Law Times

Law Times • November 12, 2012 testimony and documentation showed great deal of disorgani- zation and confusion, inatten- tion to obligations to both court and client, and negligence on part of lawyer. However, docu- mentation did not support any inference that conduct was de- liberate or intentional. R. v. Watkins (June 26, 2012, Ont. C.J., McKay J.) 218 A.C.W.S. (3d) 74 (6 pp.). Employment Defendant and predecessor employed plaintiff for 33 years. Plaintiff was service manager for 18 years. Plaintiff, aged 55 at time of termination of em- ployment. Plaintiff was laid off. Plaintiff brought action for wrongful dismissal. Defendant called plaintiff back to work stating it acted under mistaken belief defendant could lay off plaintiff. Defendant apologized. Plaintiff did not return to work and continued action. Defen- dant did not dispute plaintiff was constructively dismissed when plaintiff was laid off. De- fendant argued plaintiff was not entitled to damages because plaintiff failed to mitigate dam- ages. Action was dismissed. Amount of damages in lieu of notice would be equivalent to 16 months' compensation. De- fendant established that rea- sonable person would have ac- cepted opportunity to return to work. Plaintiff failed to take rea- sonable steps to mitigate dam- ages with result that damaged in lieu of notice would be nil. Ac- cepting opportunity to return to work would not have obliged plaintiff to work in atmosphere of hostility, embarrassment of humiliation. Plaintiff did not fail to diligently search for suit- able employment with another employer. Plaintiff did not es- tablish compensable mental distress. Chevalier v. Active Tire & Auto Centre Inc. (July 24, 2012, Ont. S.C.J., Lococo J., File No. 50737/08) 218 A.C.W.S. (3d) 99 (18 pp.). WRONGFUL DISMISSAL Reasonable person would have accepted opportunity to return to work Insurance AUTOMOBILE INSURANCE Plaintiff had not obtained Motion by defendant insured to strike out certain parts of plaintiff insurer' assignment of cause of action from other driver on basis plaintiff lacked status and pleading had no reason- able chance of success. Defen- dant was involved in collision and claimed property damage. Plaintiff paid defendant $5,119 and retained his motorcycle as salvage. Plaintiff paid $105,300 to motorcyclist defendant col- lided with for bodily injury damages. Plaintiff now sought reimbursement for both pay- ments from defendant on basis defendant breached insurance contract. Plaintiff had not ob- s pleadings tained assignment of cause of action from other driver, who had not even commenced a claim against defendant. De- fendant argued plaintiff had not satisfied preconditions under s. 258 of Insurance Act (Ont.). Plaintiff argued it acquired sta- tus from Ontario Automobile Policy. Motion allowed. Section 3.4 of Policy made it clear some payment required by law was necessary before action under contract could be maintained. This reflected language of s. 258. In considering Act and juris- prudence, for insurer to be suc- cessful in breach of contract ac- tion, there had to be judgment against insured, or express non- waiver or reimbursement agree- ment between insured and in- surer concerning amounts paid to third party or assignment of cause of action from third party. As none of these preconditions were in place when plaintiff set- tled with third party, portions of claim seeking reimbursement of funds paid to other driver struck. Claim for funds paid to defendant to proceed to trial. State Farm Mutual Automobile Insurance v. Mawere (June 5, 2012, Ont. S.C.J., McLean J., File No. 11-51195) 218 A.C.W.S. (3d) 189 (11 pp.). Application by defendants, the landlord and its agent, for sum- mary judgment. Tenant conced- ed it failed to give written notice of intent to renew on terms detailed in lease but claimed landlord waived requirement by continuing to negotiate terms of renewal aſter intended no- tice date. Parties entered lease for ten years beginning June 1, 1998. Lease provided option to renew for two, five-year terms with written notice by May 31, 2007. Tenant was in good stand- ing, so parties would have ne- gotiated market rent payable. In 2005, tenant wanted to expand so spoke to landlord' Landlord entitled to pursue own interests in negotiations