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Employment

PUBLIC SERVICE

Board did not have jurisdiction to hear applicant’s grievance

Applicant grieved competition for Parole Officer position. Grievance alleged that employer violated s. 5 of Public Service Employment Act (Can.) (“PSEA”); Article 37 of applicant’s collective agreement (non-discrimination clause); and Employment Equity Act (Can.). By time grievance was adjudicated, applicant indicated he was only seeking declaration that employer violated non-discrimination clause of his collective agreement and Canadian Human Rights Act (“CHRA”), as well as damages for that violation. Employer objected to jurisdiction of Public Service Labour Relations Board to hear grievance. Board dismissed applicant’s grievance on grounds that it did not have jurisdiction to hear grievance, pursuant to s. 208(2) of Public Service Labour Relations Act (Can.) (“PSLRA”). Application for judicial review was dismissed. Board was correct to find that it did not have jurisdiction to hear applicant’s grievance. Section 208(2) of PSLRA clearly precluded presentation of grievance where another administrative procedure for redress was provided under another PSLRA of Parliament other than CHRA. Facts giving rise to applicant’s grievance related to staffing appointment. Section 8 of PSEA, which was in force at time of applicant’s grievance, granted exclusive authority over appointments to Public Service Commission. Section 21 of PSEA granted unsuccessful candidates right to appeal any appointment decision to commission. It was this process - appeal under s. 21 of PSEA that applicant should have pursued for redress in relation to employer’s appointment decision.

Brown v. Treasury Board (Correctional Service of Canada) (Oct. 20, 2011, F.C., Kelen J., File No. T-1851-09) 208 A.C.W.S. (3d) 323 (14 pp.).

Prisons

AGREEMENTS FOR TRANSFER TO PENITENTIARY

Objectives of international transfer of offenders scheme could not be achieved through transfer

Application by Canadian prison inmate, who was incarcerated in an American prison after he was convicted of conspiracy to distribute more than five kilograms of cocaine, for judicial review of a decision of Minister of Public Safety and Emergency Preparedness. Minister refused to approve applicant’s application under International Transfer of Offenders Act (Can.) to be transferred to Canada to serve remainder of his sentence. Reason was that objectives of international transfer of offenders scheme could not be effectively achieved through applicant’s transfer. Application dismissed. Minister properly exercised his discretion. Minister weighed purposes of Act, applicant’s positive and negative circumstances and relevant factors. One could reasonably conclude, based on information contained in record, that there was a factual basis for Minister’s decision and he was entitled to act as he did. Applicant was not denied procedural fairness. Court therefore deferred to Minister’s decision.

Newberry v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 3, 2011, F.C., Shore J., File No. T-1649-10) 97 W.C.B.
(2d) 470 (19 pp.).

Charter of Rights

RIGHT TO COUNSEL

Police failed to fulfil duty to provide reasonable opportunity for accused to consult counsel of choice

Application to exclude evidence. Motorist observed accused swerving into lanes without signaling, causing motorist to change lanes to avoid a collision. Motorist phoned police. Accused ignored officer’s police lights and siren for almost a kilometer while officer mouthed and signaled to him to pull over. Once stopped, officer observed extreme odour of alcohol emanating from vehicle and that accused’s eyes were red and bloodshot. Accused was arrested for impaired driving. At station, officer phoned lawyer of accused’s choice and left message. Officer then phoned duty counsel. Accused repeatedly and forcefully asked to speak to his own lawyer. Duty counsel phoned back and accused spoke to duty counsel. Another call was placed to accused’s lawyer of choice. Accused provided sample of his breath 10 minutes later. Application granted. Accused’s rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were not infringed. Officer had reasonable and probable grounds for arresting accused, based on extreme smell of alcohol in accused’s car when she opened door alone. Accused’s right to counsel of choice under Charter s. 10(b) was infringed. Police failed to fulfill their duty to provide reasonable opportunity for accused to consult counsel of his choice. Sarcastic and dismissive comments by officer undermined reasonable efforts. Accused’s right to instruct counsel was infringed when officer would not wait past approximately 10 minutes that had elapsed since second call to accused’s lawyer and in insisting that accused provide breath sample without providing reasonable explanation as to why he would not wait. To admit test results would bring administration of justice into disrepute.

