Law Times

Page 14 OctOber 3, 2016 • Law times www.lawtimesnews.com CASELAW to develop software with X. Applicant entered into series of employment relationships with corporate respondent and subsequently he and his com- pany entered into contractual relationships with corporate respondent. Applicant claimed that he and X were joint authors and joint owners of copyright in software. Applicant claimed declarations and remedies re- lated to alleged copyright in- fringement and infringement of moral rights. Application dismissed. Applicant sought leave to file additional affida- vit in support of his applica- tion. Motion dismissed. While it wasn't clear that all evidence was available to applicant when he swore his main affidavit, it was available when he filed his record and his requisition for hearing. There was no basis for court to be admitting this evi- dence on day of hearing. Appli- cant did not demonstrate that introduction of new evidence was in interest of justice and would assist court. Respon- dents would be prejudiced by admission of evidence. Andrews v. McHale (June 3, 2016, F.C., Richard F. Southcott J., T-832-15) 269 A.C.W.S. (3d) 152. Criminal Law PROCEEDS OF CRIME Penalty to be re-determined by Director on merits Director of Financial Trans- actions and Reports Analysis Centre of Canada found that applicant violated Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) by failing to appoint compliance officer, failing to develop and apply up-to-date written compliance policies and procedures, failing to assess and document risks, and failing to develop and maintain writ- ten, ongoing compliance train- ing program for its employees. Director imposed penalties to- talling $27,000. Director's find- ings of culpability were upheld on appeal, but quantum of pen- alty was quashed. Director im- posed revised penalty of $9,000. Appeal by applicant allowed in part. Reasonableness of Di- rector's findings of culpability was determined on appeal and could not be re-argued on this appeal. Court could only con- sider reasonableness of revised penalty. Applicant said it could not afford to pay $9,000 pen- alty. Director apparently used strict and undisclosed guide- line containing formulae for assessment of statutory penal- ties. Guidelines must not be ap- plied as if they have force of law. Director's discretion cannot be fettered by excluding from consideration evidence bear- ing on her statutory mandate. Section 73.11 of Act emphasises non-punitive approach which allows for degree of f lexibility in assessment of penalties and requires Director to be mind- ful of all relevant mitigating and aggravating circumstances. There was nothing to suggest that Director refused to consid- er relevant evidence bearing on calculation of imposed penal- ties. However, penalty decision must be set aside because court could not tell how Director cal- culated base figures and reduc- tions that were applied. Penalty to be re-determined by Direc- tor on merits. Max Realty Solutions v. Canada (Attorney General) (June 3, 2016, F.C., R.L. Barnes J., T-1916-14) 269 A.C.W.S. (3d) 2. Ontario Civil Cases Appeal PROCEDURE Motion judge's determination that limitation period had not run was not final order Plaintiff brought action for payment for equipment it sup- plied to defendant. Defendant's motion for summary judg- ment on basis that equipment was returned to plaintiff was dismissed. Defendant brought motion for leave to appeal and sought permission for late fil- ing of notice of appeal. Mo- tion dismissed. Motion judge's determination that limitation period had not run was not binding and was not final or- der. Were court to grant leave to file notice of appeal, it would not have jurisdiction to enter- tain appeal. Vanden Bussche Irrigation & Equipment Ltd. v. Kejay Investments Inc. (Aug. 4, 2016, Ont. C.A., K.M. Weiler J.A., In Chambers, CA M46741) 269 A.C.W.S. (3d) 10. Constitutional Law CHARTER OF RIGHTS There was no evidence that accused was denied right to counsel Police officer stopped accused as part of stop check program, smelled beverage alcohol, and noted that his eyes were glossy. Accused failed roadside screen- ing test, was arrested, and was informed of his right to counsel and availability of legal aid. He declined to call lawyer but said he needed to go to bathroom. Accused was transported to police station, where he was al- lowed to go to bathroom and then provided breath samples that showed he was over legal limit. Trial judge held that ac- cused's rights under s. 10(b) of Canadian Charter of Rights and Freedoms were not in- fringed and admitted certificate of analysis. Accused was con- victed of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Appeal dismissed. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to coun- sel under s. 10(b) of Charter was breached. Trial judge did not err in law in finding that accused's right to counsel un- der s. 10(b) was not breached. Officer clearly gave accused his right to counsel, explained what that meant, and offered to pro- vide list of lawyers. Accused did not indicate that he was under impression he had to choose between bathroom or exercis- ing his right to counsel, or that he was so overcome by need to urinate that he could not focus his mind on right to counsel. Accused gave no indication that he did not understand process, and at no time indicated any interest in calling lawyer. Trial judge's findings that accused clearly declined to take steps to engage his right to counsel were supported by evidence. There was no evidence that accused was denied right to counsel or that he took steps to invoke his Charter rights. While accused had pressing need to urinate, there was no evidence that his attention or ability to under- stand was in any way compro- mised. Evidence was reason- ably capable of supporting trial judge's conclusion. R. v. DaFonte (July 5, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C59811) Decision at 247 A.C.W.S. (3d) 811 was reversed. 269 A.C.W.S. (3d) 55. Contracts TERMS Trial judge applied correct principles applicable to interpretation of oral contracts City awarded contract to defen- dant O Corp. to provide win- ter road maintenance services for five winter seasons, which required O Corp. to provide 20 specialized snow-removal vehicles and deposit. O Corp. entered into oral arrangement with two plaintiffs, S Ltd. and H Inc., for provision of trucks. After one season, O Corp. told S Ltd. and H Inc. their services were no longer required. Trial judge allowed S Ltd. and H Inc.'s actions against O Corp. for damages for breach of contract on basis that agreement was for five seasons. Judge held that S Ltd. and H Inc. had oral con- tracts with O Corp. for provi- sion of snow removal services as subcontractors. Judge held that contracts were for term of five winter seasons and that O Corp. wrongfully terminated con- tracts after one winter season. Judge held that S Ltd. and S Inc. were entitled to damages which ref lected revenue they could reasonably have expected to generate from contracts, less ad- ministration fees, less revenues generated through mitigation. Judge awarded S Ltd. $350,372 and H Inc. $700,000. O Corp. appealed judgment in favour of S Ltd.. Appeal dismissed. Judge did not make any errors. Judge applied correct principles ap- plicable to interpretation of oral contracts and considered factu- al matrix surrounding making of subcontract with S Ltd.. Judge placed considerable weight, as he was entitled to do, on fact that S Ltd. and H Inc. had pro- vided deposits to O Corp. that mirrored their proportionate share of deposit with city for full five-year period. Judge applied proper measure of damages, as being what was necessary to put S Ltd. in same position it would have been in had subcontract not been breached. S & J Gareri Trucking Ltd. v. Onyx Corp. (June 17, 2016, Ont. C.A., E.A. Cronk J.A., R.A. Blair J.A., and J. MacFar- land J.A., CA C59373) Decision at 244 A.C.W.S. (3d) 592 was af- firmed. 269 A.C.W.S. (3d) 63. Damages GENERAL No basis for appellate intervention in trial judge's assessment of damages Plaintiff subsidiary H Inc. was awarded subcontract by L Inc. for design, supply and installa- tion of concrete components to parking garage project. Plain- tiff parent P Inc., who would design and manufacture com- ponents for projects, retained defendant engineer through his firm for engineering drawings for project. There were issues as to accuracy and timeliness of drawings, and P Inc. retained another engineering firm to complete project. Plaintiffs brought action against defen- dants for breach of contract and negligence; defendants brought third-party claim against insur- ers for indemnification. Action allowed; third-party claim al- lowed in part. Plaintiffs were awarded damages relating to back charges imposed by proj- ect's general contractor L Inc. for delay and drawing errors, additional expenses paid by plaintiffs to complete contract and for supplying drawings, and added production and management costs incurred by P Inc.. Trial judge found that back charges were made up of labour and materials provided by L Inc. directly as well as charges incurred on account of labour and material supply by sub-trades. She found that only two-thirds of back charges re- lated to costs of work extending into winter would be allowed, as L Inc. would have incurred some winter costs even if H Inc.'s work had been completed by agreed-upon date of Nov. 17. Claimed amounts were reduced where it was unclear why H Inc. was charged for work or how certain charges or expenses related to errors or delay. Trial judge found that plaintiffs were entitled to labour costs and supplier relating to repairing product and installing winter enclosure due to defendants' delay and errors. She ruled that P Inc. was entitled to damages for cost of providing "as built" drawings and for inefficiencies related to inaccurate drawings. Defendants appealed; third- party insurer cross-appealed. Appeal allowed in part on other grounds; cross-appeal dis- missed. Trial judge's assessment of damages attracts consider- able deference from reviewing court. Trial judge's approach to assessment of damages was cor- rect. Her assessment of dam- ages in each of these categories was based on evidence and there was no basis for appellate intervention. Hollowcore Inc. v. Visoc- chi (July 29, 2016, Ont. C.A., K.M. Weiler J.A., E.A. Cronk J.A., and M.L. Benotto J.A., CA C59540, C59541) Decision at 247 A.C.W.S. (3d) 340 was re- versed. 269 A.C.W.S. (3d) 182. Employment WRONGFUL DISMISSAL Action seeking damages for wrong ful dismissal was dismissed Employee worked for employer as general labourer and roofer. Employee did not get along with first foreman he was assigned to and asked to be reassigned to another foreman. Employee had been absent from work on number of occasions. Employee claimed his employment was terminated by text message sent to him by second foreman say- ing that he was done working with him. Employee brought action seeking damages for wrongful dismissal. Action dismissed. Employee's employ- ment ended after text message but text message was not notice of dismissal. Language of text message did not state that em- ployee was fired, but that fore- man would no longer work with him, and tone of message spoke to frustration with employee's frequent absences. Employee never received any formal let- ter from anyone in management notifying him that his employ- ment was terminated or that he was laid off. Employee misin- terpreted message he was given. Employee walked away from job because he failed to consider asking for transfer to another foreman, he did not consider asking for clarification of his employment status, and he was author of his own misfortune. Employee was not wrongfully dismissed. McClelland v. King Coat- ing Roofing Inc. (March 10, 2016, Ont. S.C.J., Jack Zwicker D.J., Richmond Hill SC-15- 00104492-0000) 269 A.C.W.S. (3d) 83. Family Law CUSTODY Concession made by mother was not material change in circumstances Parties had two children and separated in 2009. Parties agreed on comprehensive final order that granted mother primary care, access to father, and regime for making and communicating decisions regarding children, but giving final decision mak- ing authority to mother. Father's motion to change final order for shared parenting on week- about basis and for removal of mother's decision making au- thority was dismissed. Motion

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