Landlord and Tenant RENEWAL OF LEASE request an inducement allow- ance, but request was denied. Parties were negotiating terms of renewal but remained con- siderably far apart. May 31, 2007 deadline came and went. In July 2007, agent wrote to tenant to state that landlord was termi- nating negotiations and pursu- ing other options for premises. In August 2007, agent inquired about tenant' s agent to it would accept and advised he would recommend proposal to landlord. However, landlord obtained appraisal and learned market rent was significantly higher than amount proposed by tenant. Landlord did not approve tenant' s interest and terms asked for vacant possession on or before May 31, 2008. Tenant claimed landlord' mination breached agreement as tenant had made it clear nu- merous times that it wanted to renew. Application allowed and s sudden ter- CASELAW action dismissed. In July 2007, landlord advised tenant it was terminating negotiations and pursuing other options. Parties had further discussions but they did not rise to level of expres- sions of interest by landlord. As tenant did not provide written notice by deadline, later nego- tiations fell outside restrictions of lease. Landlord was entitled to pursue own interests in nego- tiations and did not owe duty of good faith. Agent owed no duty to tenant. Rinaldo Hair Stylist Ltd. v. bcIMC Realty Corp. (May 29, 2012, Ont. S.C.J., Tausendfreund J., File No. 09-45593) 218 A.C.W.S. (3d) 192 (13 pp.). TAX COURT OF CANADA Social Welfare Appeal by employer from reas- sessment by Minister regard- ing Canada Pension Plan re- mittances. Employer was beer manufacturer who regularly provided employees with tick- ets entitling them to free cases of beer from manufacturing premises. Minister reassessed employer on basis that free beer was taxable benefit to employees such that its retail value had to be included for purposes of em- ployer' CANADA PENSION PLAN It was employees who primarily benefited from distribution of beer tickets remittances. Appeal dismissed. Value of beer would be subject to employee contribution and employer remittance if it was taxable benefit under s. 6(1)(a) of Income Tax Act (Can.). To fall into common law excep- tion, free beer must have been provided primarily for benefit of employer and any personal enjoyment by employee must have been merely incidental to employer' s Canada Pension Plan Employer undoubtedly derived some benefit from both quality control and marketing perspec- tive from its staff beer policy encouraging employees to re- port any problems with qual- ity and to share free beer with non-employees. Employees had no legal obligation to cash in ticket, sample product, share it with others or report any quality control problems, and employer received few quality reports and did not even monitor employ- ees' use of tickets. Employer did not rebut Minister' s business purposes. s proposal and tion that it was employees who primarily benefited from distri- bution of beer tickets, and em- ployer who received incidental benefit. It was established law that employee benefits should be valued at fair market value, which in this case was retail value of beer rather than cost to employer of manufacturing it. Steam Whistle Brewing Inc. v. M.N.R. (June 26, 2012, T.C.C., Pizzitelli J., File No. 2011- 4037(CPP); 2011-4039(EI)) 218 A.C.W.S. (3d) 216 (15 pp.). s assump- www.lawtimesnews.com Appeal by taxpayer from reas- sessment by Minister under Income Tax Act (Can.), for 2009 taxation year. Taxpayer lived in Whitby Ontario and commuted to work in down- town Toronto each day by tak- ing train. Taxpayer purchased tickets which were valid for ten rides for $64.25 to $66.75. Tax- payer claimed those amounts under public transit tax credit as provided in s. 118.02(2) of Act. Appeal dismissed. Tickets that were purchased by taxpayer were paper tickets, not an "eligi- ble electronic payment card" or an "eligible public transit pass" as required by Act. By buying tickets each week, amounts claimed did not qualify for pub- lic transit tax credit. Taino v. Canada (July 25, 2012, T.C.C., Webb J., File No. 2011- 3106(IT)I) 218 A.C.W.S. (3d) 228 (6 pp.). amounts claimed did not qualify for public transit tax credit By buying tickets each week, INCOME TAX ONTARIO