Law Times

Page 14 January 23, 2017 • Law Times www.lawtimesnews.com complainant's case, disregarded advice of human resources rep- resentative on panel, and contin- ued to refuse to consider docu- mentation complainant supplied in support of candidacy even after learning obstacles to pro- viding written references. Tribu- nal's finding that complainant made out prima facie case of dis- crimination was reasonable and its determination that employer failed to adequately explain its failure to consider written docu- ments provided by complain- ant could not be challenged as it was grounded in large part in Tribunal's factual findings and credibility determinations. Tri- bunal's decision was reasonable and Federal Court erred in con- cluding otherwise. Hughes v. Canada (Attor- ney General) (2016), 2016 Car- swellNat 5737, 2016 FCA 271, Trudel J.A., Scott J.A., and Mary J.L. Gleason J.A. (F.C.A.); re- versed (2015), 2015 CarswellNat 10092, 2015 CarswellNat 6031, 2015 FC 1302, 2015 CF 1302, Jocelyne Gagné J. (F.C.). Natural Resources FISH AND WILDLIFE Licences Minister of Fisheries and Oceans did not exceeded jurisdiction Applicants traditionally fished for scallop in Scallop Fishing Area 29, except for western por- tion of that area ("West 29"), which was closed to scallop fishing. Over time, West 29 was opened to scallop fishing. Ini- tially scallop fishers from Scallop Fishing Area 28 (SFA 28 fishers) were authorized to fish for scal- lops intermittently in West 29. Subsequently, applicants were also authorized to fish in these waters. Applicants brought ap- plication for judicial review of one or more fishing licenses is- sued by Minister of Fisheries and Oceans to one or more of SFA 28 fishers, alleging that Minis- ter had exceeded his jurisdic- tion by extending, using license conditions, waters in which SFA 28 fishers could take scallops. Application was dismissed. Ap- plicants appealed. Appeal dis- missed. Applicants alleged that form of license issued to SFA 28 fishers was defective in that it only contained conditions and did not include words which granted permission to fish at all, let alone in West 29. License in issue contained all words neces- sary to authorize fisher to carry on activity of scallop fishing in areas and during times permit- ted by license or as result of any applicable regulation. There was no formal defect which would render licenses issued in form in issue invalid. Giroux v. Canada (Attorney General) (2016), 2016 Carswell- Nat 5919, 2016 FCA 288, J.D. De- nis Pelletier J.A., David Stratas J.A., and Wyman W. Webb J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 1857, 2015 Car- swellNat 3650, 2015 FC 683, 2015 CF 683, Michel Beaudry J. (F.C.). Public Law CROWN Contractual principles regarding Crown Plaintiff 's action for damages for breach of contract was dismissed Crown agency issued Request for Proposal ("RFP") for provi- sion of engineering and techni- cal support services. Plaintiff TPG Ltd. was ranked second in assessment of its technical and financial ratings, and contract was awarded to C Inc.. Federal Court dismissed plaintiff 's ac- tion for damages for breach of contract. Court held that Crown owed and breached its duty of fairness to plaintiff because eval- uators who assessed competing bids adjusted way in which they applied two evaluation crite- ria to plaintiff but not to C Inc.. Court did not find any unfair- ness in any other evaluation cri- teria or in overall conduct of bid process. Court concluded that breach of duty of fairness did not give rise to any compensable damages, as even if plaintiff had received full marks for criteria, C Inc.'s bid would still have been highest-rated. Court held that plaintiff had not established that C Inc.'s bid was non-compliant. Plaintiff appealed; Crown cross- appeal. Appeal and cross-appeal dismissed. As Crown sought to appeal reasons finding Crown breached contract, and no ap- peal lies from court's reasons, cross-appeal was dismissed. Plaintiff could not seek damages for lack of integrity in bid pro- cess because it did not seek such remedies from Federal Court. In determining that plaintiff had not established any dam- ages f lowing from breach, Court applied correct legal principles. Court did not make any error in finding that plaintiff did not establish that it would have won bid had breach not occurred. Court did not err in its interpre- tation of requirements of RFP or in its determination that plain- tiff did not establish that C Inc.'s bid was non-compliant. TPG Technology Consult- ing Ltd. v. R. (2016), 2016 Car- swellNat 5817, 2016 FCA 279, Johanne Gauthier J.A., Rich- ard Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 3860, 2014 CarswellNat 5573, 2014 FC 933, 2014 CF 933, Russel W. Zinn J. (F.C.). (F.C.A.); affirmed (2015), 2015 CarswellNat 238, 2015 CarswellNat 2627, 2015 FC 14, 2015 CF 14, Russel W. Zinn J. (F.C.). Ontario Civil Cases Contracts CONSTRUCTION AND INTERPRETATION Resolving ambiguities There was no genuine issue for trial Motion judge granted summary judgment. Defendant appealed. Appeal dismissed. Defendant took position that motion judge should not have granted sum- mary judgment based on writ- ten agreement, affidavits and cross-examinations. Defendant took position that he should have found genuine issue for trial based on need to make credibility findings after hearing viva voce evidence, because of ambiguities in agreement. Mo- tion judge interpreted contract based on terms of agreement and of security granted pursu- ant to agreement. Motion judge rejected position of defendant that he never intended to guar- antee principal amount of funds that had been provided by plain- tiff. Motion judge considered all of evidence before him in reach- ing his interpretation. There was no genuine issue for trial that re- quired any further evidence. 1161267 Ontario Ltd. v. Mei (2016), 2016 CarswellOnt 18096, 2016 ONCA 881, Feldman J.A., Lauwers J.A., and Miller J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12399, 2015 ONSC 5146, Coroza J. (Ont. S.C.J.). REMEDIES FOR BREACH Damages Trial judge erred by not applying discounted cash f low analysis Aboriginal IT company claimed to have entered into contract with defendant, pursuant to which defendant would invest in company and defendant could benefit from company's Aboriginal status in relation to government projects and pro- curement. Company claimed that its filing for bankruptcy was result of defendant breach- ing contract and not making promised payments. Plaintiff, former creditor of company, purchased company's action against defendant from trustee in bankruptcy. Plaintiff 's action was allowed, with trial judge finding that binding contract existed and awarding $11 mil- lion in damages. Defendant appealed. Appeal allowed in part, with award reduced to $1.3 million. Trial judge erred in concluding that circumstances constituted kind of unfairness that would justify displacement of presumption that damages would be assessed as of date of breach. Trial judge erroneously focused on maximizing poten- tial benefits to company under contract without taking into account company's very pre- carious financial situation with significant liabilities that had to be satisfied. Trial judge erred by not applying discounted cash f low analysis that both experts agreed was appropriate method if date of breach were to be used for assessing damages. It was open to trial judge to use busi- ness plan for assessing damages, even though it was optimistic presentation of what parties hoped for. Business plan was product of both sides and was only solid financial information available for estimating compa- ny's future loss of opportunity, subject to appropriate tweaking and discounts. Failure to apply discounted cash f low analy- sis as of date of breach meant that risk and unpredictability of company's future cash f low were ignored until point many years after the date of breach, resulting in artificial inf lation of damages. Approach did not take into account cumulative risk that profits set out in busi- ness plan might not materialize. Trial judge failed to consider costs, as well as benefits, of new business venture as required to place company in position it would have been in if contract had been performed. Applying discounted cash f low analysis as fairest method of assessing company's damages and mak- ing substantial discount in light of company's unstable financial condition and uncertainty of new venture, damages should be assessed at $1,300,000. Rougemount Capital Inc. v. Computer Associates Interna- tional Inc (2016), 2016 Carswel- lOnt 17673, 2016 ONCA 847, H.S. LaForme J.A., G. Pardu J.A., and L.B. Roberts J.A. (Ont. C.A.); re- versed (2014), 2014 CarswellOnt 19003, 2014 ONSC 7070, M.A. Sanderson J. (Ont. S.C.J.). Family Law DOMESTIC CONTRACTS AND SETTLEMENTS Effect of contract Trial judge did not err in interpreting final separation agreement Parties were married in 1983 and adopted daughter at birth in 1995. Wife left work to become full time homemaker. Parties separated in 2009. In July 2011 parties entered into partial sepa- ration agreement under which husband was to pay periodic spousal support of $4,000 per month. In January 2013 par- ties entered into final separation agreement. Daughter continued to live primarily with husband. Husband, who had been ter- minated from his employment, agreed to make final spousal support payment of $4,000 for December 2012. Husband began new employment in July 2013. In 2014, wife applied for retroactive spousal support to July 2013 on basis of material change under agreement, also submitting that daughter was no longer child of marriage. Trial judge found hus- band's income to be $152,000 and wife's income to initially be $3,760. Trial judge ordered spou- sal support of $5,400 monthly retroactive to July 2013; $1,900 monthly from May 2015 to April 2016; $1,930 monthly from May 2016 to April 2017; then $2,068 monthly, indefinitely. Three latter amounts were based on wife making withdrawals from Locked-In Retirement Account ($66,250, $65,221, and $62,167, respectively). Husband appealed. Appeal dismissed. Trial judge did not err in interpreting fi- nal separation agreement. Trial judge was entitled to conclude that agreement was not bar to wife's application for support based on change in circumstanc- es. Agreement acknowledged husband had lost job, effected an equalization of property, stipu- lated that cessation of spousal support was subject to future material change, required hus- band to notify wife in event of obtaining future employment, and lacked extensive releases of spousal support. Husband's ar- gument that his continuing sup- port of daughter meant that he did not have to support wife had to be rejected. Trial judge did not err in concluding that daughter was no longer child of marriage and that wife had no continuing obligation to support her. Berger v. Berger (2016), 2016 CarswellOnt 18305, 2016 ONCA 884, K.M. Weiler J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.). Professions and Occupations BARRISTERS AND SOLICITORS Negligence Lawyer's claim for balance owing for fees was allowed Client alleged that in action against JB, lawyers failed to properly account for proceeds of settlement. Client alleged that in action against M and H, law- yers failed to take proper steps to enforce payment agreement re- lating to prior judgment against H and failed to advise client of requirement to make full and frank disclosure when applying for Mareva injunction, leading to client having to accept im- provident settlement. Lawyers brought claim for balance ow- ing for fees, and client counter- claimed for negligence. Claim was allowed and counterclaim was dismissed. Trial judge found that lawyers properly accounted for disputed proceeds of JB set- tlement. Trial judge found that lawyers exercised appropriate judgment with respect to pay- ment agreement based on infor- mation client had provided. Trial judge found that client settled ac- tion underlying Mareva injunc- tion application in H action for reasons unrelated to lawyers. Cli- ent appealed. Appeal dismissed. Client submitted that trial judge committed several errors, but cli- ent was in essence reiterating his arguments at trial and asserting that trial judge erred in failing to accept them. Client also attempt- ed to raise new arguments. Trial judge's findings of fact supported his conclusions and were fully supported by evidence at trial. There was no error in principle. Roy Wise Professional Corp. v. Colaco (2016), 2016 Carswell- Ont 18298, 2016 ONCA 889, Janet Simmons J.A., S.E. Pepall J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 13202, 2015 ONSC 3801, Firestone J. (Ont. S.C.J.). CASELAW

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