Law Times

Page 14 February 8, 2016 • Law Times www.lawtimesnews.com ONTARIO CIVIL CASES SUMMARY JUDGMENT Failure of employee to specifically plead wrong ful dismissal not fatal Plaintiff worked for defen- dant employer until employment was terminated. In latter part of employment, plaintiff went on short-term disability because he had pericarditis. Plaintiff re- turned to work but could not function well. Plaintiff suffered stroke, but defendant insurer rejected claim for long-term dis- ability (LTD) benefits because plaintiff was no longer employed by defendant employer. Plaintiff brought action for, inter alia, LTD benefits. Employer de- fended action, and in plaintiff 's reply he claimed that employer had wrongfully terminated his employment. Employer brought unsuccessful motion for sum- mary judgment on basis plaintiff raised new cause of action in his reply, one that was statute-barred by passage of time. Motion judge found that although statement of claim did not specifically plead that plaintiff had been wrong- fully dismissed, failure to use those specific words was not fa- tal. Employer appealed. Appeal dismissed. Claim of wrongful dismissal came as no surprise to employer. Employer defended claim on basis that plaintiff 's employment was terminated for cause. At core of claim was set of facts establishing employ- ment relationship and contract, that employment contract was breached, and that damages f lowed from breach, including loss of LTD benefits. Reddy v. Freightliner Can- ada Inc. (Nov. 20, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., E.E. Gillese J.A., and P. Lauwers J.A., File No. CA C60355) Deci- sion at 252 A.C.W.S. (3d) 19 was affirmed. 260 A.C.W.S. (3d) 738. Constitutional Law CHARTER OF RIGHTS "No trespass" notice violated appli- cant's right to freedom of expression As result of applicant's video- taping of respondent regional municipality's council meeting in December 2013, initially ob- jected to but later permitted, and applicant's questioning of cer- tain council member about her legal action against him prior to meeting in June 2014, chief administrative officer (CAO) of municipality issued no trespass notice prohibiting applicant from attending further meet- ings for period of one year. CAO advised members of council that notice issued on basis of obliga- tion to ensure everyone felt free and safe from harassment in municipal facilities and numer- ous concerns expressed by mem- bers of council, staff and public about applicant's confrontation- al behaviour. Notice issued with support of chairman of council, but never considered or autho- rized by council as whole. Ap- plicant applied for declaration notice violated his rights under ss. 2 and 7 of Canadian Char- ter of Rights and Freedoms and therefore, unconstitutional. Ap- plicant objected to characteriza- tion of his behaviour as confron- tational. Application allowed. Applicant's right to freedom of expression gave him right to en- ter council chambers unless his exercise of that right interfered with other's use of property. On evidence, applicant had not en- gaged in violence or any threat of violence that would exclude him from protection of s. 2(b). While some found applicant's conduct disrespectful or uncomfortable, there was nothing to support CAO's claim he had been disrup- tive or made members of coun- cil or staff concerned for their safety. Evidence did not establish applicant's attendance at council meetings would serious interfere with other's use of public prop- erty. No trespass notice violated applicant's right to freedom of expression. In absence of evi- dence more limited prohibition had even been considered, viola- tion could not be justified under s. 1 of Charter. No trespass no- tice invalid and of no force and effect. Bracken v. Niagara Corp. (Regional Municipality) (Nov. 12, 2015, Ont. S.C.J., R.J. Night- ingale J., File No. 10408/15) 260 A.C.W.S. (3d) 745. Contracts PARTIES Dealership had no contractual rela- tionship with purchasers of vehicle Plaintiffs purchased vehicle from defendant dealership D. D obtained vehicle from another dealership, O, which was man- aged by defendant B. Vehicle malfunctioned after purchase. Purchasers brought action for damages against both dealer- ships and B. Purchasers settled their claim with D, receiving full purchase price as well as payment of $7,500 for damages and credit for $1,000. O and B's motion for summary judgment against purchasers was granted. Trial judge found O and B were not liable. Purchasers appealed. Appeal dismissed. O had no contractual relationship with purchasers. B was not in con- tact with purchasers before sale and made no representations to them. Damages sustained were amply compensated in settle- ment. Motion judge made no error. Mikhail v. Downsview Chrysler Plymouth Ltd. (1964) Ltd. (Nov. 13, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C60446) Decision at 253 A.C.W.S. (3d) 486 was af- firmed. 260 A.C.W.S. (3d) 752. Judgments and Orders SETTING ASIDE Motion to set aside decision based on fraud and subsequently discovered facts was dismissed Plaintiff had been in personal and financial relationship with deceased, who was previously married to defendant. Deceased died but she made no provision for plaintiff in her will. Plaintiff initiated several legal proceed- ings against deceased's estate, which were defended by defen- dant as executor. Defendant stat- ed on more than one occasion that estate was about $1 million for purposes of Succession Law Reform Act. In first decision, it was determined that plaintiff and deceased were in spousal re- lationship and plaintiff was de- pendent for purposes of reform act. Defendant then asserted estate had no assets available for order under act. In second deci- sion, it was concluded that value of estate for purposes of reform act was zero and plaintiff was granted no relief. Plaintiff had previously agreed to dismissal of all other claims against es- tate. Plaintiff sought to set aside second decision based on fraud and subsequently discovered facts. Motion dismissed. It was clear that plaintiff was aware, well before date of second deci- sion, of prior representations by defendant that estate was worth $1 million and he was aware that defendant was resil- ing from those representations. To extent defendant or lawyer made misrepresentations, they were known to plaintiff prior to judgment he sought to set aside. Defendant was aware of facts be- fore hearing that gave rise to sec- ond decision. Second judgment was not procured by fraud and it did not