Law Times

PAGE 14 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. FEDERAL COURT Contempt Of Court PROOF OF OFFENCE Applicant, federal public servant and suspended member of Pro- fessional Institute of Public Ser- vice of Canada ("Institute") sought judgment finding Institute guilty of contempt for failing to imple- ment order of Public Service Staff Relations Board ("Board") dated August 26, 2009. Board order' As allegations of harassment serious, reinstatement not appropriate remedy central element was reinstatement of applicant' s ficial of bargaining unit to all of her elected and appointed posi- tions subject to normal opera- tion of constitution and by-laws of bargaining unit. Applicant was never reinstated to any of elected or appointed positions, all of whose terms of office had now expired and had so expired at time of contempt proceeding before this court. Institute argued that it acted properly in not rein- stating applicant to office because that obligation was, by very terms of Board order itself, subject to normal operation of Institute' s status as elected of- constitution and by-laws, which provided that holder of office in Institute must be member in good standing of that organization. Ap- plicant no longer met condition of being member in good stand- ing in Institute since October 15, 2009, when she was suspended for period of five years by Executive Committee because two harass- ment complaints lodged against her or her husband by members of Institute were found substantiated aſter investigation by outside in- vestigator appointed by Institute. Institute was guilty of contempt of "Order of Board" dated August 26, 2009. Board order, read in context of member' s and unambiguous - reinstate ap- plicant immediately in order that her term of offices not expire and real harm she suffered not be re- s reasons, was clear paired. Institute was well aware of its obligations under Board' der. That was why it sought to stay operation of Board' s or- when its harassment investigation was well advanced. In this con- text, it was unreasonable for In- stitute to interpret Board order as permitting subsequent event such as suspension of membership which would nullify reinstate- ment. If disciplinary issues arose later to warrant action, Institute could do so at that time. Institute had right to investigate and to discipline applicant. Allegations against her and her husband were serious. Question was whether they amounted to harassment, and whether penalty and its tim- ing were reasonable and propor- tioned. Institute did not meet its evidentiary burden of establishing lawful excuse. However, as issue of her suspension from membership was still outstanding and allega- tions of harassment were found to be serious, reinstatement was not appropriate remedy. Parties were given six weeks to reach settlement. If settlement was not achieved within six weeks, court will ask parties for submissions on appropriate remedy. Court re- mained seized of matter. Bremsak v. P.I.P.S.C. (Feb. 16, 2012, F.C., Lemieux J., File No. T-2049-09) 99 W.C.B. (2d) 221 (43 pp.). s order at time Immigration PERSON IN NEED OF PROTECTION Applicant received negative pre- removal risk assessment ("PRRA"). Applicant' evidence that officer failed to identify alleged fear Applicants presented no moval was denied. New evidence did not satisfy PRRA officer ap- plicants would be unable to access state protection in country of ori- gin. Applicants were found not to be at risk if removed to country of origin. Removal officer referenced finding in PRRA decision relating to availability of state protection s request to defer re- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. in country of origin. Application for judicial review was dismissed. PRRA officer did not make nega- tive credibility finding. Officer did not impose double standard on applicants by not considering arguments made by counsel with respect to possible errors made by RPD and then finding applicants did not provide satisfactory ex- planation for inconsistencies in testimony noted by RPD. PRRA officer was correct in refusing to consider arguments directly seek- ing that RPD decision be reviewed or ignored. Applicants presented no evidence that PRRA officer misconstrued or failed to identify alleged fear. There was nothing in record to indicate police docu- ments or CAS letter were cogent new evidence of that officer failed to consider them. Forde v. Canada (Minister of Citi- zenship and Immigration) (Feb. 3, 2012, F.C., Zinn J., File No. IMM- 4421-11; IMM-4532-11) 211 A.C.W.S. (3d) 686 (16 pp.). ONTARIO CIVIL CASES City received access to information request for disclosure of every invoice submitted for reimbursement by particular municipal employee for use of paid toll highway. City agreed to partial disclosure, redacting entry and exit points on highway as well as times of entry and exit. Requester appealed decision to withhold infor- mation to Information and Privacy Commissioner. Commissioner ordered city to release withheld information. Commissioner agreed that withheld data met definition of "personal information" but found that it fell under one of enumer- ated exceptions, namely benefits received by employee in addition to base salary. Commissioner rejected city' information" but fell under one of enumerated exceptions Data met definition of "personal Administrative Law JUDICIAL REVIEW s argument that information could reveal employee's where- s argu- abouts and should remain redact- ed for safety reasons. City' ment that individual's whereabouts not "benefit" under s. 14(4)(a) of Municipal Freedom of Information and Protection of Privacy Act (Can.), also dismissed. City' cation for judicial review dismissed. Existing jurisprudence indicat- ed standard of reasonableness applied to commissioner' s appli- Reasonableness concerned mostly with existence of justification, trans- parency and intelligibility within decision-making process but also whether decision falls within range of possible, acceptable outcomes. Commissioner' s decision. ordinary meaning of word "benefit" in Act, consistent with principles of statutory interpretation and evi- denced transparency and intelligi- bility in decision-making process. Commissioner' s decision respected Vaughan (City) v. Ontario (Information and Privacy Commissioner) (Dec. 6, 2011, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Pardu and Mulligan JJ., File No. 341/10) 211 A.C.W.S. (3d) 458 (16 pp.). s decision upheld. Contracts Application by applicant for re- lease of $60,000 being held in trust. Parties were partners in gas station operation through two numbered companies. Par- ties had shareholder meeting, and it was agreed respondent would purchase applicant' Sale did not fall through because of default of respondent PERFORMANCE AND BREACH est in business. Money held in trust represented deposit paid by respondent pursuant to share purchase agreement. Application dismissed. It was ordered that de- posit be released to respondent. Share purchase agreement be- tween parties was declared to be null and void. Agreement of pur- chase and sale did not fall through because of default of respondent, but rather it fell through because s inter- third party dependent condition could not be fulfilled. Completion of agreement was conditional on respondent obtaining applicant vendor' guarantees. Shah v. Ahuja (Mar. 6, 2012, Ont. S.C.J., Bielby J., File No. CV-11- 3300-00) 211 A.C.W.S. (3d) 711 (10 pp.). s release from his personal Employment Breach of non-solicitation clause not established and damages not proven Defendant employed DUTIES OF EMPLOYEE Components of compensation plaintiff received were different from ones contemplated by con- sulting agreement signed by par- ties. Plaintiff leſt employment at defendant. Plaintiff claimed de- fendant failed to pay plaintiff all commission earned and neglect- ed to pay any portion of perfor- mance bonus to which plaintiff was entitled under agreement. Plaintiff claimed his compensa- tion was mandated by consulting agreement. Defendant argued no moneys were due to plaintiff. De- fendant argued plaintiff solicited customers and/or employment candidates of defendant during one year following plaintiff ' plaintiff. parture. Action was dismissed. Consulting agreement con- tained entire agreement/exclu- sion clause. Arrangement par- ties implemented bound parties notwithstanding entire agree- ment/exclusion s de- agreement/exclusion clause did not catch significant and long- term changes made by parties. It would be inappropriate to en- force entire agreement/exclusion clause even if it applied. Coun- terclaim was dismissed. Evidence of solicitation was inconclusive. Breach of non-solicitation clause in consulting agreement was not established and damages were not proven. Prosser v. PlanIT Search Inc. (Feb. 10, 2012, Ont. S.C.J., Grace J., File No. CV-09-377147) 211 A.C.W.S. (3d) 575 (12 pp.). clause. Entire May 7, 2012 • Law TiMes Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover