Law Times

Law Times • November 16, 2015 Page 15 www.lawtimesnews.com received by majority of English language students. Conseil des Écoles Publiques de l'Est de l'Ontario c. Ontario Federation of School Athlet- ics Assn. (Aug. 27, 2015, Ont. S.C.J., Robert N. Beaudoin J., File No. 14-62416) 257 A.C.W.S. (3d) 934. Education COLLEGES AND UNIVERSITIES Not plain and obvious that actions taken by defendants entirely within university's broad discretion to manage its academic affairs Plaintiffs commenced pro- posed class action against de- fendants with respect to sus- pension of university's varsity hockey team following allega- tions of sexual assault. Entire team was suspended for year, which cast suspicion and guilt over all players of team regard- less of fact that it was known that only two of them were involved in alleged sexual as- sault. Plaintiffs sued univer- sity and its president for negli- gence, breach of fiduciary duty and misfeasance in public of- ficer. Defendants brought mo- tion to dismiss plaintiff 's claim as disclosing no reasonable cause of action. Defendants argued that there was no right to play hockey at university and that suspension of hockey team was entirely within pur- view of university president. Motion granted in part. De- fendants' actions represented public choice to get involved in matter known to be subject of criminal investigation by au- thorities. It was not plain and obvious that actions taken by defendants were entirely with- in university's broad discretion to manage its academic affairs. Sufficient facts were pleaded to support allegations of neg- ligence. Relationship between university and its students gave rise to duty of care carrying with it standard of care requir- ing that defendants' conduct not create unreasonable risk of harm. It could be said that defendants were required to take necessary care to get their facts straight before maligning plaintiffs as having been in- volved in sexual assault. There was no undertaking by uni- versity to ever act only in best interests of students in opposi- tion to institution as a whole. Claim for breach of fiduciary duty could not succeed. Tort of misfeasance in public office had subjective mental element requiring intentional abuse of power. Only inference that could be drawn from presi- dent's actions was that he made decision which had negative consequences to some. There was no basis to find he acted in bad faith or dishonestly. Claims in breach of fiduciary duty and misfeasance in public office were struck. Creppin v. University of Ottawa (Jul. 10, 2015, Ont. S.C.J., Kev- in B. Phillips J., File No. Ottawa 15-63058) 257 A.C.W.S. (3d) 844. Employment WRONGFUL DISMISSAL Termination of plaintiff had nothing to do with her age After 16 years of working for defendants, plaintiff was ter- minated from her position as training scheduling coordina- tor. Plaintiff was 72 years old at time of termination and claimed that her age was rea- son she was let go. Defendant denied claim and said deci- sion to terminate plaintiff and others was based on financial decline due to work short- age that had been taking place over course of five years. Plain- tiff commenced action and brought motion for summary judgment against defendant seeking damages of $75,000 for wrongful dismissal/breach of contract and $20,000 in damages for discrimination in employment due to age. Defen- dant relied on contract of em- ployment signed by plaintiff. Motion dismissed. Termina- tion of plaintiff had nothing to do with her age. Defendant valued older employees. Real- ity was that plaintiff 's position as training scheduler became redundant years before she was laid off and terminated. Con- tract signed by plaintiff in 1998 was valid at time of termina- tion. Plaintiff was entitled to 23 weeks' notice pursuant to contract. Mlotek v. York-Med Systems Inc. (Sep. 4, 2015, Ont. S.C.J., K.P. Wright J., File No. CV-14- 00512077) 257 A.C.W.S. (3d) 849. Injunctions INTERLOCUTORY RELIEF Mareva injunction was varied In proceedings in Latvia, ap- plicant had obtained arbitra- tion award against Kyrgyz Republic totaling $20 million. Respondent KJSC was wholly owned by Republic and owned one-third interest in shares of respondent CGI. Applicant claimed that he was entitled to lev y execution on CGI shares to extent necessary to satisf y arbitration award. It obtained ex parte Mareva injunction freezing CGI shares and divi- dends and distributions pay- able to KJSC. Mareva injunc- tion was continued by court. KJSC brought motion to set aside or vary order continuing Mareva injunction for failure of applicant to make full and frank disclosure, or because prerequisites for Mareva in- junction no longer subsisted given events that had trans- pired since it was granted. In al- ternative, KJSC submitted that the injunction should be varied because assets that were frozen by injunction greatly exceeded amount of arbitration award applicant sought to enforce in Ontario. Motion granted. Applicant had made full and frank disclosure when Mareva injunction was obtained. Suf- ficient inquiries were made by applicant's counsel as to status of other proceedings. However, previous injunctions against KJSC could no longer be re- lied upon for finding Republic had beneficial ownership of CGI shares. There was insuf- ficient record to support strong prima facie case that Republic had assets in Ontario. Mareva injunction was to be set aside, subject to terms that recog- nized that there may well be requisite beneficial interest. Applicant was given 20 days to put forward evidence regard- ing beneficial ownership of shares before injunction would be set aside. Belokon v. Kyrgyz Republic (Sep. 8, 2015, Ont. S.C.J., W. Matheson J., File No. CV-15- 10890-00CL) 257 A.C.W.S. (3d) 933. Municipal Law COUNCILLORS Municipalities were better posi- tioned than Ontario government to respond to public interest aspects raised in application Applicant was councillor for city. Municipal Conf lict of Interest Act did not provide mechanism by which elected member could seek court rul- ing in advance of participating or voting on issue where there was some uncertainty regard- ing proper interpretation or application of Act. Practice developed whereby members who wished to resolve uncer- tainty in this regard brought applications. Applicant's son was law yer who acted for