warrant being set aside or varied on ground of fraud or facts discovered after it was made. Nothing new had sub- sequently arisen. Plaintiff had ample opportunity to present all available arguments. There was no proper basis for reopening trial or for setting aside second decision. Su v. Lam (Nov. 30, 2015, Ont. S.C.J., Stinson J., File No. 05-50/05) 260 A.C.W.S. (3d) 844. Limitations TORT No error in motion judge's discoverability analysis In August 2009 plaintiff 's vehicle was stopped by police on suspi- cion of being stolen. Vehicle was impounded and plaintiff and her children were left to make own way home. Plaintiff alleged she suffered medical complications relating to her pregnancy result- ing from officer's conduct. Plain- tiff sought advice from lawyer on whether to pursue civil action. In September 2009, plaintiff wrote complaint letter to police ser- vice, and she received response in June 2011. Plaintiff requested review of complaint and in No- vember 2012 she was advised that her complaint was upheld in part. In October 2013, over four years following incident, plaintiff commenced negligence action against police service and officer. Motion judge granted de- fendants' motion for summary judgment dismissing plaintiff 's action on grounds that claim was statute-barred. Plaintiff ap- pealed. Appeal dismissed. There was no error in motion judge's discoverability analysis. Plain- tiff raised no evidence to rebut statutory presumption that she knew of matters giving rise to her potential claim on day inci- dent took place. By time plaintiff commenced action limitation period had expired and her ac- tion was statute-barred. Expert evidence was not required for plaintiff to discover her claim. Administrative processes plain- tiff invoked concerned mainte- nance of police standards, which provided additional information in support of her claim, but dis- covery of her claim did not de- pend on them. Cassidy v. Belleville Police Service (Nov. 23, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C60466) Deci- sion at 253 A.C.W.S. (3d) 208 was affirmed. 260 A.C.W.S. (3d) 856. Police LIABILITY IN TORT Action arising from plaintiff 's arrest and detention for criminal harassment dismissed as frivolous, vexatious or abuse of process Plaintiff commenced action in April 2014 claiming general damages against defendant Po- lice Services Board and defen- dant police officers. Plaintiff 's claim for damages were said to have arisen from two arrests in July 2010, and April 2012. Plain- tiff conceded that his claims aris- ing out of 2010 arrest were stat- ute-barred. Defendants moved for summary judgment dismiss- ing plaintiff 's action on grounds that it was frivolous, vexatious or an abuse of process. Motion granted. Plaintiff complained that his arrest and detention on charge of criminal harassment was without cause and resulted in his unwarranted detention. However, fact that charge was resolved by peace bond and that plaintiff 's detention pending bail hearing was imposed by ju- dicial officer made much of his claim frivolous if not vexatious. Plaintiff failed to plead facts to support his claims for false ar- rest, misfeasance in public of- fice and intentional inf liction of mental distress. No genuine is- sue for trial was raised on plain- tiff 's claims for defamatory libel, invasion of privacy, trespass to chattels, malicious prosecution and negligent investigation. Fact that plaintiff entered into peace bond on charge of criminal ha- rassment precluded him from succeeding in his claims for Charter breaches. Pilon v. Ontario (Nov. 20, 2015, Ont. S.C.J., John S. Pou- pore J., File No. 3165-14) 260 A.C.W.S. (3d) 869. Professions ENGINEERS No genuine issue for trial in action against regulating body for professional engineers In 1997, plaintiff immigrated to Canada from Iran where he had been employed as "gas engineer" for many years. Plaintiff claimed that he was initially dissuaded from applying to become licensed as professional engineer in Ontario when defendant, association established under Professional Engineers Act as sole licensing and regulating body for professional engineers in province, advised it did not recognize discipline of "gas engineering". He did, however, submit formal application for licensing in August 2006. In accordance with Act, defendant employed three-stage process to consideration of applications. At first stage, defendant determined plaintiff 's 1976 B.Sc. Engineering in gas discipline from Iranian technical institute insufficient to meet academic requirements. It directed him to write two proficiency exams and to attend interview regarding experience. Rather than write exams, plaintiff enrolled in university program for foreign- trained engineers wishing to become licensed in Ontario. After successful completion of program in 2009, plaintiff satisfied first stage of application process. After several attempts, plaintiff passed both components of Professional Practice Exam, law and ethics, to satisfy second stage in 2012. After submitting further documentation, and attending further interview to prove necessary work experience, plaintiff satisfied third stage and was granted license in June 2013. In November 2013, plaintiff commenced action for financial and emotional damages dating back to 1997 for defendant's alleged negligence and bad faith in licensing process. Defendant brought motion for summary judgment dismissing action on basis there was no genuine issue requiring trial. Motion granted. Under s. 45 of act, no action for damages could be brought against defendant, or any officer, employee, agent or appointee of defendant, for any act done, duty performed, or power exercised in good faith. While there was no question defendant had duty to provide licensing process that was transparent, objective, impartial and fair, there were no legal precedents imposing separate duty of care on regulator such as defendant in such circumstances. Since act provided various internal and external routes of appeal for those dissatisfied with any part of licensing process, routes plaintiff had chosen not to follow, there was no reason to impose new duty of care in circumstances. Any duty of care would have been negated by residual policy considerations in any event. In absence of duty of care, and any evidence of bad faith, there was no genuine issue requiring trial. Salehi v. Assn. of Profes- sional Engineers of Ontario (Nov. 26, 2015, Ont. S.C.J., Dia- mond J., File No. CV-13-492401) 260 A.C.W.S. (3d) 877.

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