inspect premises for 30 days. Landlord never waived first condition, and landlord expressed dissatisfaction with tenant's financial statements. Nonetheless, landlord agreed to extend inspection period to 50 days. Tenant waived third condition after confirming it could act as dealership for par- ticular automobile manufac- turer. Landlord initially took position that no agreement had ever been agreed upon. Land- lord then took positions that tenant's waiver was one day late, that tenant's financial state- ments were unacceptable, and that landlord never waived first condition. Tenant commenced action against landlord for specific performance. Tenant brought motion for interlocuto- ry injunction restraining land- lord from dealing with premises until determination of motion for summary judgment. Mo- tion granted on terms. Tenant was required to post $150,000 as security, and tenant and two af- filiates were required to execute undertaking as to damages. Tenant established serious issue to be tried. Higher standard did not apply since outcome of mo- tion would not necessarily bring end to proceeding. Landlord's bases for claiming agreement was at end were contradicted by its prior positions. Landlord had not previously claimed agreement was at end but rather continued working towards ac- ceptable agreement. Estoppel was serious question to be tried. Meaning of certain correspon- dence raised serious question to be tried. Tenant's claim for spe- cific performance raised serious question to be tried. Evidence indicated there were no similar available properties for tenant's specific intended use. Tenant would suffer irreparable harm if interlocutory injunction was not granted. Balance of conve- nience favoured tenant if relief was limited to time required to determine motion for summary judgment. Crossview Developments Inc. v. 2262443 Ontario Ltd. (May. 5, 2015, Ont. S.C.J., Diamond J., File No. CV-15-521880) 254 A.C.W.S. (3d) 177. Mortgages DEFAULT Terms of chattel mortgage were clear and unambiguous Applicants purchased restau- rant business and assets from respondents with $50,000 pay- able on closing and $30,000 balance payable in three an- nual instalments and secured by chattel mortgage and general security agreement. Applicants purchased property from re- spondents at same time, with $50,000 payable on closing and $290,000 balance payable in an- nual instalments and secured by first mortgage against prop- erty. In June 2013, applicants were unable to make first instal- ment due under chattel mort- gage and second instalment due under mortgage, but respon- dents agreed to allow appli- cants to pay interest only while they attempted to sell property and business. In June 2014, ap- plicants were again unable to make instalments due and pro- vided post-dated cheques for interest only again, but respon- dents demanded immediate payment of $150,000 then, six days later with no further no- tice, took possession of business assets and that portion of prop- erty and prohibited entry to res- taurant. Application by mort- gagors for declaratory relief against respondent mortgagees, permanent injunction restrain- ing respondents from enforcing security, damages and punitive damages for unlawful seizure. Application dismissed. Terms of chattel mortgage were clear and unambiguous; loan was interest-free provided princi- pal was repaid as required, and penalty for failing to pay instal- ments on time was interest. In- terest penalty term was for sole benefit to respondents and in addition to their other rights and remedies, not in replace- ment of them. Applicants' in- terpretation they could choose interest penalty in place of other remedies would lead to absur- dity of being able to extend loan into perpetuity. Respondents' cashing of cheques following June 2013 default was at best estoppel for first missed instal- ments; new obligations and entitlement to make demand and enforce security arose in June 2014. Applicants admit- ted insolvency and respondents had not been paid anything on balance of purchase price, so there was no foreseeable end to default and balance of conve- nience favoured respondents. Determination of damages claim required viva voce evi- dence, though respondents' at- tempt to surreptitiously enforce security was improper and all steps taken beyond initial de- mand were unlawful. 2308537 Ontario Inc. v. 1233121 Ontario Inc. (Apr. 21, 2015, Ont. S.C.J., A.K. Mitchell J., File No. 132-2014) 254 A.C.W.S. (3d) 198. Police LIABILITY IN TORT Police officer's disregard for plaintiff 's rights warranted puni- tive damages equal to twice plaintiff 's aggregate award Plaintiff was black man who came to Canada as refugee in 2005 when he was 32 years old. Defendants were police officer Pa and police services board. In 2011, plaintiff was walking along sidewalk during cold win- ter evening when officer Pa and officer Po passed by in police vehicle. Officer Pa pulled along- side plaintiff, and officer Po asked him where he was going. After plaintiff asked why, offi- cer Pa got out of vehicle. When plaintiff refused to remove his hands from his pockets, officer Pa subdued him, during which time officer Pa punched plaintiff in face twice. Officer Pa hand- cuffed plaintiff and searched his pockets. Officer Pa left plaintiff in handcuffs in cold for 20-25 minutes before conducting computer searches and letting him go. Plaintiff brought action against defendants for damages for assault, battery, unlawful arrest, and constitutional viola- tions. Action allowed. Plaintiff was awarded $5,000 for general damages for battery, $2,000 for general damages for unlawful detention, $1,000 as nominal general damages for unlaw- ful searches, $1,000 as nominal general damages for failure to be informed of reason for deten- tion and right to counsel, and $18,000 for punitive damages. Plaintiff had been subjected to arbitrary detention. Officers had no reasonable suspicion of criminal conduct committed by plaintiff when they decided to initiate contact with him. Nei- ther officer was able to articu- late any reasonable basis to stop plaintiff to investigate criminal behaviour on his part. It was not crime to be rude or to try to keep one's hands warm. Plain- tiff 's evidence that officer Pa had punched him twice was ac- cepted and was substantiated by his injuries, evidence of physi- cian, and photos taken by plain- tiff. There was no lawful basis for officer Pa to search plain- tiff 's jacket pockets and wallet. In addition, it was apparent that plaintiff was not told why he was detained or informed of his right to counsel. Plaintiff 's time in handcuffs was also unlawful either as unreasonable exercise of police powers or as unlawful arrest. Officer Pa took law into his own hands and adminis- tered some street justice. Officer Pa's contumelious disregard for plaintiff 's rights warranted pu- nitive damages equal to twice plaintiff 's aggregate award so as to triple his recovery. Elmardy v. Toronto Police Ser- vices Board (May. 7, 2015, Ont. S.C.J., F.L. Myers J., File No. CV- 12-445971) 254 A.C.W.S. (3d) 217. Real Property GIFTS Family home was not trans- ferred as gift mortis causa Deceased M had been sole own- er of family home in Toronto. At time of her death in October 2011, M lived in home with her husband G and her son W. Her daughter S was married and lived on her own. On September 9, 2011, M had made will leav- ing her estate in equal shares to her husband, her daughter and her son W. Will provided that, if not transferred before her death, property was to be trans- ferred to G, W and S as joint tenants. On September 16, 2011, M transferred home to her hus- band and two children as joint tenants. Husband consented to transfer. Following death of M, court ordered home to be sold. W had made claim for support under Succession Law Reform Act (Ont.). He applied for de- termination that proceeds of sale of home formed part of es- tate of M. W claimed transfer CASELAW

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