Law Times

Law Times • may 28, 2012 TAX COURT OF CANADA Taxation Appeal by payer from decision by Minister determining that employee was engaged in insur- able and pensionable employment for purposes of Employment Insurance Act (Can.), and Canada Pension Plan. Payor was in busi- ness of providing direct sales services for large organizations. Worker was engaged by company for door-to-door sales for busi- ness and was paid on commission basis. Worker signed standard form contract which stated that he was engaged as independent distributor and did not qualify for benefits such as minimum wage, worker' Relationship was not consistent with intention expressed in contract INCOME TAX employment insurance. Contract described that worker was inde- pendent businessperson, with opportunity for profit and risk of loss, and with control over place, time and method by which products were offered for sale. Contract stated that worker was not assigned routes, could select his own days and hours of work and was not required to ask for time off. Appeal dismissed. Based on contract, parties intended that worker carry on business on his own account. Worker willingly signed contract and by that action he intended to accept contract' terms. Worker's experience was s compensation or s different than that suggested by written contract. Terms of written contract were not being respected by payor. Payor considered that it could exercise significant con- trol over most aspects of how worker' Control factor strongly pointed to employment relationship. Lack of reimbursement for expenses supported company' s work was performed. was not significant factor. Other factors tended to be neutral. After considering factors as whole, rela- tionship was not consistent with intention expressed in contract. Worker was engaged as employee. Intergranuity Marketing Ltd. v. M.N.R. (Jan. 4, 2012, T.C.C., Woods J., File No. 2011-2056(EI); 2011-2057(CPP)) 212 A.C.W.S. (3d) 284 (7 pp.). s position but ONTARIO CIVIL CASES Administrative Law BOARDS AND TRIBUNALS Claims for injurious affection Motion judge found that appel- lant' properly fell within jurisdiction of Ontario Municipal Board Proceedings Act, 1992 (Ont.) ("CPA"), was in substance one for "injurious affection" and that such claims fell within exclusive jurisdiction of Ontario Municipal Board ("OMB"). Because of juris- dictional result, motion judge dismissed appellant' s claim brought under Class Appeal was dismissed. In appel- s action. lant's Expropriations Act (Ont.), and s. 36 of Ontario Municipal Board Act, clearly conferred jurisdiction over injurious affection claims on board. That appellant' action, combination of proceeded under CPA, did not alter jurisdictional result. Insofar as claims against TTC were con- cerned, various claims advanced by appellant were being used to disguise what was claim for compensation that was within jurisdiction of board. With one exception, claims made against city were also claims for injurious affection that properly fell within jurisdiction of board. Allegation to intentionally harm others was not claim of injurious affection. Given history of matter, appellant was not provided with opportu- nity to amend its pleadings at this late juncture. Curactive Organic Skin Care Ltd. v. Ontario (Feb. 7, 2012, Ont. C.A., Doherty, LaForme and Hoy JJ.A., File No. C53873) Decision at 200 A.C.W.S. (3d) 915 was affirmed. 212 A.C.W.S. (3d) 1 (6 pp.). s action Appeal Jury found plaintiff was charged more than plaintiff owed on prop- erties. Damages were assessed at $24,000. Verdict was endorsed on trial record. Judgment was not granted. Defendant argued action had to be dismissed relying on exclusion of liability clause in defendant' in prejudice to plaintiff that could not be compensated by costs Amendment to defence would result JURY VERDICT Defendant's pleading was defi- s condition of service. cient. Material facts were omitted. It was not in interests of justice to allow defendant to maintain defence defendant did not ade- quately plead. Motion to amend statement of defence and coun- terclaim was never brought. Trial was complete. Evidentiary record could not be supplemented. Plaintiff was deprived of oppor- tunity to call other evidence. Amendment to defence and counterclaim would result in prej- udice to plaintiff that could not