Law Times

Law Times • June 26, 2017 Page 15 www.lawtimesnews.com CASELAW tiffs. League and clubs claimed that common issues could not be found between Canadian and American-based players, due to operation of American state law. B and P moved for certification of action as class action. Motion granted in part. Class action certified on issues of breach of employment stan- dards and unjust enrichment. Action not certified against American clubs. B and P certi- fied as representative plaintiffs. Criteria for class action was met for all pleaded causes of action. Issues of American law would make it impossible for com- mon issues to be litigated, for all proposed plaintiffs. Prefer- able procedure would be for American-based plaintiffs to litigate matter in correspond- ing state courts. Identifiable class was certified as Ontario- based plaintiffs, between 2012 season and date of certification motion. Berg v. Canadian Hockey League (2017), 2017 Carswel- lOnt 6227, 2017 ONSC 2608, Perell J. (Ont. S.C.J.). Constitutional Law DISTRIBUTION OF LEGISLATIVE POWERS Areas of legislation Bylaw governing operating hours of body rub parlour not ultra vires municipality Respondent T owned and oper- ated body rub parlour licensed by appellant municipality of V and was charged with con- travening section of by–law governing operating hours. At trial, justice of peace accepted T's argument that by–law was outside of V's jurisdiction be- cause it constituted criminal law. Justice of peace struck pro- visions as being ultra vires of municipality. V appealed un- successfully to Ontario Court of Justice (OCAJ). V appealed dismissal. Appeal allowed. Sec- tion 13 of 2005 by–law governs body rub parlours. Justice of peace and OCAJ ignored sig- nificant intrinsic evidence and misapprehended evidence. They failed to examine and characterize purpose of by–law and misstated legal effect of by– law provision in issue. Pith and substance of hours of opera- tion provision, and that of 2005 by–law as whole, was business licensing. By–law was designed to regulate business operating within its municipal borders. It was also aimed at curtailment of nuisance, for which there was evidentiary support, and at sup- pressing conditions that were conducive to crime. Dominant purpose of provisions in issue did not amount to criminal law. First, licensing conditions only applied to licence holder for body rub parlour, not to public at large. It was not enactment of general application. Conditions were part of "larger, compre- hensive regulatory scheme that establishes conditions for ob- taining and maintaining busi- ness licences." Second, purpose was to reduce nuisance by regu- lating body rub parlours so as to suppress conditions conducive to crime. Beneficiaries of 2005 by–law were citizens of V, not victims of any crime. Third, as ref lected in general provisions of licencing by–law, penalty for operating outside of prescribed hours was fine and/or suspen- sion or revocation of licence. There was no prohibition of any criminal act. There was also no duplication with criminal law. Provisions were preventative, not prohibitive. OCAJ erred by failing to give proper scope to municipal objective of business licensing and legislating to sup- press conditions likely to pro- duce crime. OCAJ erred in de- termining that municipality, in exercise of provincial delegated authority, is limited to legislat- ing to suppress conditions that are conducive to crime in gen- eral. Where pith and substance of legislation comes under head of provincial authority, it may also aim to suppress condi- tions conducive to crime, even if those conditions relate to specific offence under Crimi- nal Code of Canada. OCAJ improperly narrowed scope of provincial authority to legislate to suppress conditions condu- cive to crime. York (Regional Municipal- ity) v. Tsui (2017), 2017 Car- swellOnt 3836, 2017 ONCA 230, Doherty J.A., S.E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.). Construction Law STATUTORY REGULATION Repairs, alterations and additions Permitting city to inspect house addition not endangering lives of occupants Respondent father, respondent mother, and respondent daugh- ter owned house. Addition was built at rear of house, without building permit, and in viola- tion of zoning bylaw regarding size and setbacks. After six years of litigation, daughter con- sented to court order requiring her to obtain building permit, failing which city could demol- ish addition at her expense. Building permit was issued, and since that time, city had been attempting to fulfill its obliga- tions under Building Code Act, 1992 to conduct inspections of addition. City brought applica- tion for order authorizing it to inspect addition, among other relief. Application judge grant- ed application and ordered that city be authorized to inspect addition. In doing so, applica- tion judge rejected respondents' argument that inspection of ad- dition would violate rights of respondent parents under s. 7 of Canadian Charter of Rights and Freedoms. Respondents appealed. Appeal dismissed. There was no substance to as- sertion that permitting city to inspect addition would endan- ger lives of respondent parents. Even if some violation of re- spondents' Charter rights could be found, respondents could not establish that violation was not in accordance with principles of fundamental justice. Respon- dents' submissions that order in question somehow affected their presumption of innocence under Charter or that order in question was arbitrary and breach of natural justice found no foundation in record. Toronto (City) v. Tseng (2017), 2017 CarswellOnt 7693, 2017 ONSC 3219, Nordheimer J., Smith J., and Wilton-Siegel J. (Ont. Div. Ct.); affirmed (2015), 2015 CarswellOnt 12070, 2015 ONSC 4992, Stinson J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Clearly successful plaintiff awarded costs of $269,250 Plaintiff was working as man- aging director of employer's Canadian mergers and acquisi- tions division when he was ter- minated without cause after 14 years of employment. Plaintiff 's action for wrongful dismissal was allowed, with damages of $2,596,268.35 awarded. Ad- ditional submissions received on costs and prejudgment in- terest. Plaintiff awarded costs in amount of $269,250. Plain- tiff was clearly successful at trial. Hourly rates of plaintiff 's counsel was reasonable, as