Law Times

November 21, 2016

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JPs won't get additional salary hike BY MICHAEL MCKIERNAN For Law Times T he provincial government needs to face a higher bar- rier when rejecting inde- pendent judicial pay com- missions, says a Toronto lawyer after the Divisional Court upheld its decision to deny justices of the peace a significant salary boost. In The Association of Justices of the Peace of Ontario v. Ontar- io, a three-judge panel of the court ruled that the government "had a rational basis" to depart from the recommendation of the majority of the Sixth Justices of the Peace Remuneration Commission. In its report, two of the three commission members recom- mended a 16.4-per-cent pay rise over a four-year period. However, the provincial government sided with its own appointee to the com- mission, who found that an auto- matic rise of 8.2 per cent guaran- teed under a previous agreement was enough of an increase. But James Morton, a former president of the Ontario Bar As- sociation who has acted for the AJPO in the past, says the "rational basis" test sets the bar too low for decision-makers in government. "Eventually, I would like to see commission reports for all judi- cial officers, not just justices of the peace, that are binding unless there are truly extraordinary cir- cumstances," says Morton, who did not represent the AJPO in this proceeding. "For the moment, it seems to me like it's far too easy for the govern- ment to simply come up with a rea- son why they don' t like the recom- mendations, and not implement them. That leads to an emascula- tion of the report. Why should we bother with a commission which is lengthy, expensive and compli- cated if, at the end of the day, one of the parties can decide not to pay any attention to it?" he adds. Patrick LeSage, the former chief justice of the Ontario Su- perior Court of Justice, chaired the commission, sitting with two BURDENS FOR BUSINESS? Legislative changes create potential exposure P7 FOCUS ON Environmental Law P8 See Benefit, page 2 PM #40762529 $5.00 • Vol. 27, No.37 November 21, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow Tom Curry says he is 'pleased the court agreed' with his submissions about benefits for jus- tices of the peace, in a recent Divisional Court ruling. TRUMP HAT BLOWBACK Complaint to judicial council over courtroom attire P3 BY ALEX ROBINSON Law Times T he Court of Appeal has ruled that Ontario's courts should enforce arbitration agreements where pos- sible, especially when dealing with broad arbitration clauses. In Haas v. Gunasekaram, the court overturned an Ontario Su- perior Court judge's refusal to stay an action in a dispute over a share- holder's agreement. In the decision, Court of Ap- peal Justice Peter Lauwers said the motion judge's approach was in error. "The law favours giving effect to arbitration agreements," Lauw- ers wrote in the decision. "This is evident in both legislation and in jurisprudence." Some lawyers say the Court of Appeal decision brings clarity to this area of the law and that it con- firms Ontario is a an arbitration- friendly jurisdiction. Robert Wisner, of McMil- lan LLP, says the court of appeal decision helps bring certainty to the scope and enforceability of arbitration clauses in shareholder agreements. "Courts shouldn't be looking to draw fussy distinctions . . . be- tween claims going to arbitration and those that don't go to arbi- tration. They should just adopt a common sense approach," he says. In Haas, the respondent and plaintiff, Andreas Haas, entered a shareholders' agreement with the three defendants and invested $200,000 in a Toronto restaurant, which failed. Haas then filed a lawsuit saying the three defendants — Danushan Gunasekaram, Luca Viscardi and Shenlu Feng — had induced him into the shareholder's agreement through fraudulent misrepresen- tations. He claimed misrepresentation, breach of fiduciary duty and op- pressive behaviour. The defendants filed a motion to have the action stayed under s. 7 of the Arbitration Act so that it would proceed through arbitra- tion, as there was an arbitration agreement in the shareholder's agreement. But the motion judge, Ontario See Decision, page 2 Robert Wisner says a recent decision helps bring certainty to the scope and enforceability of arbitration clauses in shareholder agreements. Photo: Robin Kuniski 'The law favours giving effect to arbitration agreements' Enforce arbitration agreements: ruling & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM One-Year Subscription Includes: • 11 issues of both print and digital editions • FREE exclusive access to the Canadian Lawyer digital edition archives • FREE weekly e-newsletter: Canadian Legal Newswire Access a free preview at: @canlawmag 7KHXOWLPDWHVRXUFHIRUWRGD\·VOHJDOSURIHVVLRQ 416.609.3800 I 1.800.387.5164 To place an order please call 416.609.3800 or order online at: *Plus applicable taxes Subscribe to Canadian LawyerWRGD\IRURQO\ Untitled-4 1 2016-11-16 3:24 PM

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