Law Times

June 12, 2017

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Law Times • June 12, 2017 Page 19 CASELAW tion allowed. Principal failed to establish defences of breach of natural justice or fraud. Issue of proper service had already been decided against principal by Quebec court. Issue of denial of right to be heard by failing to set aside noting in default had also been decided against principal by Quebec court and would not be re-litigated here. Principal's lack of facility in French did not amount to failure of natural jus- tice. Submission about lack of judicial assessment of damages went to merits and was there- fore not properly challenged in this proceeding. Failure to bring bankruptcy proceedings to attention of Quebec court had not amounted to fraud and had no affect on judgment against principal. Olympique CMCT Inc. v. Industries Pancor Ltée (2017), 2017 CarswellOnt 4403, 2017 ONSC 1929, W. Matheson J. (Ont. S.C.J.). Family Law CUSTODY AND ACCESS Variation of custody order Mother granted gradual access through facilitated supervised access program Child was placed in care of chil- dren's aid society at age of four months due to concerns with parents' drug use, transient life- style, criminal activity and do- mestic violence. Mother, aged 18, did not visit on regular basis or participate in child protection proceedings but father, aged 20, did. Child was returned to fa- ther's care after two years. One year later, father was granted sole custody. Mother was grant- ed supervised access, increasing to unsupervised and overnight access in stages, but visited only once. Several years later, mother claimed father had been abusive but that she was now in much different place, not in a rela- tionship and focused on being mother to two happy, healthy children. Father denied abuse but claimed mother was still in- volved in abusive relationships, drugs, transience and criminal activity and that access would not be in child's best interests. Mother brought motion to vary, seeking order for joint custody and access gradually increas- ing to shared parenting. Motion granted in part. Even though children's aid society continued to be involved and have some concerns, mother had made progress, demonstrating insight into past and making efforts to improve parenting. It would be in child's best interests for moth- er to have access. Mother was, however, essentially a stranger to child, now aged seven, with result reintroduction should be gradual and facilitated through supervised access program. While it would not be appropri- ate for mother to be involved in making decisions for child at this time, father should inform her of all major decisions and provide her with information, including school report cards, assessments and medical re- ports, on regular basis. Hoskins v. Charlebois (2017), 2017 CarswellOnt 3355, 2017 ONSC 1545, A. Doyle J. (Ont. S.C.J.). SUPPORT Child support under federal and provincial guidelines Section 7 expenses including prospective university expenses Parties had joint custody of child who primarily resided with mother when she was not attending university. Parties signed comprehensive separa- tion agreement where father agreed to pay child support of $550 per month and to share special and extraordinary ex- penses in proportion to their in- comes with father's income be- ing $55,000 per year and moth- er's income being $66,000 per year. Mother brought motion to impute income to father; father brought cross-motion to reduce child support. Motion granted in part; cross-motion dismissed. In separation agreement par- ties agreed upon comprehensive formula for calculation of how to share s. 7 expenses, includ- ing prospective expenses such as university. There was no reason why proportionate sharing of s. 7 expenses as set out in separation agreement should be changed, and all s. 7 expenses would con- tinue to be paid in proportion to parties' incomes. For purpose of calculating income for purposes of s. 7 expenses, father's 2015 income was $70,748 and moth- er's 2015 income was $78,606. After deducting OSAP, grant, RESP and child's contributions, remaining balance of post- secondary education expenses was $2,092.49, which was to be shared proportionately between parties with father paying 47 percent and mother paying 53 percent. Cameron v. Cameron (2017), 2017 CarswellOnt 4569, 2017 ONSC 2021, Stanley Ker- shman J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Successor employer required to honour employee's employment contract Employee worked for em- ployer under written employ- ment agreement. Term of con- tract ended October 31, 2011, at which time employee was to receive two years' salary $490,000; employee was also to receive $150,000 sabbatical payment. Successor Z Ltd. ac- quired employer and notified employee that his employment would continue under terms of written employment agree- ment. Employee and Z Ltd. en- gaged in fruitless negotiations in September 2011. Employee's employment continued past October 31, 2011 without for- mal agreement. Z Ltd. notified employee on March 1, 2012 that his employment would end on October 31, 2012. Employee sought payments owing under written employment agreement. Employee's motion for summa- ry judgment against Z Ltd. for breach of employment agree- ment was granted. Employer appealed. Appeal dismissed. Motion judge made no error in rejecting Z Ltd.'s argument that employee waived sabbatical in consideration of other benefits, such as increase in salary. Mo- tion judge found, on evidence before him, parties did not come to agreement. Whether s. 9.2 of employment agreement infringed Employment Stan- dards Act (ESA) was irrelevant to this action, and there was no need for Court to address ques- tion. Effectively, Z Ltd. argued that because it did not agree to provide employee with all of his statutory entitlements, entitle- ments that were conditional on early termination, even which never occurred, then employee was to forfeit his contractual entitlements: entitlements that were far greater than what either ESA or common law would have provided. This would have been perverse application of statute that was intended to protect in- terests of employees. Roberts v. Zoomermedia Ltd. (2017), 2017 CarswellOnt 5746, 2017 ONCA 327, Robert