Law Times

LAW TIMES / APRIL 21, 2008 over $5,000, pursuant to s. 380 (1)(a) of the Code. Accused was a restaurant manager. She had financial problems because of a garnishment of her salary. She claimed that the immediate superior agreed to an arrange- ment that any extra hours that she worked above her required hours would be attributed to her son, who also worked at the restaurant. Such funds would be deposited into an account in her son's name which the accused would be able to access. Accused would pay the son for the hours he actually worked. Accused claimed that at her termination meeting her immediate superior understood and condoned her method of working extra hours and of having the payment de- posited into her son's account. Immediate superior denied that he approved this arrangement. Accused was charged because of the false time records for the hours that her son worked. Accused convicted of both of- fences. Cumulative evidence of the store employees who worked with the accused indicated that she worked many hours beyond her established hours as manag- er. Evidence of the same witness- es indicated that the son did not work in the restaurant as many hours as he was alleged to have worked. Court concluded that there was insufficient evidence to corroborate the accused's ver- sion of what transpired. Dis- trict manager was present at the meeting where the accused's im- mediate superior fired her but he was not called to testify about what the accused told her supe- rior at the meeting about the ar- rangement about the hours and their payment. Court was also not provided with the records that the accused kept of the ex- tra hours that she worked. There was no confirmation to support the accused's claim that her im- mediate superior betrayed her out of concern that his approval would cause problems for him. Accused had no obligation to call corroborative evidence but in this case it would have been helpful where credibility was an issue. Evidence indicated that the accused was having pay- ment for many hours allegedly worked by her son, but not re- flected on the restaurant's work schedules, paid directly into his account. Court therefore concluded, and was satisfied beyond a reasonable that the employer did not al- low the accused to work the ex- tra hours and to have payment for such work paid into the son's account. Accused, with full knowledge that her em- ployer told her that the scheme was illegal did so unilaterally. Since the accused embarked on this scheme, with the knowl- edge that the employer did not permit it, she engaged in a dis- honest act against her employ- er. Employer would not have paid her for those hours even though the accused worked them. Court was satisfied that the accused created the entries about her son, some of which were false. It was also satisfied that she defrauded the employ- er in excess of $5,000. R. v. Cunneyworth (Jan. 31, 2008, Ont. C.J., Forsyth J., File No. 06-8635-00) Order No. 008/057/022 (49 pp.). doubt, CIVIL CASES Appeal ONTARIO Motion judge erred in holding that limitation period for filing appeal began to run from date unsigned copy of ruling was re- ceived by appellant. Signing of decision was not merely admin- istrative procedure. Where board reserved decision and subsequent- ly released its decision, there was no decision until it was signed. Counsel for appellant complied with statutory scheme as laid out in Ontario Society for the Preven- tion of Cruelty to Animals Act. Matter was remitted to Superior Court to fix early date for hearing of appeal. Pryor v. Ontario Society for the Prevention of Cruelty to Animals (Feb. 7, 2008, Ont. C.A., Feld- man, MacFarland and Watt JJ.A., File No. C47689) Appeal from 159 A.C.W.S. (3d) 631; 86 O.R. (3d) 759 allowed. Order No. 008/050/051 (3 pp.). TIME Appellant complied with scheme in Ontario Society for the Preven- tion of Cruelty to Animals Act Civil Procedure PLEADINGS Right of review was by way of judicial review, not civil action Doctor brought current action for remuneration of debt owed for medical services provided during specific period. Application judge correctly dismissed claim. Claim was identical to claim against same defendants in first action and met requirement of res judicata. First action was determined on merits by way of summary judgment. Claim against individual defen- dants had no basis in law or had not been properly pleaded. It was plain and obvious claims could not succeed. Appellant's right of review must be by judicial review, not civil action in courts. Deep v. Ontario (Feb. 14, 2008, Ont. C.A., Laskin, Simmons and Armstrong JJ.A., File No. C47624) Appeal from 159 A.C.W.S. (3d) 481 dismissed. Order No. 008/050/052 (2 pp.). Employment Appellant was never advised that grievance procedure was available to her under provisions of Public Service Staff Relations Act (Can.). By time question of court's juris- diction was raised, it was too late for appellant to initiate griev- ance process, even assuming that process was appropriate. Motion judge erred in failing to consider failure of respondents to alert ap- pellant to all of procedures avail- able to her to complain about her treatment. To deny appellant access to court now would leave her without remedy and result in miscarriage of justice. Sweeney v. National Film Board of Canada (Feb. 6, 2008, Ont. C.A., Feldman, MacFarland and Watt JJ.A., File No. C47081) Appeal from 156 A.C.W.S. (3d) 365; 21 D.E.L.D. 201; 57 C.C.E.L. LABOUR RELATIONS To deny appellant access to court would result in miscarriage of justice CASELAW (3d) 153 allowed. Order No. 008/045/066 (3 pp.). Family Law Parties were granted joint custody and parallel parenting of their children, aged five. Such order was required to protect parental rights of applicant, which were in best interests of children. Under current exclusive custody regime, respondent had systematically attempted to limit applicant's