Law Times

Page 6 December 10, 2012 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Is $1 sufficient punishment for malicious prosecution? I s $1 sufficient compensation for the malicious prosecution of a man whose employer wrongfully dismissed him and exposed him to ridicule by providing evidence that resulted in unfair criminal charges against him? It's a good question given the outrageous circumstances in Pate (Estate) v. Galway-Cavendish and Harvey (Townships), a matter that dates all the way back to 1999. On Nov. 19, Superior Court Justice Drew Gunsolus awarded John Gordon Pate's estate $1 along with $20,000 in costs for malicious prosecution. Pate, a former building inspector for the municipality, lost his job over alleged discrepancies in relation to building permit fees in 1999. The municipality later turned over evidence to police who, despite some reluctance, laid criminal charges against Pate. Several years back, the court acquitted him at trial amidst significant publicity of the case. Among the many problems in the case, the chief building official withheld exculpatory information that police said would have stopped them from laying charges. According to the Nov. 19 ruling, while the chief building official said he searched for the building permits at issue and found no records of them, there was evidence that it was "common knowledge" that the municipality had lost many files during a move of its office. "He did not go on to advise the police that many files and records had been lost during a move of the municipal office in question," wrote Gunsolus. Pate died in early 2011. In his ruling last month, Gunsolus awarded his estate the dollar for malicious prosecution. That sounds like a paltry amount, but it's worth noting he already awarded, following prodding by the Ontario Court of Appeal, $550,000 in punitive damages for wrongful dismissal among other financial penalties. In an ideal world, the court would loudly denounce such actions with a more substantive damages award. But the parties did agree to it, so it's hard to take issue with the court's decision. In the meantime, the case is a good reminder of why we hold the justice system to such high standards given the dangers posed by those who act maliciously in launching legal actions. — Glenn Kauth Dual spouses case a reminder to designate pension beneficiary A n important but perplexing decision recently came out of the Court of Appeal for Ontario interpreting the definition of spouse under s. 48 of Ontario's recently amended Pension Benefits Act. In Carrigan v. Carrigan Estate, Ronald Carrigan passed away leaving behind his current common law spouse, Jennifer Quinn, and his wife, Melodee Carrigan, who he had separated from approximately a decade ago but never divorced. Melodee had been living in the matrimonial home right up until her husband's death and he had been paying her living expenses since their separation. Melodee was also the executrix of his estate and she and their two children were named beneficiaries under Ronald's pension plan at the time of his death. The only issue was determining who was Ronald's spouse according to the act in order to decide who would receive his lump-sum pension benefit. The trial judge held that Quinn was his spouse for the purposes of receiving the pension benefit because she was in a spousal relationship with him at the time of death and he and Melodee, while still married, had separated. On appeal, Justice Russell Juriansz, with concurring reasons by Justice Gloria Epstein and a dissent from Justice Harry Law Times apart from their spouse at the LaForme, held that neither woman qualified under the Family time of death. Juriansz concluded that in a definition of spouse for the Law case where there's one married purposes of the Pension Benspouse (albeit separated from efits Act provisions. Accordthe member) and a common ingly, because Melodee was law spouse, neither person, by the named beneficiary, she was virtue of subsection 48(3), can entitled to receive the pension be a spouse for purposes of the along with the two children. act. Therefore, the designated The act defines spouse as beneficiary will get the benefit either of two persons who are because subsection 48(3) could married to each other or are Marta never apply to a common law not married to each other but Siemiarczuk spouse. In order to fit the defiare living together in a conjugal relationship continuously for a pe- nition of spouse, the common law couple riod of not less than three years. Clearly, can't have separated because the law dethe act allows a common law spouse liv- fines a common law spouse as someone ing with the plan member at the time of who is, not was, living with the member at death to receive the pension. But a dual the time of death. Therefore, if both married and common law spouses exist, given spouse situation clouds the issue. Subsection 48(1) of the act provides that subsection 3 can only apply to a marthat if the member dies, the spouse on the ried person, once you have a dual spouse date of death is entitled to receive a lump- situation and the married couple has sepasum payment equal to the commuted val- rated, subsections 1 and 2 of s. 48 have no ue of the deferred pension. This is where applicability at all and the benefit goes to the trouble begins as subsection 48(3) pro- the designated beneficiary. If we alter the facts of the case somevides that subsections 1 and 2 "do not apply where the member, former member or re- what and say that the member had one tired member and his or her spouse are liv- common law spouse he was living with ing separate and apart on the date of death." and a second common law spouse he had Finally, subsection 48(6) allows mem- recently separated from, the one he lives bers to designate a beneficiary if they didn't with would get the pension. Why should have a spouse or were living separate and this change if there exists a married but Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. 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Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent postconsumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation separated spouse, particularly if she also loses the pension by virtue of the separation? Or take another situation in which the plan member was married to spouse No. 1 when he became a member of the pension plan and designated her as the beneficiary. The member and spouse No. 1 later divorce. The member marries spouse No. 2 and they later separate but don't divorce. The member then enters into a common law relationship with spouse No. 3 and dies later on. On these facts, spouses No. 2 and 3 don't get the benefit simply because the plan member and his married spouse had separated at the time of death, which rendered subsections 1 and 2 inoperable to anyone. Instead, spouse No. 1, who the plan member may have had no relationship with in decades, gets the pension benefit. It's a seemingly odd result. It will be interesting to see if there's any legislative effort to clarify the law on this issue. I encourage lawyers to read this case as the ultimate point for our purposes at present is to tell our clients to always designate a beneficiary of their pension plans and to remain mindful of who that person is. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com www.lawtimesnews.com LT Masthead.indd 1 11/7/12 11:23 AM

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