Law Times

Page 14 OctOber 5, 2015 • Law times www.lawtimesnews.com judge found mother in con- tempt and ordered she pay fine of $5,000 plus costs of $10,000 to be set off against child sup- port arrears. Mother's appeal was dismissed. Mother again appealed finding of contempt. Appeal dismissed. Access or- der clearly and unequivocally set out dates and time of access visits. Order provided suffi- cient clarity for mother to un- derstand allegations giving rise to contempt motion. Evidence justified motion judge's finding of contempt beyond reasonable doubt. Appeal judge did not err in finding that penalty imposed by motion judge was modest in circumstances. While decision to set-off costs was unusual, or- der was made with child's best interests in mind. Motion judge did not err in not bifurcating liability and penalty phases of contempt motion. Rego v. Santos (Jul. 21, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C58282) 256 A.C.W.S. (3d) 79. Employment WRONGFUL DISMISSAL Employee's action could not succeed in face of undis- puted fact employer gave employee written notice of his dismissal without cause In July 2010, defendant em- ployer hired plaintiff employee as sales representative. Parties entered into written employ- ment contract for one year. Par- ties then entered into second employment contract that was to end Aug. 31, 2012. In April 2012 employer gave employee written notice of termination of employment on without cause basis because employee failed to meet his sales targets and minimum performance requirements. Employer paid employee two weeks remunera- tion in lieu of notice as required by employment contract. Em- ployer offered to pay employee severance equal to further 10 days remuneration if he signed release, which he declined to do. Employee alleged employer constructively dismissed him or dismissed him without cause. Employee alleged employer failed to pay him severance as required by Canada Labour Code. Employer brought mo- tion for summary judgment to dismiss action. Motion granted in part. Allegation employee was constructively dismissed was untenable. Employee that considered himself to have been constructively dismissed must act on belief within reasonable time. Employee took no action to treat change in his commis- sion structure as dismissal until almost one year after entering into latest employment con- tract and until after employer actually dismissed him. Em- ployee's delay in asserting claim based on constructive dismissal demonstrated that claim had no reasonable prospect of suc- cess. Employee's action based on wrongful dismissal could not succeed in face of undisput- ed fact employer gave employee written notice of his dismissal without cause. Employment agreement permitted employer to dismiss employee on with- out cause basis provided it paid him two weeks remuneration in lieu of notice and additional five days remuneration as sev- erance. Court had concurrent jurisdiction with officials un- der code. It was preferable for court to determine employee's right to unpaid severance in current motion rather than re- quiring him to make complaint to adjudicator appointed under code. Under code, employee was entitled to payment in lieu of notice and to severance pay. Employee received two weeks remuneration in lieu of notice and was additionally entitled to receive severance pay, which was distinct from payment in lieu of notice. Employer did not satisfy its obligation to pay severance pay to employee by offering him 10 days' remu- neration provided he signed re- lease. Employee was entitled to unpaid severance plus interest. Employee was not entitled to punitive damages for employ- er's failure to comply with code, as employer twice offered to pay him severance if he signed release. Wyllie v. Larche Communica- tions Inc. (Jul. 24, 2015, Ont. S.C.J., Price J., File No. Owen Sound 12-319 SR) 256 A.C.W.S. (3d) 115. Family Law SUPPORT Order reducing child and spou- sal support set aside on appeal and new hearing ordered Parties were former common law spouses. In December 2006, they signed minutes of settle- ment resolving all outstanding issues in proceeding between them, and minutes were in- corporated into court order. In 2012, father moved to reduce child support and eliminate spousal support payable. In his financial statement, father revealed he had received sig- nificant pension payout when he lost his job earlier that year. Mother initially asked that fa- ther's motion be dismissed. She later filed amended response, asking that income be imputed to father and that custody ar- rangements be changed. In No- vember 2013, parties consented to order permitting mother to amend her response to add claim for constructive trust over father's assets acquired during cohabitation. Order also permitted questioning and fil- ing of updated factums. When matter came on for hearing, mother sought adjournment because questioning had not been completed and factums had not been filed. Motion judge refused to adjourn hear- ing, finding that question- ing was unnecessary and that mother's motion could be bi- furcated. Motion judge reduced child and spousal support pay- able by father and dismissed all other claims. Mother appealed. Appeal allowed. Motion judge erred in failing to grant ad- journment because she jumped to erroneous conclusion that questioning and updated fac- tums were unnecessary to permit proper consideration of issues she identified could proceed. Motion judge did so without allowing mother's counsel to make full submis- sions on question of whether motions could proceed without questioning. Nature of issues raised by mother's claim that father was intentionally under- employed and her constructive trust claims suggested father would have information rel- evant to them that would not otherwise be available to moth- er. Order was set aside and new hearing ordered before differ- ent judge. Roberts v. Miller (Jul. 7, 2015, Ont. C.A., John Laskin J.A., K. Feldman J.A., and Janet Sim- mons J.A., File No. CA C59119) 256 A.C.W.S. (3d) 152. Injunctions INTERLOCUTORY RELIEF Balance of convenience did not favour suspension of operation of Fair Elections Act pend- ing constitutional challenge Federal election was sched- uled to take place. Applicants brought application for decla- ration that provisions of Fair Elections Act were uncon- stitutional because they con- travened Charter. Applicants brought motion for