R. v. Samatar (Oct. 7, 2011, Ont. S.C.J., Knazan J.) 97 W.C.B. (2d) 443 (17 pp.).

Assault

ASSAULTING PEACE OFFICER

Reasonable doubt that accused knew there was officer in police cruiser

Accused was charged with assaulting peace officer and two counts of obstructing peace officers in relation to his protest activities at G20. Accused had pleaded guilty to two counts of mischief over $5,000 that related to his willfully damaging two police cars while participating in those protests. It was alleged that accused used a wooden stick to both damage a police cruiser and assault by gesture officer stuck inside one of those vehicles during onslaught by a number of assailants. Surveillance cameras captured accused kicking in window of second police car. It was alleged accused willfully obstructed unnamed police officer in his or her duty to identify suspects by blocking cameras while protestors were seen to be randomly breaking windows of downtown commercial premises. Second count of obstruct police alleged that by participating with others in confining officer in first police cruiser while attacking it, accused obstructed him in execution of his duty. Assault peace officer and two obstruct police charges dismissed. Court was left with reasonable doubt that accused knew there was officer in police cruiser when he joined group that attacked it. Accused admitted to blocking cameras but it was not shown that any of cameras he interfered with were in service to police.

R. v. Cote
(Sep. 7, 2011, Ont. C.J., Feldman J.) 97 W.C.B. (2d) 433 (7 pp.).

Evidence

PRIOR JUDICIAL DECISION

Government entitled to rely on judgments as precedents but not tender them into evidence

Motion by Ontario government for ruling on admissibility of prior judgments from other provinces as evidence on jurisdictional motion. Ontario government enacted Tobacco Damages and Health Care Costs Recovery Act, 2009 (Ont.), permitting actions to be brought against tobacco companies for recovery of tobacco-related health care costs. Ontario government commenced action in Ontario against 14 tobacco companies for recovery of $50 billion in tobacco-related health care costs. Similar proceedings had been commenced in British Columbia and New Brunswick by governments of those provinces. Six tobacco companies claimed to be foreign companies beyond jurisdiction of provinces. Foreign tobacco companies unsuccessfully brought motions in British Columbia and New Brunswick challenging jurisdiction of those courts. Foreign tobacco companies commenced motion in Ontario for order setting aside service ex juris of statement of claim and staying or dismissing action as against them on basis of lack of jurisdiction. Ontario government wanted to tender judgments of British Columbia and New Brunswick courts into evidence rather than just use them as authorities. Motion dismissed. Ontario government was entitled to rely on judgments as precedents but not tender them into evidence. Authority relating to use of factual findings in prior judgment was distinguishable. In present case, Ontario government was not seeking to rely on factual findings but rather legal analysis and conclusions. Ontario government was unable to point to any factual findings underlying conclusions in British Columbia and New Brunswick judgments that there was real and substantial connection with those provinces.

Ontario v. Rothmans Inc.
(Sep. 20, 2011, Ont. S.C.J., Conway J., File No. CV-09-387984) 207 A.C.W.S. (3d) 485 (40 pp.).