CRIMINAL CASES Charter of Rights Accused charged with impaired driving and "over 80". Accused applied for stay of proceedings based on breaches of ss. 8, 9, 10(a), and (b) Charter rights. Police found accused slumped over in driver' Fact that accused resided outside province not reasonable ground for detention ARBITRARY DETENTION OR IMPRISONMENT PAGE 15 proceedings granted. Accused was detained in custody on grounds that he would not at- tend court for sole reason that he lived in N.W.T. Fact that ac- cused resided in N.W.T., with- out more, was not reasonable ground for detention pursuant to s. 498(1.1) of Criminal Code. Police knew that Code envi- sioned release of non-residents and that accused had familial ties to Ontario, did not have criminal record, and was polite, co-operative, and respectful. Accused' cause hearing was arbitrary and in breach of s. 9 of Charter. But for arbitrary detention, accused would not have had to undergo serious infringement of privacy and personal dignity inherent in strip search. Strip search at jail subsequent to accused being arbitrarily detained violated s. 8 of Charter. As accused was nev- er told reason for his continued detention or given his rights to counsel or opportunity to con- sult with counsel thereaſter, his s. 10(a) and (b) Charter rights were violated. Cumulative effect of four Charter breaches called for stay of proceedings and outweighed society' s detention for show having case heard on its merits. R. v. Manuel (June 15, 2012, Ont. C.J., LeRoy J.) 102 W.C.B. (2d) 378 (25 pp.). Appeal hicle, exhibiting signs of im- pairment. Officers learned that accused was from Northwest Territories and was visiting fam- ily in Ontario. Officers decided that accused needed to be held for show cause hearing in order for court to decide whether or not to release him, given con- cern that he would not return to province to face charges. Ac- cused testified that he and his wife were in Ontario looking for house, as he was planning to work for one more year in north and then retire in Ontario. Ac- cused was strip searched at jail aſter appearing before court by video. Accused argued that police did not have reason- able grounds to believe that he would fail to attend court based solely on his address given that he identified himself verbally to police, gave his address, pro- vided his driver' s seat of his ve- police had some knowledge of his having relatives locally. Ac- cused argued that, because he was arbitrarily detained, strip- search he underwent at jail fol- lowing his detention was s. 8 Charter violation. Accused ar- gued that police failed to advise him that he was being detained for show cause hearing and subsequently failed to provide him with his rights to counsel. Application allowed, stay of s license, and Accused appealed decision of summary conviction appeal judge which dismissed his ap- peal from conviction for sexual interference. Accused was con- victed was kissing and licking his 11 year-old daughter' reasonably have affected verdict FRESH EVIDENCE Fresh evidence could not Trial judge acknowledged that complainant had significant credibility problems, but was satisfied beyond reasonable doubt because of corroborat- ing evidence. When complain- ant was 16 years old she swore affidavit recanting her allega- tions against her father, blam- ing her mother for pressuring her into making accusation. At age 20, for purpose of this ap- peal, complainant resiled from recantation, blaming her father and step brother, and made further allegations against her father regarding illegal drug ac- tivity. Appeal dismissed. Fresh evidence was not admitted, as it would not have affected result of trial. Trial judge was fully aware of complainant' s breast. honesty. Trial judge convicted on count for which there was corroboration of complainant' s history of dis- account, including contempo- raneous observation of com- plainant' s event by her mother and anoth- er third party witness, and DNA evidence. In circumstances, fresh evidence could not rea- sonably have affected verdict. R. v. M. (P.E.) (Apr. 20, 2012, Ont. C.A., Feldman, Gillese and Hoy JJ.A., File No. C49670) 102 W.C.B. (2d) 444 (6 pp.). s demeanour following LT s interest in

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