he was senior member practic- ing at litigation boutique and charging rate commensurate with experience. Damages be- ing sought were substantial, and issues were very important to parties particularly plain- tiff who had not secured other employment despite his best ef- forts. Employer wanted to play hardball with plaintiff, denying entitlement to bonus for full year that he had worked prior to year in which he was terminat- ed, despite acknowledging his professional and diligent work. Evidence was clear that all managers received substantial bonuses, making up significant component of income, except for plaintiff and one other man- ager who was also terminated. Plaintiff obtained award that was more than twice amount of employer's offer to settle. Case was not complex, except for is- sue of discretionary bonus that was based on number of factors and varied greatly in quantum over years of employment. Bain v. UBS Securities Can- ada Inc. (2017), 2017 Carswel- lOnt 3583, 2017 ONSC 1472, Darla A. Wilson J. (Ont. S.C.J.); additional reasons (2016), 2016 CarswellOnt 19811, 2016 ONSC 5362, D.A. Wilson J. (Ont. S.C.J.). Municipal Law DEVELOPMENT CONTROL Development agreements and conditions Developer granted access to property for purposes of remediation, repair and maintenance Applicant developer was devel- oping residential subdivision on lands ("Property") in city and development was proceed- ing in two phases. Developer brought application for ac- cess to Phase 2 lands through Campania Court for purposes of remediating, servicing and repairing and maintaining property which were required before it can enter into sub- division agreement with city and complete development of residential subdivision. Ap- plication granted. Pursuant to Development Agreement made between parties, developer was entitled to order allowing it to have access to Phase 2 lands through Campania Court for purposes of moving equipment to and from Phase 2 lands to be used to complete remediation of Phase 2 lands, and for servic- ing, maintenance and repair of Phase 2 lands, but not hauling of waste materials from Phase 2 lands for disposal off-site. Substance of relief claimed by developer in relation to s. 4 of Development Agreement was to restrain city from interfering with developer's contractual right to import equipment to and from Phase 2 lands on vehi- cles not being able to maneuver safely through Phase 1 lands. City agreed in s. 13 of Devel- opment Agreement to perform all further acts as may be nec- essary to give effect to terms and conditions of Develop- ment Agreement. This would include removing barriers such as chain-link fence. Equipment that developer sought to move onto Phase 2 lands was heav y equipment including track ex- cavator, backhoes, tractor trail- er dump trucks and/or triaxle dump trucks that was needed for remediation, servicing and repair work to be done on site. Equipment needed for servic- ing was hydro–vac truck which was large and heav y vehicle that, according to evidence, cannot access manholes other than using Campania Court. This was type of equipment that was addressed by s. 4 of Development Agreement. City was obliged under s. 4 of De- velopment Agreement to allow developer to move equipment to be used to remediate, service and maintain Phase 2 lands via Campania Court (on vehicles not being able to maneuver safely through Phase 1 lands) to and from Phase 2 lands. 1668135 Ontario Inc. v. Vaughan (City) (2017), 2017 CarswellOnt 5758, 2017 ONSC 2490, P.J. Cavanagh J. (Ont. S.C.J.). MUNICIPAL OFFICERS AND EMPLOYEES Miscellaneous Order to Remedy valid as containing sufficient particularity Chief Building Official. Respon- dent property owner purchased building over 100 years old in 2003 with plan of renovating it into combination of commercial and residential apartments. Plan never progressed and building has sat vacant from at least date it was purchased by respondent. Since that time, condition of building had deteriorated. On December 3, 2015, Chief Building Official ("CBO") issued Order to Remedy Unsafe Building. Respondent did not comply with orders or com- plete any additional remedial work or appeal any of orders. Re- spondent brought application to have Order to Remedy declared invalid, and to obtain interim in- junctive relief, as well as declara- tion that building was not unsafe. Application judge determined that Order to Remedy was null, void and inoperative. Applica- tion judge found it did not comply with Building Code Act because it was only served on owner and because it lacked specificity. Mu- nicipality and CBO appealed; re- spondent cross-appealed. Appeal allowed; cross–appeal dismissed. Application judge erroneously declared that Order to Remedy was null based on allegedly defec- tive service. It was within CBO's discretion as to whether respon- dent's property manager and lo- cal supervisory agent should also have been served with Order to Remedy. Section 15.9(4) of Act stipulates that Order to Remedy Unsafe Building should set out reasons why building is unsafe and remedial steps necessary to render building safe. In present case, Order to Remedy complied with s. 15.9(4) of Act in that it con- tained sufficient particularity to enable respondent to know case it had to meet and deficiencies that had to be remedied. In particular, Order to Remedy specified areas and items in building that com- prised alleged serious, unsafe con- ditions requiring remediation. Moreover, when Order to Rem- edy was viewed in context of long history between parties, lengthy correspondence and detailed en- gineering reports that parties ex- changed, there could be no doubt that respondent knew case it had to meet and repairs that were necessary to stabilize building. Respondent completed some but not all of necessary repairs. Re- spondent's failure to repairs was not due to respondent's lack of un- derstanding of what was required, but because of admitted lack of funds to complete repairs. There was no basis to invalidate Order to Remedy. Issues of whether inter- im injunction should be granted, and whether building was unsafe, was remitted for hearing before another application judge. Sutherland Lofts Inc. v. Peck (2017), 2017 CarswellOnt 6596, 2017 ONCA 368, K.M Weiler J.A., G. Pardu J.A., and L.B. Rob- erts J.A. (Ont. C.A.).

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