Law Times

Law Times • OcTOber 16, 2017 Page 15 www.lawtimesnews.com CASELAW DIVISION OF FAMILY PROPERTY Determination of ownership of property Equalization of net family properties not unconscionable Parties were married for 21 years and had one adult child. Par- ties kept finances separate dur- ing marriage. Parties purchased property during marriage that was sold so they could pur- chase bigger home, but husband kept proceeds of sale and big- ger home was never purchased. Husband claimed he invested money in stock market and lost it. Wife claimed that husband's father held property in Poland in trust for husband, and that value of property on date of separation must be included in husband's net family property. Wife brought motion for relief, including equalization of net family property. Motion grant- ed. Husband provided no docu- mentation to support explana- tion that he lost money in stock market. Husband had interest in property in Poland on date of separation and value of that property must be included in net family property for equalization purposes. Withdrawal of funds from husband's RRSP and retire- ment assets and numerous cash withdrawals from bank account were consistent with his invest- ment in Polish property. Based on evidence, husband purchased property in father's name, and he financed construction of house on property. Husband was sole beneficial owner of Polish prop- erty on date of separation, and he was not entitled to exclusion for value of Polish property. Equal- ization of net family properties would not be unconscionable. Husband owed wife equaliza- tion payment of $141,417.44. As legal title of Polish property was in name of husband's father, full amount of equalization payment was enforceable against both husband and father. Hamernik v. Hamernik (2017), 2017 CarswellOnt 4043, 2017 ONSC 1261, Pamela L. Hebner J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Termination and dismissal Open to parties to agree how and when any bonus was declared, earned, accrued and would be payable Lawyer entered into employ- ment contract with company. Employment contract contained termination clause and bonus plan clause (limitation clause) that provided that bonus did not accrue and was only earned and payable on pay-out date. Compa- ny's fiscal year ran from July 1 to June 30 and bonus pay-out date for 2010 was September 17. Com- pany terminated lawyer without cause on April 21 and paid him two weeks' notice in satisfaction of lawyer's statutory entitlement under Employment Standards Act. In absence of signed release, company refused to pay lawyer additional six weeks' base sal- ary referenced in subparagraph (ii) of contract. Lawyer brought action for damages. Trial judge construed employment contract and found limitation clause to be unambiguous. Trial judge found that clause was to be read in its entirety, and it was clear that if bonus pay-out date fell within notice period, company would honour its requirements. Law- yer appealed. Appeal dismissed. There was no basis to interfere with trial judge's interpretation. Parties did not purport to con- tract out of or otherwise waive company's statutory entitlements but rather agreed, in clear and unambiguous language, that lawyer would be paid his entitle- ments under Act. Contract was also clear and unambiguous that lawyer's statutory entitlements included those bonus payments that would have been earned and paid out within lawyer's statutory notice period under Act. It was open to parties to agree how and when any bonus was declared, earned, accrued and would be payable. There was no basis to interfere with trial judge's find- ing that no bonus entitlement had accrued by or on date of ter- mination, nor did it accrue dur- ing notice period under terms of contract or provisions of Act. It was open to trial judge to dismiss lawyer's arguments based on un- conscionability and public policy. Kielb v. National Money Mart Co. (2017), 2017 Carswel- lOnt 6561, 2017 ONCA 356, Paul Rouleau J.A., S.E. Pepall J.A., and L.B. Roberts J.A. (Ont. C.A.); af- firmed (2015), 2015 CarswellOnt 9377, 2015 ONSC 3790, S.A.Q. Akhtar J. (Ont. S.C.J.). In calling for unnecessary repair employee breached trust and terminated for cause Employee, 43 years old, worked as automotive technician at dealership owned by employer for about nine years when his employment was terminated. Employee was experienced auto- motive technician and was high earner, but he often rushed work and had been reprimanded on several occasions for poor per- formance. Employer alleged that employee was terminated for cause for allegedly falsely report- ing that brake pads of car he in- spected had significant wear and had to be replaced. Employee admitted that his measurement of brake pads was inaccurate, but denied he intentionally un- derstated their size or need for replacement. Employee brought action seeking damages for wrongful dismissal, termination pay and severance pay under Em- ployment Standards Act, 2000. Action dismissed. Employee was dismissed for just cause in that he intentionally misrepresented that customer's brakes needed to be replaced when such work was not required. Employee's submission that he might have used tool to measure brake pads and that he might have mistak- enly taken all eight measure- ments was speculative recreation of events. It was improbable that employee would have made same mistake eight times, and in light of his experience, it would have been readily apparent, without measuring, that brake pads did not need to be replaced. If employee's measurements had been result of carelessness from rushing to do work he would have provided that explanation when offered opportunity to ex- plain his actions at suspension and termination meetings when he was directly confronted. Em- ployee's actions were driven by greed, as he wanted to maximize his income and make up for two unprofitable recall services that day that took longer to complete than time for which he was paid. Employee intentionally mispre- sented that brake pads needed to be replaced, and that struck at heart of employment relation- ship. In calling for unnecessary repair employee breached trust that employer placed in his judg- ment, and employer's customer goodwill would be damaged by employee who called for unnec- essary repairs. Employee's dis- missal was justified. Cummings v. Quantum Au- tomotive Group Inc. (2017), 2017 CarswellOnt 5122, 2017 ONSC 1785, M.D. Faieta J. (Ont. S.C.J.). Obligation to mitigate not obliging employee to accept offer at salary 20 percent less than former salary Employee was terminated from his employment after being