Sharpe J.A., P. Lauwers J.A., and B.W. Miller J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 3496, 2016 ONSC 1567, Perell J. (Ont. S.C.J.). Municipal Law COUNCIL MEMBERS Personal liability Councillor not entitled to costs after sexual assault investigation dropped Town councillor brought appli- cation for judicial review against town and external investigator seeking to quash investigator's report regarding town employ- ee's claim of sexual harassment against councillor, and actions of town, including its decision to refer complaint to Integrity Commissioner to carry out in- vestigations it found necessary to determine if there had been a breach of Code of Conduct and if so, to recommend actions to be taken. Integrity Commis- sioner concluded it could not determine whether now former employee's complaint was well founded, as employee would not participate in investigation. Councillor amended his appli- cation for judicial review seek- ing to declare application moot and for his costs. Application dismissed. There were no un- usual circumstances that would justify costs award to councillor as he was not public interest liti- gant and his application raised no issues of general public in- terest. There was no action by town that caused councillor's application to become moot. Event that made application moot was Integrity Commis- sioner's decision not to proceed further with investigation. Fact that town subsequently changed its workplace policy and proce- dure respecting sexual harass- ment was not acknowledgement that town's process was unfair to councillor. In end result, coun- cillor was not vindicated. Town was entitled to $15,000 costs all inclusive. Beros v. Regan (2017), 2017 CarswellOnt 5955, 2017 ONSC 2456, Swinton J., Linhares de Sousa J., and Spies J. (Ont. Div. Ct.). Real Property SALE OF LAND Agreement of purchase and sale Auctioneer entitled to buyer's premium following vendor's bankruptcy C ULC auctioned cottage prop- erty against which mortgages of more than $4.5 million were registered. Vendors represented to C ULC that they had good and marketable title to property and in event of any shortfall, they could still close transac- tion. C ULC agreed to rebate 25 percent of buyer's premium to vendors upon successful closing of transaction. Applicants regis- tered as bidders and deposited $100,000 to escrow agent. Ap- plicants succeeded with bid of $4.3 million and parties execut- ed agreement of purchase and sale ("agreement"). Applicant AF delivered further $330,000 to be held in escrow. Vendors then claimed that were unable to close sale because purchase price was insufficient to dis- charge mortgages on property. Applicant SF entered into new agreement of purchase and sale ("second agreement") for pur- chase of property at same price of $4,300,000, but paid 350,000 more in consideration to close transaction. Vendors made as- signments in bankruptcy. Par- ties each sought relief in relation to $430,000. C ULC awarded $430,000. There was substantial evidence that applicants intend- ed to close agreement, despite having been told by vendors that clear title could not be given due to mortgages registered against property. Applicants were clear- ly determined to close purchase, entering into second agreement for same property at same pur- chase price, but not receiving vendors' credit of $350,000 to which they were entitled un- der terms of their bidder reg- istration auction terms and conditions agreement. Second agreement reserved rights from original agreement. Applicants' conduct in registering caution, paying land transfer tax, and re- serving their rights established on balance of probabilities that they acted with continu- ous intention to close transac- tion throughout. Because two agreements of purchase and sale were, effectively, one continuous agreement, C ULC was entitled to buyer's premium of $430,000 that had been paid into court. C ULC was not obliged to credit applicants with rebate of buy- er's premium which belonged to trustee of vendors' estates in bankruptcy. Fenwick v. Concierge Auc- tions, ULC (2017), 2017 Car- swellOnt 5969, 2017 ONSC 2514, A.M. Mullins J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law EXTRADITION PROCEEDINGS Extradition from Canada USA granted extradition of accused on charges relating to international fraud investigation USA alleged that accused par- ticipated in fraudulent scheme in which victims in the United States were induced by false representations to send funds to bank or wire transfer facility in Lagos, Nigeria. USA sought ex- tradition of accused on charges relating to international fraud investigation. Application al- lowed. Accused was commit- ted into custody pursuant to section 29 of Extradition Act, to await surrender for offence set out in Authority to Proceed. Record of the Case ("ROC") and Supplementary record of the Case ("SROC") contained ad- missible evidence that person who collected wire transfers of funds sent by PB was accused, that victims in United States were induced to send these funds via wire transfer by false representations, that PB was associated with and was receiv- ing instructions from one JH who also instructed accused, that Western Union and Mon- eyGram transfers went from victims to PB and then to ac- cused, and that number of di- rect transfers went from fraud victims to accused via Mon- eyGram and Western Union. All of this evidence supported prima facie case that accused possessed money obtained by or derived from indictable offence. In addition, evidence in ROC and SROC established identity of accused as person who pos- sessed wire transfers derived from fraud and whose extradi- tion was sought by USA. Pass- port obtained by bank in Lagos, Nigeria contained name and birthdate of accused. Booking photo taken by police upon ac- cused's arrest was same person as person before court. There was evidence available for trial on all of essential elements of offence for which he was sought . Based on material in record, jury properly instructed could convict accused of parallel Ca- nadian offence . Test for com- mittal was therefore met. United States of America v. Omoruyi (2017), 2017 Carswel- lOnt 3823, 2017 ONSC 1480, E.M. Morgan J. (Ont. S.C.J.).

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