interlocu- tory injunction to suspend operation of Act pending out- come of application. Applicants sought to restore authority to chief electoral officer to autho- rize electors to use their voter information card to prove their identity and address. Provision of Act eliminated authority of CEO to allow card to be used as means of proving identity and residence at polling station. Motion dismissed. Applicants showed that case raised serious question to be tried. Applicants showed irreparable harm. If impugned provision were ulti- mately found to be unconstitu- tional there would be no way to restore the right of improperly disenfranchised voters to par- ticipate in past election. Bal- ance of convenience did not fa- vour granting injunctive relief. There was limited evidentiary record. To pick and choose among multiple changes made by reforming statute without considering overall scheme ran risk of unfairly isolating con- cerns arising out of one specific provision without considering impact and context provided by rest and potential justifica- tion that might be found to exist in light of whole. It was problematic to change rule for elections at last minute through blunt instrument of judicial in- tervention. Such action might harm public confidence and could lead to further errors in election process. Rule against granting final relied in inter- locutory proceedings involv- ing constitutional challenges to electoral laws was informed by risk of creating difficulties in legislative scheme without con- sidering potential justification arguments that might be made under s. 1 of Charter and with- out allowing Parliament oppor- tunity to respond. Council of Canadians v. Cana- da (Attorney General) (Jul. 17, 2015, Ont. S.C.J., Stinson J., File No. Toronto CV-14-513961) 256 A.C.W.S. (3d) 176. Limitations PROFESSIONS Action by party to mar- riage contract against lawyer and other advisors was dis- missed as statute barred Plaintiff wife signed marriage contract in May 2007 and left family home two days later. Under marriage contract, wife waived claims to support and equalization payments in ex- change for long-term struc- tured stream of employment income, share redemption and enhanced pension payments coming primarily from family- owned business. Wife claimed package was represented to her as having value of $10.48 mil- lion but she discovered in 2012 that present value of payments to be made to her, after factor- ing in taxes and time value of money, was only $4.67 million. Wife claimed she was not aware of impact of taxes or interest on value of settlement she ac- cepted. Wife claimed agree- ment was one-sided and failed to protect her rights. Wife sued her lawyer and legal and finan- cial advisors of family com- panies who advised spouses during negotiation of marriage contract. Defendants brought motion for summary judgment to dismiss action on ground it was statute-barred pursuant to Limitations Act, 2002 and that proceeding was abuse of pro- cess because wife should have brought action against husband for relief pursuant to s. 56(4) of Family Law Act. Motion grant- ed; action dismissed. Trial was not needed to fairly dispose of motion. Core of wife's com- plaint was that she entered into improvident marriage contract in May 2007 that adversely affected her rights when she separated from husband two days later. Time of execution of marriage contract or time of separation was when damages, if any, occurred in relation to acts or omissions that preceded execution of agreement. Wife's claim she only discovered value of settlement after taxes and accounting for time value of money in 2012 was impossible to sustain on evidence. Within six months of date marriage contract was executed, wife knew and understood that sev- eral millions of dollars in taxes would be payable out of $10.48 million she claimed she be- lieved she would have received free of tax. Wife demonstrated before and after she entered into marriage contract she had acute understanding of time value of money. Wife failed to discharge onus on her under s. 5(2) of Limitations Act. Action was commenced more than two years after claims were pre- sumed by s. 5(2) to have been discovered by wife and more than two years after reasonable person with her knowledge and in her circumstances would have discovered claims. Ac- tion was abuse of process. Wife should have pursued remedy against husband under Family Law Act. It would be contrary to public policy and fundamen- tal principles of fairness to per- mit wife to circumvent Family Law Act in this way. Sutton v. Balinsky (Jul. 23, 2015, Ont. S.C.J., Sean F. Dunphy J., File No. CV-12-464405) 256 A.C.W.S. (3d) 215. Professions BARRISTERS AND SOLICITORS Motion by criminal lawyer for summary judgment dismissing action by client dismissed where trial required for just result Defendant was plaintiff 's law- yer for half-day in criminal trial. Plaintiff was not happy with defendant's representation. Defendant requested to be dis- charged and request was grant- ed. Plaintiff represented himself for remainder of trial. Plaintiff was convicted after nine-day trial. Plaintiff appealed convic- tion and new trial was ordered. Plaintiff brought action against defendant on basis of negli- gent representation. Defendant brought motion for summary judgment. Motion dismissed. Plaintiff claimed defendant forced him to testify while de- fendant claimed that plaintiff wanted to testify. If plaintiff 's allegation that defendant forced him to testify against his will was proven, that represented violation of fundamental prin- ciples of Canadian law. Lawyer who compelled client to testify in criminal proceeding against his will engaged in conduct that was so egregious that it was obvious that conduct fell well below requisite standard of care. Link between plaintiff 's testimony and conviction was clear. Parties were diametrically opposed on crucial issue that went to heart of solicitor-client relationship. No process other than fact-finding process at trial would achieve just result. John v. Bartels (Jul. 22, 2015, Ont. S.C.J., Barnes J., File No. CV-13-4164-00) 256 A.C.W.S. (3d) 216. Real Property EASEMENTS Applicants granted declara- tion confirming rights-of-way Parties owned nearby parcels of land in recreational cottage community. Applicants had broad rights-of-way over strip of land used to access beach. CASELAW

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