Law Times

Page 14 May 30, 2016 • Law TiMes www.lawtimesnews.com CASELAW ers understood, that agreement would expire at end of relevant active period and unused funds would be claimed by Bell after that time unless account was "topped up" before expiry. Mo - tion judge entitled to rely on other documents, in addition to initial agreements, that formed part of contractual relationship between parties. Modern con - tracts often made partly on pa- per and partly on internet. Not unusual to find contract terms in several "documents." Where parties enter into interrelated agreements, court required to look to all those agreements to determine construction. Motion judge's interpretation of con - tract, based on Bell's terms and conditions of service and other documents available at time of contracting, was correct. Gift card regulations prohibit expiry date on future performance of gift card agreement but do not prohibit agreement being time- limited. Customers were buy - ing defined period of wireless service. Purchaser could decide when to activate service in or- der to begin that period. Bell required to perform agreement once consumer decided to acti- vate. Fact that service purchased was for defined period was not breach of regulation. Sankar v. Bell Mobility Inc. (Apr. 4, 2016, Ont. C.A., G.R. Strathy C.J.O., H.S. LaForme J.A., and Grant Huscroft J.A., CA C60176) Decision at 249 A.C.W.S. (3d) 564 was affirmed. 264 A.C.W.S. (3d) 562. Contracts UNCONSCIONABILITY Daughter rebutted presump- tion of undue inf luence in con- nection with memorandum of agreement with mother Memorandum of agreement (MOA) was made between daugh- ter and mother. Daughter was given title to mother's house in exchange for payment of $100,000 and promise that mother could remain in house for rest of her life. Mother died after MOA was made. Son challenged validity of MOA, but was unsuccessful. Son appealed. Appeal dismissed. Trial judge properly found that mother had sufficient understanding of MOA to sign agreement. There was presumption of undue in - f luence given mother/daughter relationship. Daughter properly rebutted presumption, based on evidence of her interactions with mother and legal advice that was provided to mother. Lawyer for mother took proper steps to ex - plain MOA, out of daughter's presence. Mother was also assisted by lawyer who spoke her Macedo- nian language. This advice did not meet formal criteria for indepen- dent legal advice, but given advice as whole it was not necessary for it to do so. Fact that mother died before title was transferred did not invalidate MOA. MOA was not contract for services. Donis v. Georgopoulos (Mar. 8, 2016, Ont. C.A., E.E. Gillese J.A., Grant Huscroft J.A., and B.W. Miller J.A., CA C58818) Decision at 240 A.C.W.S. (3d) 67 was affirmed. 264 A.C.W.S. (3d) 652. Employment WRONGFUL DISMISSAL No duty to mitigate where contract specifies penalty for early termination Appellant, employed pursu- ant to five-year term employ- ment contract (Employment Contract) terminated without cause after 23 months. Appellant commenced action for breach of contract, seeking compensa - tion for unexpired portion of contract. Subsequent motion for summary judgment granted but motion judge awarded com - mon law damages for wrong- ful dismissal. Employer's right to early termination without cause was governed by Clause 8.1 which motion judge found unenforceable due to ambiguity. That finding was not appealed. Motion judge held that remain - ing provisions of Employment Contract did not demonstrate intention by parties to displace common law presumption of reasonable notice (or pay in lieu) in event of termination without cause. He therefore rejected ap - pellant's argument he was en- titled to contractual damages for unexpired term. Appellant's appeal allowed. Motion judge erred in holding that Employ - ment Contract, without Clause 8.1, failed to rebut common law presumption that every employ- ment contract includes implied term that employer must provide reasonable notice to employee prior to termination of employ - ment by clearly specifying some other period of notice. Employ- ment agreement which states unambiguously that employ- ment is for fixed term ousts im- plied term that reasonable notice must be given for termination without cause. If parties to fixed term employment contract do not specify pre-determined no - tice period, employee is entitled, on early termination, to wages employee would have received to end of term. Employment Contract was sufficiently clear to oust common law presump - tion of reasonable notice on ter- mination. Appellant was entitled to compensation he would have earned to end of Employment Contract. There is no duty to mitigate where contract specifies penalty for early termination. It does not matter whether penalty is specified expressly or is by de - fault the wages and benefits for unexpired term. Howard v. Benson Group Inc. (Apr. 8, 2016, Ont. C.A., E.A. Cronk J.A., S.E. Pep - all J.A., and B.W. Miller J.A., CA C60404) Decision at 253 A.C.W.S. (3d) 623 was reversed. 264 A.C.W.S. (3d) 665. Privacy Legislation GENERAL Application for declaratory relief struck out where manda- tory statutory schemes for reso- lution of claims for breach of privacy rights available Applicant, who was insured un- der mother's insurance policy with respondent insurer, was in car accident. Insurer paid for damages to car and some medi - cal expenses. Applicant brought action against insurer for pay- ment of certain accident benefits. Applicant claimed that confiden- tial and private health-related in- formation that she had provided to insurer was wrongly transmit- ted to persons outside province without her prior knowledge and consent. Applicant applied for declaration that insurer was in breach of Personal Information Protection and Electronic Docu - ments Act (Can.) (PIPEDA) and Insurance Act (Ont.) (IA). Insur- er's motion to strike out applica- tion was granted. Motion judge determined that, given assertion of same complaints in pending action and lodging of similar complaints in statutory dispute resolution schemes established by PIPEDA and IA, application was abuse of process. Applicant appealed. Appeal dismissed. Motion judge properly conclud - ed that declaratory relief should not be granted where it would not resolve disputes between parties and there were other reasonably effective procedures available for dealing with those disputes. Applicant's allegations were squarely pleaded in her ac - cident benefits action, and there was clear overlap between that action and her application. Ap- plication was misconceived and designed to circumvent man- datory statutory schemes for resolution of claims for breach of privacy rights and additional allegations that insurer engaged in unfair business practices. Pro - posed fresh evidence was irrel- evant to core issues and wholly failed to meet test for admission on appeal. There was no basis for appellate interference with motion judge's costs award as it was neither plainly wrong nor tainted by any error in principle. Hordo v. State Farm Mutual Automobile Insurance Co. (Mar. 29, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and S.E. Pep - all J.A., C60767) Decision at 255 A.C.W.S. (3d) 94 was affirmed. 