participation in lives of children without reasonable cause. In so doing, respondent had interfered with nurturance of applicant's pa- rental relationship with children, to their detriment. Trepanier v. Cadieux-Trepani- er (Feb. 6, 2008, Ont.S.C.J., Linhares de Sousa J., File No. 05-FL-2691) Order No. 008/043/170 (40 pp.). CUSTODY Joint custody was in best interests of children Application by mother of two children of parties, aged five and seven, for sole custody and per- mission to relocate with children to Newfoundland. Father agreed that primary residence should be with mother but opposed reloca- tion to Newfoundland. Mother was born in Newfoundland, had family there and would have full- time work available to her in her nursing field. Father had no per- manent home and nowhere to accommodate children overnight. Mother had new partner who also had full-time employment wait- ing in Newfoundland. Mother had been prime care giver for children since birth and made all decisions about children's needs prior to separation. Custody granted to mother as this was in best interests of children. With respect to mobility issues while in it was inappropriate to start with presumption in favour of wishes of custodial parent, such wishes are entitled great respect. Mother's desire to move to Newfoundland with children was reasonable and appropriate in circumstances. She could better her employment op- portunities there and had taken steps to do so. She and children would enjoy more substantial family support if they moved back to Newfoundland. Babysit- ting expenses cold be reduced by availability of mother's mother to care for children as required. Mother's offer to forego child support so as to financially enable father to attend on monthly basis in Newfoundland was meaning- ful concession. Champion v. Champion (Jan. 4, 2008, Ont.S.C.J., Glithero J., File No. 39731/06) Mother's desire to move to New- foundland with children was reasonable Insurance Insurer brought application for declaration that it did not have to defend or indemnify or pay any professional fees and disburse- ments in respect of respondents' defence of court action. Respon- dents brought cross motion seek- ing contrary relief. Respondents were insured pursuant to home- owner's policy of insurance issued by insurer. Application dismissed. LIABILITY INSURANCE Insurer could not repudiate position waiving rights Attn.:_______________________________Firm: ________________________ Address: ________________________________________________________ City/Prov.: ________________________________Postal Code:______________ Canada Law Book Account # __________________________________________ VISA/MasterCard/AMEX # ____________________________________________ Expiry Date: ___________________ Signature: __________________________ Print Name on Card: ________________________________________________ Rush orders can be called in at: 1.800.263.3269 Fax orders can be sent to: 905.841.5085 *Add 13% PST & GST on all orders www.lawtimesnews.com Cross application granted. Facts strongly supported respondents' contention that insurer had waived its rights and could not now repudiate that position. Respondents' position was com- pelling in light of chronology of events, length of time over which they had evolved and especially unequivocal character of letter in which insurer stated it would de- fend action. Economical Insurance Group v. Fleming (Jan. 7, 2008, Ont.S.C.J., Hoilett J., File No. 07-CV-326471PD) Order No. 008/009/071 (15 pp.). Torts NEGLIGENCE MTO breached duty of care to occupiers of farm on which roadbed material was deposited PAGE 15 dairy farm well and residence, and in its limited inadequate investiga- tion and remediation of harmful environmental effects of its buried roadbed waste. Loss and harm to plaintiffs' dairy operation was caused by MTO's deposit of and continued presence of roadbed material on farm. Plaintiffs' dam- ages were assessed at $1,161,400 for business loss, plus $385,000 for plaintiffs' economic losses aris- ing from negligence of MTO, plus general damages of $150,000 and special damages of $36,000. Berendsen v. Ontario (Jan. 18, 2008, Ont.S.C.J., Seppi J., File No. 6086/94) Order No. 008/024/039 (163 pp.). Mortgages In mid-1960's, MTO undertook roadwork at intersection. Truck- loads of road surface waste of concrete and asphalt were bur- ied beside watercourse on nearby dairy farm. Plaintiffs purchased dairy farm in 1981. Serious water quality problems on dairy farm were caused by from buried roadbed waste mate- rial. Plaintiffs suffered significant losses. It was reasonably foresee- able that harm could result to oc- cupiers of farm as result of MTO's carelessness in depositing poten- tially contaminated material in that quantity and in that sensitive location on dairy farm. MTO's duty of care extended to plaintiffs as successors in title and occupiers of farm on which roadbed materi- al was deposited. MTO breached its duty of care owed to plaintiffs both by its deposit and burial of harmful waste roadbed material so close to natural water course and contaminants Motion judge refused to give re- lief from foreclosure judgments obtained ex parte by respondents. Application judge did not have before him record that was placed before judge to obtain ex parte or- ders. Material before judge on ex parte motion did not constitute full, fair and frank disclosure as required on ex parte motion. Ex parte orders should have been set aside by motion judge and would have been had motion judge been aware of this problem. Portion of judgment refusing to set aside foreclosures was set aside. Frenchmen's Creek Estates Inc. v. Tuckernuck Mortgage Admin- istration Inc. (Feb. 6, 2008, Ont. C.A., Feldman, MacFarland and Watt JJ.A., File No. C46994) Decision at 155 A.C.W.S. (3d) 814; 52 R.P.R. (4th) 286 was varied. Order No. 008/050/054 (3 pp.). 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