Law Times

Law Times • OcTOber 30, 2017 Page 15 www.lawtimesnews.com CASELAW from employment. Employee brought action seeking dam- ages for wrongful dismissal. On motion for summary judgment it was determined that employ- er failed to establish cause for termination based on alleged misrepresentation of employee's credentials at time of hiring. Mini-trial was directed to de- termine whether circumstances surrounding employee's failure to complete training consti- tuted cause. Action allowed. Trial judge found that employer failed to prove just cause for ter- mination. Employee was award- ed judgment for amount owing under contract less advance and payments received. Trial judge held that employee had not es- tablished claim for overtime pay because hours of work were averaged. Employee appealed quantum of damages award. Appeal dismissed. Trial judge's finding that parties agreed that hours would be averaged was supported by evidence and reasonable inferences from evidence. Employer admitted that it had not complied with s. 169 of Canada Labour Code ("Code") in respect to averaging hours. There was no prejudice to employee for employer's fail- ure to give notice of averaging in accordance with Code. Em- ployee knew about averaging, both in its general terms and its practical application. Em- ployee suffered no damage as result of failure to receive some additional notice of something of which he was already aware If employee was to be awarded overtime he sought, in addition to compensation he was paid for work he actually did, he would realize enormous windfall at expense of his former employer. This would not be because em- ployee earned it, but because of his employer's technical non– compliance with Code. Rego v. Northern Air So- lutions Inc. (2017), 2017 Car- swellOnt 15485, 2017 ONSC 4248, Valin J., D.L. Corbett J., and Abrams J. (Ont. Div. Ct.); affirmed (2016), 2016 Carswel- lOnt 14885, 2016 ONSC 5488, W.D. Newton J. (Ont. S.C.J.). WORKERS' COMPENSATION LEGISLATION Judicial review Judicial review denied where worker raising issues dealt with in earlier proceedings In 2007, Workplace Safety and Insurance Appeals Tribunal (WSIAT) denied worker's claim for disability award, finding lack of evidence that either of worker's claimed carpal tunnel syndrome (CTS) or psychotrau- matic disability were work-relat- ed. WSIAT dismissed worker's first and second requests for reconsideration. Worker's ap- plication for judicial review was dismissed by Divisional Court in 2010 on basis that it could not be said that WSIAT's deci- sion to deny benefit for CTS was unreasonable in light of ample evidence before it to support conclusion. Worker's request for extension of time to seek leave to appeal to Court of Appeal was dismissed by Court of Appeal. Appeal of that dismissal was dismissed on basis that there was no merit in worker's appeal. Worker's application for leave to appeal to Supreme Court of Canada was dismissed in 2013. WSIAT refused to assign worker's third request for recon- sideration for further review, finding worker's submissions in support of third reconsideration request to be re-argument of ap- peal. Worker brought applica- tion for judicial review. Appli- cation dismissed. Worker was again trying to reargue same issues dealt with in earlier pro- ceedings. Worker could show no basis upon which WSIAT's decision not to engage in third reconsideration could be said to be unreasonable. "New" in- formation worker sought to introduce was doctor's report simply reviewing medical evi- dence already before WSIAT when previous decisions were made. WSIAT found its prior decisions already addressed all issues raised in worker's third request for reconsideration and therefore exercised its discretion not to order further reconsider- ation. There was nothing unrea- sonable in WSIAT's exercise of its discretion in that regard and, so, no basis for interfering with WSIAT's decision. Scaduto v. Ontario (Work- place Safety and Insurance Appeals Tribunal) (2017), 2017 CarswellOnt 5749, 2017 ONSC 2345, Nordheimer J., Corbett J., and DiTomaso J. (Ont. Div. Ct.). Municipal Law MUNICIPAL FEES, LEVIES, AND CHARGES Miscellaneous Municipality not violating statute by imposing fee based on use of wastewater processing services Plaintiff commenced action against respondent town alleg- ing that charging for wastewa- ter processing services based on water consumption, rather than amount of water that exits as wastewater, violated s. 394(1) (c) of the Municipal Act, 2001 (Act), which prohibits mu- nicipality from imposing fee or charge based on use of ser- vice, other than service pro- vided by municipality. Plaintiff also pleaded that respondent had been unjustly enriched by charging on basis that it had and was negligent in failing to implement system where users could apply for rebate for sewer capacity they did not use. In response, respondent brought motion for summary judgment seeking dismissal of plaintiff 's claim against on it on grounds that respondent benefitted from statutory immunity under s. 450 of Act. Respondent's mo- tion was granted and plaintiff 's action was dismissed as motion judge held he could make fair and just determination under R. 20 of Rules of Civil Proce- dure because facts were not in dispute and there were no issues on credibility. Motion judge concluded respondent had not violated s. 394(1)(c) of Act and had made policy-based decision that was immune from civil ac- tion. Plaintiff appealed. Appeal dismissed. Motion judge was correct in concluding respon- dent had not violated s. 394(1)(c) of Act; respondent imposed fee or charge based on use of service that being wastewater process- ing services that it provided to all its rate payers. Nylene Canada Inc. v. Arn- prior (Town) (2017), 2017 Car- swellOnt 14439, 2017 ONCA 726, Alexandra Hoy A.C.J.O., J. MacFarland J.A., and Grant Hu- scroft J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 1101, 2017 ONSC 795, Robert Smith J. (Ont. S.C.J.). MUNICIPAL OFFICERS AND EMPLOYEES Miscellaneous Court not having benefit of considering fulsome submissions of parties Appellant AE appealed decision of Chief Building Officer to re- voke building permit issued for construction on property. Pur- suant to provisions of Building Code, AE appealed revocation order to Superior Court of Jus- tice but order was upheld. AE appealed decision. Divisional Court upheld decision and re- mitted