264 A.C.W.S. (3d) 787. Torts LIBEL AND SLANDER Notice under Libel and Slander Act does not require same par- ticularity as statement of claim Action arose out of two publica- tions, one broadcast and other printed. Plaintiff alleged that defamatory statements were made that created link between it and Hamas supporters that attended pro-Palestinian rally. Defendants brought successful motion to determine whether plaintiff complied with notice requirements under s. 5 of Libel and Slander Act (Ont.) prior to bringing action. Plaintiff ap - pealed. Appeal allowed. Motion judge erred in holding that no- tices were deficient. Plaintiff 's notices specified matter com- plained of in article, both with respect to statements in and in- ferences arising from article in its entirety, and its authors, date and manner of publication. Any fur- ther particularity was required in plaintiff 's statement of claim, but not in notices. CUPW v. Quebecor Me - dia Inc. (Mar. 14, 2016, Ont. C.A., H.S. LaForme J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60867) Decision at 256 A.C.W.S. (3d) 738 was reversed. 264 A.C.W.S. (3d) 818. Ontario Criminal Cases Breathalyzer PROOF OF BLOOD-ALCO- HOL LEVEL Claim of error or malfunc- tion of approved screening device had no air of reality Accused brought disclosure ap- plication at trial for impaired driving and driving "over 80." Accused sought records con- cerning history and perfor- mance of device used to measure his blood alcohol concentration. Records sought were not subject of first party records disclosure. Records had no association with offence with which accused was charged and were not created or located as part of investigation of accused. Records were not in possession of Crown but gen - erated by and in exclusive con- trol of police service and were thus third party records. Test of "likely relevance" for production of third party record not met. Nothing in routine disclosure provided to accused suggested error or malfunction in admin - istration of breath test. Claim of operator error or instrument malfunction had no air of reality. R. v. Jackson (Dec. 2, 2015, Ont. C.A., H.S. LaForme J.A., David Watt J.A., and Gloria Ep - stein J.A., CA C58751, C58754) 128 W.C.B. (2d) 460. Charter of Rights SEARCH AND SEIZURE Police entering and remaining in wrong apartment was negligent and violated accused's rights Trial judge excluded evidence seized from accused's apartment pursuant to s. 24(2) of Charter and acquitting her of drug of - fences. Police had mistakenly en- tered accused's basement apart- ment while executing warrant to search neighbouring apartment of suspected drug dealer. Police remained in accused's apart - ment and searched after realizing she was drug dealer initially tar- geted in warrant. Police obtained second warrant to search ac- cused's apartment during course of search. Trial judge held first warrant invalid for failing to ac- curately describe premises to be searched. Trial judge held police conduct in remaining in accused's residence rendered search pursu - ant to both first and second war- rants unlawful. Trial judge held police conduct in entering wrong apartment negligent and crossing into f lagrant violation of accused's rights by remaining in apartment. Crown's appeal dismissed. First warrant was invalid by failing to adequately describe premises to be searched. Second warrant was invalid as obtained on strength of information illegally obtained by police by staying in residence after realizing warrant did not au - thorize their presence. Trial judge overstated importance of mistake but was correct subsequent con- duct of remaining in apartment without authorizing very serious. Impact on accused's Charter- protected interests clearly very serious. Society's interest in justice system distancing itself from f la - grant violation of accused's rights outweighed adjudication of case on merits. R. v. Ting (Jan. 20, 2016, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Mill - er J.A., CA C58999) 128 W.C.B. (2d) 452. Costs GENERAL Costs awarded against Crown after mistrial declared were set aside Three accused were charged with kidnapping, extortion, and assault. About month into their trial, Crown realized that it had not disclosed important inculpatory evidence. Evidence consisted of records for number of cell phones connected with accused. Trial judge concluded that mistrial was warranted be - cause of failings on part of police and Crown. Trial judge quanti- fied on basis of civil cost regime under Rules of Civil Procedure. Trial judge declared mistrial and ordered Crown to pay costs to accused totalling $580,086.61. Crown appealed from those costs orders. Appeal allowed; order for costs set aside. Costs award against Crown will not be appropriate and just remedy under s. 24(1) of Charter absent finding that Crown's conduct demonstrated marked and un - acceptable departure from rea- sonable standards expected of prosecution, or something that is "rare" or "unique" that must at least result in something akin to extreme hardship on accused. Trial judge erred in equating negligence with f lagrant or marked departure from norm. There was no suggestion in this case of intentional failure to pro - vide disclosure in timely fash- ion. In fact trial judge expressly found there was no evidence of deliberate misconduct on part of Crown. Defence inaction was relevant factor to consider in deciding whether failure to disclose cell phone records was marked and unacceptable de - parture. There was no evidence of extreme hardship, or that ac- cused were unable to defend themselves. While not neces- sary to be determined, court found it was error to import civil costs regime into criminal law context. Fact that one or two of accused was legally-aided was relevant when determining if either suffered financial hard - ship, and if either was deprived

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