Law Times

Page 18 April 10, 2017 • lAw Times www.lawtimesnews.com Designated officer upheld deci- sion. Applicant unsuccessfully brought application for judicial review of designated officer's decision. Applicant appealed. Appeal dismissed. Proper stan- dards of review were chosen and were correctly applied. Federal Court correctly concluded that designated officer did not breach duty to act fairly and it could not be inferred that designated of- ficer did not follow approached described in reasons. Vaillancourt c. Canada (Procureur général) (2017), 2017 CarswellNat 404, 2017 CAF 20, Johanne Gauthier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2035, 2015 CarswellNat 5232, 2015 FC 659, 2015 CF 659, Luc Martin- eau J. (F.C.). (F.C.A.); affirmed (2015), 2015 CarswellNat 3429, 2015 CarswellNat 3430, 2015 FC 660, 2015 CF 660, Luc Martin- eau J. (F.C.). Ontario Civil Cases Alternative Dispute Resolution JUDICIAL REVIEW OF ARBITRATION AWARDS Grounds for review Arbitration award was set aside Parties all worked in real es- tate business and entered verbal agreement to work together to sell property and split commis- sions. Dispute arose about com- mission for one property, with applicant taking position he should receive all commission and respondents asserting com- mission should be equally split amongst all three parties. Agen- cy offered to provide arbitration. Both manual and arbitration agreement entered into by par- ties provided arbitration would be final and binding. Parties all made submissions and ques- tioned each other. Arbitration award provided that commission would be equally split between parties, but there was complete absence of reasons. Applicant brought application to set aside arbitration award. Application granted. Since Arbitration Act came into force, phrase "final and binding" may be insufficient to exclude right of appeal. Respon- dents' argument that arbitration was so simple and informal that reasoning could be inferred was not accepted. Parties made sub- missions and were examined, yet there was no record of this evi- dence or argument. Arbitration committee must have preferred respondents' evidence but there was no explanation why. Ab- sence of reasons offended s. 38 of Arbitration Act and common law requirements. Applicant was entitled to know why his position did not prevail and to assess his options. If appeal resulted, court needed reasons to review, and members of public, particularly those in real estate, would benefit from explanation of how dispute was resolved. As there was no information about committee members, their availability for recall or whether they kept any notes, merely remitting matter for reasons was not viable option. Peters v. D'Antonio (2016), 2016 CarswellOnt 21243, 2016 ONSC 7141, Bruce Thomas J. (Ont. S.C.J.). Family Law DIVISION OF FAMILY PROPERTY Practice and procedure Trial Judge was entitled to wholly prefer evidence of one expert Parties separated after 40-year marriage, leading to protracted matrimonial litigation. Trial judge found in favour of hus- band on most issues, ordering wife to pay $140,000 equaliza- tion and costs in amount of $109,248. Wife appealed. Ap- peal dismissed. Weight to be given by experts' opinions was wholly within province of trial judge who gave cogent reasons for preferring husband's expert over wife's expert valuator of farm equipment. Trial judge's failure to strictly follow cor- rect approach on whether to award unequal share of net fam- ily property did not affect out- come. Financial issues were not complex. Wife held title to mat- rimonial home with equity of about $250,000 while husband owned farm equipment that his appraiser valued at $83,800. Since husband's expert opinion was accepted, it was apparent that there would be substantial equalization payment from wife. Keresturi v. Keresturi (2017), 2017 CarswellOnt 2434, 2017 ONCA 162, G.R. Strathy C.J.O., John Laskin J.A., and G.T. Trot- ter J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9635, 2015 ONSC 3565, R.J. Harper J. (Ont. S.C.J.). DOMESTIC CONTRACTS AND SETTLEMENTS Validity Application to set aside settlement agreement was dismissed Parties were in common-law relationship from 1985 to 1999. Parties moved from Canada to England in 1991 and then to Ireland in 1997. In 1999, par- ties entered into consent agree- ment that included terms for custody and access, temporary child support, share in prop- erty and money, and agreement was incorporated into consent order. Wife moved to Canada and issued statement of claim seeking custody, child support, spousal support and interests in husband's property based on unjust enrichment, implied trust and constructive trust. In 2006, parties entered into final minutes of settlement which provided that husband would pay wife $201,814.00 as lump sum child support for children, and would pay wife $200,000.00 in settlement of all other claims. Both parties were represented by counsel throughout proceed- ings. Nearly six years later, wife brought unsuccessful applica- tion to set aside 2006 agreement and resulting consent order. Trial judge found that husband had failed to disclose assets, but that agreement was fair and that failure to disclose was immate- rial to wife's decision to accept settlement. Wife appealed. Ap- peal dismissed. Wife's grounds of appeal consisted of attacks on factual findings of trial judge, and these findings were detailed, reasonable and grounded in evi- dence. No palpable and overrid- ing error of fact was seen. Hillman v. Letchford (2017), 2017 CarswellOnt 1875, 2017 ONCA 117, K.M. Weiler J.A., M.L. Benotto J.A., and L.B. Rob- erts J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 10048, 2015 ONSC 3670, C.D. Braid J. (Ont. S.C.J.). RELATIONSHIP OF PARENT AND CHILD General principles Minor obtained declaration that she had withdrawn from parental control Relationship between minor and father deteriorated. Minor determined to apply to univer- sity year early, completed her required courses and obtained scholarship to University of Mi- ami. Father insisted that minor return to grade 12. Minor decid- ed to leave and withdraw from parental control. Father began