matter back to Superior Court of Justice for purpose of setting remediation time- table. AE sought to commence judicial review application of decision of Ontario Municipal Board. Parties appeared before court to set date for hearing. Re- spondents sought dismissal of AE's judicial review application on procedural grounds. Appli- cation allowed in part. March 3, 2017 proceedings, on issue of judicial review application only, was struck. Parties shall contact trial coordinator for Superior Court of Justice, City of Bramp- ton and set date for new hearing on issue of setting a date for ju- dicial review hearing before an- other judge of Superior Court of Justice. During hearing, court thought it prudent to interrupt proceedings. Therefore, par- ties did not have opportunity to complete submissions and court did not have benefit of consider- ing fulsome submissions of par- ties. Under these circumstances, it was in interest of justice and proper administration of jus- tice, for March 3, 2017 proceed- ings, relating only to issue of setting date for judicial review application, to be reopened for consideration by another Judge of Superior Court of Justice. Elbasiouni v. Brampton (City) (2017), 2017 CarswellOnt 4875, 2017 ONSC 2087, Barnes J. (Ont. S.C.J.). Public Law CROWN Contractual principles regarding Crown Irregularities in procurement process for government contract not resulting in unfairness In 1997, provincial government encouraged community care access centers to sub-contract staff who provided community health care services. Care ac- cess centre O sent out requests for proposals to companies who would provide services that O had previously provided, and would also agree to hire O's former employees. In 1999, plaintiff K Inc. was selected to provide therapy services to adults in community. In 2000, K Inc. and O signed contract called "sale of business" con- tract. Important feature of this contract was that K Inc. would not only hire O's therapists, but would also maintain collective bargaining unit. K Inc. inher- ited accumulated severance liabilities of O's employees. It remained unclear what would happen to accumulated sever- ance costs if "successor employ- er" K Inc. was successful bidder in 2003 and signed new con- tract. In fall of 2003, O request- ed proposals with view to final- izing contracts in March 2004. K Inc. brought action seeking damages for loss of profit and loss of opportunity arising out of 2003 Request for Proposal ("RFP") issued by O. Action dis- missed. Issue of liability for sev- erance costs could not, and did not, motivate O to fix RFP to disfavour K Inc.. There was no evidence that ability to provide basket of services was criterion in this RFP. Therapies RFP did not use term "basket of servic- es" anywhere in its documenta- tion. There was evidence that such criterion was not factor in evaluation of bids. Basket of services paradigm was goal of O, but evidence demonstrated that this goal did not cause O to seek to exclude K Inc. from new contract. There was no undis- closed criterion for multi–ser- vice provider in therapies RFP. K Inc. asserted that O unfairly customized 2003 therapies RFP by inserting experience equiva- lent provision that had effect of favouring large multi–service providers and disfavouring smaller service providers. In final analysis, K Inc. had obliga- tion to demonstrate on balance of probabilities that procure- ment process was unfair and that they were disadvantaged. K Inc. failed to do so. Although there were some irregularities in procurement process, there was nothing unfair about pro- cess. Kaymar Rehabilitation Inc. v. Champlain Commu- nity Care Access Center (2017), 2017 CarswellOnt 4131, 2017 ONSC 1843, Julianne Parfett J. (Ont. S.C.J.). Real Property INTERESTS IN REAL PROPERTY Restrictive covenants Positive covenants rule applied even in presence of express intention to contrary Appellants were husband and wife, who owned property that had run in husband's fam- ily since 1911. Husband and wife lived at property since 1997, tak- ing ownership from husband's father in 2010 after his death. Property was part of small com- munity of homes, in which origi- nal owners signed trust deed. Deed allowed appointed trustees to hold common property in area as private property, for benefit of covenantors. Subsequent owners such as husband and wife were considered to be part of agree- ment. In 2008, husband's father disputed requirement to pay $500 annual fee, and occasional related fees. Respondent trustees brought action in Small Claims Court against father, husband and wife for payment of fees for 2008-09. Action was granted, with court finding that property owner's use of features was not relevant factor. Father was found liable for amount of $4,052.11, with husband and wife found to be acting on his behalf. Ap- peal by husband and wife, act- ing as trustees of father's estate, was dismissed. Divisional Court ruled in appeal that husband and wife could not raise argument of positive covenants for first time, at appeal stage. Husband and wife did not pay fees for 2010-13 period, after taking ownership of property. Trustees brought new action against husband and wife. Husband and wife argued that positive covenants did not run with land. Small Claims Court judge accepted argument, and found that previous action did not preclude husband and wife from making argument in this action. Trustees appealed to Di- visional Court successfully. Di- visional Court found that there was exception to positive cov- enants, in trust deed. Husband and wife claimed that Divisional Court did not follow binding precedent. Husband and wife appealed from Divisional Court decision. Appeal allowed. Posi- tive covenants rule applied, even in presence of express intention to contrary. Majority decision in case followed by appeal judge set out this rule. Appeal judge was not entitled to set aside good law and adopt minority decision. There was no Charter of Rights issue or outside development that would have made minority decision applicable. Benefit and burden principle advanced by appeal judge had not been ad- opted as provincial law. Black v. Owen (2017), 2017 CarswellOnt 7390, 2017 ONCA 397, K. Feldman J.A., E.A. Cronk J.A., and B.W. Miller J.A. (Ont. C.A.); reversed (2016), 2016 Car- swellOnt 1688, 2016 ONSC 40, J. Wilson J. (Ont. Div. Ct.).

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