be compensated by costs. Judgment was granted in accordance with jury' Gyimah v. Toronto Hydro-Electric System Ltd. (Jan. 30, 2012, Ont. S.C.J., Grace J., File No. CV-08- 00356801) 212 A.C.W.S. (3d) 59 (12 pp.). s verdict. Arbitration Motion by father to stay pro- ceedings commenced by mother, pursuant to s. 7(1) of Arbitration Act, 1991 (Ont.). Parties married in 1987, had two children and separated in 2002. Parties entered into separation agreement follow- ing mediation sessions regard- ing children and financial issues. Agreement provided that any dispute between parties was to be resolved by way of mediation/ arbitration. Mother commenced application for variation of vari- STAY OF PROCEEDINGS Once parties agreed to contractual process to resolve disputes, parties must abide by agreement CASELAW ous provisions of agreement. Motion was stayed pending mediation/ arbitration. Once parties agreed to formal contractual process to resolve their disputes, there is obli- gation on parties to abide by their agreement. Mother failed to meet onus on her to meet any of excep- tions to s. 7(2) of Act. There was no urgency in matter. Thomson v. Thomson (Jan. 31, 2012, Ont. C.J., Zisman J., File No. 158/11) 212 A.C.W.S. (3d) 9 (15 pp.). granted. Application Civil Procedure Claim arose out of losses plaintiffs suffered as result of Ponzi scheme. Plaintiffs claimed defendants were negligent in representation of plaintiffs and breach fiducia- ry duties of loyalty to plaintiffs. Defendants argued paragraphs should be struck out because para- graphs offended absolute immu- nity of counsel against any action arising out of statements made in proceeding before judicial or quasi-judicial tribunal. OSC was quasi-judicial tribunal and state- ments were made by lawyer in course of proceeding. Motion to strike out paragraphs of statement of claim was dismissed. Motion judge concluded it was not plain and obvious that claim made in paragraphs had no chance of suc- cess. Defendants' appeal was dis- missed. It was not plain and obvi- ous that court would not conclude that defining principle of duty of loyalty trumped indispensable attribute of lawyer' Not plain and obvious that duty of loyalty trumped lawyer' COMMENCEMENT OF PROCEEDINGS s immunity Claim was allowed to proceed to trial and issue was to be deter- mined on full record. Hockin J. dissented and would have allowed appeal and ordered paragraphs to be struck out. Amato v. Welsh (Jan. 12, 2012, Ont. S.C.J. (Div. Ct.), Dambrot, Hoy JJ. and dissenting - Hockin J., File No. 115/11) 212 A.C.W.S. (3d) 25 (11 pp.). s immunity. Mother lived in China with child. Father lived in Ontario. Mother brought application for child sup- port. Father sought to dismiss motion on ground court had no jurisdiction. Mother brought cross-motion for interim child support. Court had jurisdiction to entertain claim and court would exercise jurisdiction. Mother' Nothing required child to be resident in Ontario to make claim for child support Conflict of Laws DOMICILE cross-motion for child support was to be heard after case confer- ence. There was nothing in Family Law Act (Ont.) that child to be resident in Ontario in order to make claim for child support. Father did not satisfy onus of showing Ontario was not convenient forum for litigation of claim and that another forum was clearly more convenient. Ontario was more convenient forum than China. required www.lawtimesnews.com Long v. Seelman (Feb. 28, 2012, Ont. S.C.J., Gray J., File No. 6108/11) 212 A.C.W.S. (3d) 86 (9 pp.). Contracts Motion by corporate defendant for summary dismissal of action claiming that defendant failed to pay plaintiff proceeds of lottery plaintiff claimed to have won. Plaintiff claimed he had been unsuspectingly cheated out of winning lottery ticket by employ- ee of convenience store which was owned and operated by personal defendants. Defendant conducted two investigations of complaint and submitted that investigations showed that plaintiff could not possibly have been cheated out of prize winning ticket. Motion granted. No evidence that store clerk stole ticket apart from asser- tion of plaintiff. Corporate defen- dant not liable to plaintiff even if plaintiff did in fact purchase winning lottery ticket and had it stolen from him. Plaintiff not able to prove claim by strict terms of rules of