court proceedings in Florida seeking to obtain order requir- ing university to disclose con- tents of minor's application file, and this prompted university to request proof that minor was independent minor. Minor suc- cessfully applied for declaration that she had withdrawn from parental control. Father ap- pealed declaration. Appeal dis- missed. Parents had to be parties to application for declaration, but court had broad discretion to direct extent of their partici- pation. Factors to be considered by court went beyond age of child to include reasons for, and utility of, declaration. Although application judge concluded that father did not need to be named as party, process she followed achieved same result. No reason was seen for appellate interven- tion with respect to declaration. G. (R.) v. G. (K.) (2017), 2017 CarswellOnt 1769, 2017 ONCA 108, E.E. Gillese J.A., M.L. Ben- otto J.A., and L.B. Roberts J.A. (Ont. C.A.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Employer was ordered to pay moral damages in addition to other damages Employee worked with employ- er for nine years and was only woman in plant. Employee was 44 when she was terminated and 48 at time of trial. Employee was sexually harassed by plant main- tenance manager. Employee was terminated without cause. Trial judge found that employee's gender and sexual harassment complaint were likely most sig- nificant reasons for why she was terminated. Employer was ordered to pay $60,000 in moral damages for breach of its implied contractual obligation of good faith in manner of employee's dismissal. In additional to moral damages, trail judge held that employee was entitled to general damages of 10 months' salary in lieu of notice of termination and $20,000 damages for sexual harassment claim. Employer ap- pealed award of moral damages. Appeal dismissed. Although tri- al judge considered relevant fac- tors: fact that employees were in- structed to "dig up dirt" on em- ployee's performance; and that employee was told her job was not in jeopardy, when in facts her termination was in motion; that another employee advised manager about employee's med- ical condition; and that employ- ee's keys were taken from her purse and her car was brought around, as well as irrelevant fac- tors, award was nonetheless jus- tified. Ultimately, cause was not pursued, and manager's dealings with employee were completely "disingenuous". Trial judge's consideration of employer's mis- representation that employee's job was secure and that she would be given chance to im- prove, coupled with employer's sudden termination and further representation that her services were no longer needed, were not improper considerations in this context. Trial judge's consider- ation of sexual harassment com- plaint and subsequent investiga- tion were related to manner of termination, even though deci- sion to terminate employee had already been made. Employer's denial of short term disability benefits without adequate evi- dence was breach of good faith obligation. More serious aspects of employer's conduct were ap- propriately considered by trial judge and his assessment of moral damages were not dimin- ished by lesser irrelevant consid- erations he took into account. Doyle v. Zochem Inc. (2017), 2017 CarswellOnt 1733, 2017 ONCA 130, K.M. Weiler J.A., S.E. Pepall J.A., and G.T. Trot- ter J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 19295, 2016 ONSC 3188, Belleghem J. (Ont. S.C.J.). Termination clause in employment agreement contravened Employment Standards Act (Ont.) Employee was hired in 2007 as sales and event planner. In 2015 employer entered into agreement to sell its assets. Employment was terminated, after employee had worked for employer for eight years and four months, at age 48. Employment agreement had termination clause entitling employee to two weeks' notice or pay in lieu thereof for each com- pleted or partial year of employ- ment. Employer paid employee her salary and benefits for her 13 weeks of working notice, plus lump sum equivalent to eight weeks' pay. Employee brought action for damages and motion for summary judgment. Motion judge dismissed motion, finding that employment agreement and termination clause were enforce- able. Employee appealed. Appeal allowed. Employment agreement was not unenforceable merely because employee signed it af- ter starting work. Termination clause in employment agreement contravened Employment Stan- dards Act, 2000. Clause excluded employer's statutory obligation to contribute to employee's ben- efit plans during notice period. Clause also did not satisfy em- ployer's statutory obligation to pay severance pay. On either ground clause was unenforce- able. Employee was entitled to reasonable notice of termina- tion or equivalent in damages. Motion judge made provisional award of nine months' notice, which was within reasonable range and was deferred to. Wood v. Fred Deeley Im- ports Ltd. (2017), 2017 Carswel- lOnt 2408, 2017 ONCA 158, John Laskin J.A., K. Feldman J.A., and C.W. Hourigan J.A. (Ont. C.A.); reversed (2016), 2016 Carswel- lOnt 6402, 2016 ONSC 1412, G. Dow J. (Ont. S.C.J.). Real Property CONDOMINIUMS Practice and procedure Appeal should have been brought to Divisional Court Underlying MS' proposed ap- peal was application disputing condominium fees and liens filed by condominium corpora- tion. MS moved for extension of time within which to perfect ap- peal to court. Motion dismissed. Given enormous costs that have been incurred in action, relative to amounts in issue, it would not be proportionate or in interests of either party for proceedings to be prolonged or for further costs to be incurred when deci- sion quashing appeal for want of jurisdiction seems inevi- table. Appeal should have been brought to Divisional Court, and any necessary motion to ex- tend time to appeal should have been brought before that court. Sennek v. Carleton Condo- minium Corporation No. 116 (2017), 2017 CarswellOnt 2279, 2017 ONCA 154, G. Pardu J.A. (Ont. C.A.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Charter remedies [s. 24] Trial judge did not overemphasize seriousness of offences CASELAW

• Cover