ap- pellant in relation to appeal be- fore Ontario Municipal Board. Applicant asserted he was not personally affected from son's employment with law firm or from remuneration of any sort received by son from firm. Ap- plicant brought application for declaration that he did not have pecuniary interest within meaning of Act. Respondent was Her Majesty Queen as represented by Ministry of At- torney General and not City of Vaughan and Regional Mu- nicipality of York. Crown ad- vised that application related to purely local issues and did not engage interest of Crown in Right of Ontario. Crown did not take any position on application. Court declined to hear application because ap- propriate notice was not given to potentially interested par- ties. Without appropriate no- tice proceedings ran risk of be- coming judicial rubber stamp based on one-sided arguments. Applicant was to serve City of Vaughan and Regional Munic- ipality of York Region with no- tice of application and factum. Municipalities were better positioned than Ontario gov- ernment to respond to public interest aspects raised in appli- cation. Relevant municipality would be in better position to know whether applicant dis- closed all of relevant facts. Ferri v. Ontario (Ministry of At- torney General) (Jun. 16, 2015, Ont. S.C.J., R.E. Charney J., File No. Newmarket CV-15- 122862-00) 257 A.C.W.S. (3d) 959. Professions LIBEL AND SLANDER Town councillor's defamation action against mayor and other councillors was dismissed Plaintiff was elected town councillor and defendants were mayor of town and oth- er elected town councillors. Plaintiff felt that town council was dysfunctional. Plaintiff was person of integrity and honesty but she wrote several blogs that were allegedly high- ly disparaging of senior town staff and in contravention of town's Code of Conduct. Plaintiff refused to apologize. Town council made statement that was published on town's website and in local paper in response to blogs and letter to editor that plaintiff had writ- ten. Statement indicated that plaintiff contravened Code of Conduct, that she refused to apologize when asked to do so and that formal complaint was being made. Plaintiff brought defamation action. Action dis- missed. Among other things, Code of Conduct required that municipal councillors were not to publicly criticize staff. Al- though plaintiff did not sign Code, she was bound by its provisions, as it became formal by-law. Defendants conceded that impugned words referred to plaintiff and they were published. Nothing in state- ment would lead reasonably informed reader of statement to conclude that plaintiff was unfit or incompetent to hold public office. Nothing in state- ment would lead reasonably informed reader to conclude that plaintiff abused staff or interfered with ability of staff to serve residents of town or that plaintiff acted unlawfully. Statement expressed opinion that plaintiff violated Code of Conduct when she improperly criticized staff. Statement was both accurate and substantially true. Publication of statement occurred during occasion of qualified privilege. Statement did not go far beyond what was necessary or appropriate to respond to plaintiff 's blog entries and her letter to edi- tor and privilege was not lost. Communication of statement in local press was measured response to same audience that would have read plaintiff 's let- ter to editor. While publication of statement on town's website was publication effectively to world at large, plaintiff 's blog entries were also publications to world at large. Privilege was not lost because publication of statement on internet was in response to something that plaintiff equally made available on internet. Defendants relied on legal advice in publishing statement. While legal advice could not, by itself, provide complete answer to whether or not defendants acted in good faith, it was not unreasonable for defendants to rely on advice of law yer. Defendants acted in good faith and without malice. Defendants' response was mea- sured response to measured audience and did not exceed bounds of qualified privilege attached to occasion. Buck v. Morris (Sep. 15, 2015, Ont. S.C.J., M.L. Edwards J., File No. CV-09-096918-00) 257 A.C.W.S. (3d) 989. FEDERAL COURT Constitutional Law C HA RT E R OF R IG H T S Arbitrator did not err in find- ing that s. 3 of Charter did not apply to First Nation election Applicant O was member of respondent First Nation and was nominated to run for Chief in election. However, O was told by election officer that he could not do so because s. 9.3(c) of Customary Election Regulations of the Peerless Trout First Nation stated that any elector who was plaintiff in civil action against First Nation was not eligible to be nominated and O had com- menced civil action against First Nation that was ongoing. O appealed and brought ac- tion seeking to have s. 9.3(c) of Regulations declared invalid on grounds it was contrar y to Canadian Charter of R ights and Freedoms. Master found that s. 9.3(c) of Regulations did not violate Charter. Arbitrator dismissed O's appeal, finding that elections officer properly applied s. 9.3(c) of Regulations and that s. 9.3(c) of Regula- tions did not infringe Charter. O brought an application for judicial review. Application dismissed. There was no au- thority to support O's argu- ment that there was constitu- tional guarantee that members of First Nation could run for elected office of First Nation Council. Given clear line of au- thorities, arbitrator did not err in finding that s. 3 of Charter did not apply to First Nation election and therefore s. 9.3(c) of Regulations was not uncon- stitutional because it did not conf lict with s. 3 of Charter. Arbitrator did not err in find- ing that eligibility requirement was not abuse of power or contrar y to rule of law. It was open to arbitrator to find that s. 9.3(c) eligibility requirement was directed toward ensuring that First Nation Chief and councillors were able to fully and properly carr y out duties and responsibilities and dem- onstrate responsible govern- ment. Arbitrator's interpreta- tion of s. 9.3(c) of Regulations was reasonable. Orr v. Peerless Trout First Na- tion (Sep. 8, 2015, F.C., Cecily Y. Strick land J., File No. T-32- 15) 257 A.C.W.S. (3d) 751. LT CASELAW

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