em- ployed for 19 years and 3 months. Employee was employer's director of purchasing with annual salary of $81,962.49, matching five per cent contribution to registered pension plan and participation in employer's standard extended health benefits plan. Employee was offered eight weeks' written notice and 12 weeks' severance. Employee also received offer of supervisor service position at sal- ary of $60,000, which he did not accept. Employee's motion for summary judgment for damages for wrongful dismissal was grant- ed. Employee did not hold classic managerial position but his posi- tion was senior and specialized as he was employer's only director of purchasing in Ontario. Motion judge concluded new offer of em- ployment was not consistent with jurisprudence because it was not offer to work through notice peri- od; instead it was simply offer for new full time position at much less compensation. Employer al- leged employee's obligation to mitigate obliged him to accept employer's offer of employment at salary roughly 20 percent less than his former salary. Employer appealed. Appeal dismissed. Mo- tion judge did not err in his con- clusion regarding new offer. Mo- tion judge did not err in finding reasonable person in employee's position was not obliged to accept term risking waiver of wrongful dismissal claim. Fillmore v. Hercules SLR Inc. (2017), 2017 CarswellOnt 4866, 2017 ONCA 280, R.G. Juriansz J.A., P. Lauwers J.A., and C.W. Hourigan J.A. (Ont. C.A.); af- firmed (2016), 2016 CarswellOnt 11560, 2016 ONSC 4686, Dia- mond J. (Ont. S.C.J.). Municipal Law DEVELOPMENT CONTROL Development approval Land Commissioner not required to adopt court's interpretation Undeveloped property pur- chased by respondent owners was located in subdivision area, with neighbouring proper- ties already having homes built on them. Appellant local con- servation authority made Reg. 172/06, approved by Minister of Natural Resources and Forestry and Conservation pursuant to s. 28(5) of Conservation Author- ities Act ("CAA"), which requires Minister to be satisfied that "de- velopment should be prohibited or regulated or should require the permission of the author- ity". Property was designated as part of environmentally pro- tected area due to existence of small drainage ditch crossing it. Owners discovered that part of property where they wished to build home was on fringe of potential f loodplain regulated by appellant local conservation authority. Owners' application for approval of their proposed development was denied by con- servation authority. Owners ap- pealed to Deputy Mining and Lands Commissioner ("commis- sioner"). When commissioner dismissed appeal, owners suc- cessfully appealed to Divisional Court ("court"). Court held that conservation authority and commissioner were entitled to consider safety issues, but safety could not be elevated to stand- alone head of jurisdiction grant- ed for regulation of f lood con- trol. Court found that safety was used as pretext for applying poli- cy preference for blanket ban on development within f loodplain without regard to particular characteristics of land or of pro- posed development. Conserva- tion authority appealed. Appeal allowed. Commissioner had to determine whether owners were entitled to build home on their land which was partly on f lood- plain, which was "hazardous land" within meaning of CAA. Commissioner's interpretation of Reg. 172/06 was reasonable. Court's interpretation that s. 3 of Reg. 172/06 was condition prec- edent to operation of prohibi- tion in s. 2, was counterintuitive, given structure of regulation. Moreover, it appeared to over- look regulation that specifically requires conservation authority regulation to prohibit develop- ment. This was not interpreta- tion that regulation could rea- sonably bear. However, even as- suming that it was within range of interpretations that commis- sioner could have adopted, bot- tom line was that commissioner was not required to adopt court's interpretation, and chose not to do so. Commissioner's decision was reinstated. Gilmor v. Nottawasaga Val- ley Conservation Authority (2017), 2017 CarswellOnt 7618, 2017 ONCA 414, Doherty J.A., David Brown J.A., and Grant Huscroft J.A. (Ont. C.A.); re- versed (2015), 2015 CarswellOnt 13851, 2015 ONSC 5327, E.R. Kruzick J., P.M. Perell J., and Sean F. Dunphy J. (Ont. Div. Ct.). Professions and Occupations BARRISTERS AND SOLICITORS Organization and regulation of profession Plaintiff 's termination not amounting to constructive notice as she was partner in LLP Plaintiff was partner in law firm (LLP) that dissolved. Lawyers and staff of LLP had relocated to other firm or reconstituted version of firm by three mem- bers under its original name. Plaintiff was not offered compa- rable position or renumeration at either firm or offered sever- ance package. At trial, plaintiff submitted she was employee and in circumstances, termina- tion amounted to constructive notice, without notice and en- titled to damages. In dismiss- ing her claim, trial judge found she was partner for several and various reasons. Plaintiff con- ducted herself as partner, was treated as partner and held out as one to clients, Law Society and Canada Revenue Agency; she had full access to business and financial affairs of LLP; her salary was regular draw but her bonus was dependant on prof- itability and enjoyed medical benefits package above that of associates. Plaintiff appealed. Appeal dismissed. Trial judge applied relevant legal principles to his findings of fact and con- cluded that partnership rela- tionship existed in context of factual matrix. Conclusion was of mixed fact and law and plain- tiff had not demonstrated any palpable and overriding error. Trial judge accepted evidence of two other firm members whose circumstances were sim- ilar and who testified that they conducted themselves as part- ners in LLP and were treated as such. Trial judge had not failed to apply test set out in Supreme Court of Canada's decision of McCormick as it did not estab- lish control and dependency as all-purpose test to determine whether person was partner or employee. Trial judge correctly concluded that one must ex- amine all surrounding circum- stances, substance of relation- ship, behaviour of parties and intention of parties, in order to determine whether partnership exists. Daniel v. Miller, Canfield, Paddock and Stone, LLP (2017), 2017 CarswellOnt 13755, 2017 ONCA 697, G.R. Strathy C.J.O., K. van Rensburg J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 14464, 2016 ONSC 5712, P.B. Hockin J. (Ont. S.C.J.).

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