game because ticket lost or stolen. Facts alleged imposed duty on defendant to investigate claim. Defendant conducted two investi- gations, concluded claim not valid and chose not to exercise discre- tion under rules of game in plain- tiff ' stole lottery ticket apart from assertion of plaintiff No evidence that store clerk PERFORMANCE AND BREACH breach its contract with plaintiff. Kalkowski v. Ratsamy (Jan. 10, 2012, Ont. S.C.J., Lauwers File No. CV-07-085289-00) 212 A.C.W.S. (3d) 109 (8 pp.). J., CRIMINAL CASES Appeal ONTARIO Application to re-open appeal from conviction. Accused was caring for his three-month-old grandson when child stopped breathing. CAT scan and radio- logical examination showed that child' Child's injuries were result of blunt force impact GROUNDS and there was significant skull fracture. Accused' conviction for manslaughter after first trial was allowed and new trial ordered. He was tried again and convicted. Accused sought to re-open appeal from that second conviction. Accused' s brain was grossly swollen s appeal from s open his appeal was based on bet- ter understanding of Shaken Baby Syndrome as result of Goudge Inquiry into Pediatric Forensic Pathology in Ontario. Application dismissed. This s case to re- turn on Shaken Baby Syndrome, nor did it turn on kind of evi- dence from Dr. Charles Smith that was so heavily criticized in Goudge Inquiry. Doctor who performed autopsy testified at both of accused' case did not that child's injuries were result s trials said of blunt force impact, though there were also some findings s favour. Defendant did not PAGE 15 that may have been associated with shaking. Issue at accused' second trial was whether inju- ries were caused by accident in course of resuscitative efforts or intentionally inflicted. Defence position of accident was clearly placed before jury and in man- ner favorable to defence. This case did not turn on Shaken Baby Syndrome but on cumulative circumstantial evidence includ- ing unexplained skull fracture. This was accused' s to provide that explanation and he had not. R. v. Simmons (Feb. 13, 2012, Ont. C.A., Rosenberg, Hoy JJ.A. and Swinton J. (ad hoc), File No. M40773 (C32002)) 99 W.C.B. (2d) 527 (8 pp.). s opportunity Charter of Rights Application by accused, who was charged with impaired driving and with driving with blood alcohol FUNDAMENTAL JUSTICE Accused made informed decision not to speak to lawyer limit, for order that his rights under Canadian Charter of Rights and Freedoms were vio- lated. Police officer attended at scene of motor vehicle acci- dent that involved vehicle driv- en by accused. Officer asked if accused and his passenger were injured and when he was told there were no injuries he asked who driver was. Accused responded that he was driver. He did not volunteer this infor- mation and he only made this admission in response to offi- cer' level over legal strong odour of alcoholic bev- erage from accused' Accused's and his eyes were red and glossy. He was also unsteady on his feet. Officer believed he had reason- able and probable grounds to arrest accused for impaired driv- ing and he did so. Accused was asked if he wanted to call lawyer. His response was that he want- ed to call his parents. Officer did not respond to that request. Rather, he explained to accused about various ways he could speak to lawyer. After accused was cautioned he told officer he made mistake by driving and he explained what he meant by that admission. At station accused was asked again if he wanted to call counsel and he declined offer. His readings were 140 and 120. Application dismissed. Utterance about being driver was not made as report within meaning of compelling statute and it was not made with honest and reasonable belief that he was compelled by statute to do so. Accused therefore failed to estab- lish that his rights under s. 7 of Charter were violated. Regarding right to counsel accused did not tell officer that purpose of calling his parents was to obtain contact information about lawyer. This right was not violated as accused made informed decision not to speak to lawyer. R. v. Treliving (Jan. 30, 2012, Ont. C.J., Hearn J., File No. 1705/11) 99 W.C.B. (2d) 559 (23 pp.) LT speech was slurred s question. Officer smelled s breath.

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