Agency

REAL ESTATE AGENTS AND BROKERS

Commission term triggered by qualifyingoffer to purchase

Action by realtor for $8,995 commission plus GST pursuant to listing agreement. Defendant’s property was listed for $199,900. Commission terms of listing agreement stated in consideration of plaintiff listing property, defendant agreed to pay brokerage a commission of 5% of the sale price or 4.5% if sold by plaintiff personally for any valid offer to purchase the property from any source obtained during the listing period and on the terms and conditions set out in agreement or such other terms and conditions as defendant may accept. Plaintiff obtained offer for property at listing price on last day of term of listing agreement, but defendant refused to accept. Defendant argued commission was only payable if he accepted offer and property sold. Defendant further argued that agreement was void because plaintiff was working for him and prospective purchaser and because offer did not meet his conditions of 15-day closing, requirement that buyer install septic tank and well and pay registration fee. Action allowed. There was no doubt defendant began avoiding plaintiff and frustrating his attempts to sell property because he had decided not to sell unless he was able to purchase a farm. “Sale price” in commission clause of listing agreement referred to sale price in offer and did not require a completed sale. Commission term was triggered by qualifying offer to purchase. Offer in question was for listing price. Defendant did not respond to plaintiff’s attempts to contact him about offer until plaintiff advised defendant commission would be payable regardless. Defendant then met plaintiff, refused to sign offer and complained plaintiff was harassing him. Land in question was bare and there was no evidence 15-day closing date and septic tank and well requirement were important terms. Furthermore, defendant had made previous counteroffers that removed these terms. Registration fee was a mere $70, so this was not a material condition. Plaintiff obtained offer matching listing price, so clearly did not breach his duties to defendant. Plaintiff acted in good faith throughout and invested significant work and expense. Defendant changed his mind and turned his back on the contract. Defendant to pay $8,995 commission plus GST. Defendant’s offer to settle for $250 did not impact costs. Trial took two days, with some delay caused by plaintiff’s lawyer’s absence. Defendant to pay $1,225 costs.

T.L. Willaert Realty Ltd. v. Fody (Oct. 4, 2011, Ont. S.C.J. (Sm.Cl.Ct.), Searle D.J., File No. 144/10) 207 A.C.W.S. (3d) 615 (13 pp.).

Employment

EMPLOYMENT RELATIONSHIP

Legal tests to be applied to determine employment status were not considered

This was appeal and cross-appeal from judge’s decision varying assessments. Appellant engaged truck drivers to provide services to client. Respondent determined that 96 truck drivers engaged by appellant in 2002, 2003 and 2004 were employees. Respondent assessed appellant for premiums payable under Employment Insurance Act (Can.), and contributions payable under Canada Pension Plan. Appellant appealed. Judge divided workers into two groups. One group was made up of 43 drivers who had signed agreement with appellant and other group was 53 drivers for whom there was no evidence of written agreement. Judge concluded that 53 drivers were employees of appellant but other 43 drivers were not. Appeal allowed; cross-appeal dismissed. Judge did not err in considering two groups of drivers separately. Judge appeared to have considered that any driver who had signed one of 43 agreements was incorporated drivers but that finding was based on misapprehension of facts. Of 43 drivers who signed agreements only 2 were incorporated drivers. As result of judge’s approach to 43 drivers who had signed agreements, legal tests to be applied to determine whether they were employees were not considered. Agreement signed by drivers contained clauses that suggested common intention that driver would be engaged as person carrying on own business but other factors must be considered. Appellant did not supervise drivers. Drivers did not provide own trucks or equipment or bear any costs of operating trucks. Contracts provided right to driver to substitute another driver at own cost but there was no evidence that any driver exercised right. Drivers did not bear any financial risk related to any investment in trucks or equipment. Drivers did not bear any responsibility for investing in anything that was required to fulfill contractual obligations or for managing work. Drivers did not negotiate rates of pay. Factors, on balance, weighed in favour of conclusion that drivers who signed agreements with appellant were employees, in contradiction to intention clauses. With respect to remaining 53 workers who did not sign agreements, judge’s conclusion that drivers were not self-employed was reasonable. Judge did not make error of law or palpable or overriding error of fact.

TBT Personnel Services Inc. v. Canada (Sep. 22, 2011, F.C.A., Sharlow, Pelletier and Stratas JJ.A., File No. A-388-10) 207 A.C.W.S. (3d) 477 (19 pp.).

Debtor and Creditor

ENFORCEMENT

Two principals acted in concert in theft and diversion of scrap metal

Plaintiff claimed unpaid trucking invoices owed by defendant to plaintiff. Defendant brought counterclaim for lost profits caused by plaintiff in diverting shipments of scrap metal and selling it to scrap yards for profit. Plaintiff argued principal of defendant fully participated in scheme and shared profits. Defendant claimed tort of intentional interference with economic relations. Plaintiff was to have judgment in amount of $97,766. Counterclaim was dismissed. Defendant failed to meet burden in relation to tort. Two principals acted in concert in theft and diversion of scrap metal. There was delay and inaction on part of principal of defendant. Principal of defendant ran day-to-day operations related to trucking of scrap metal. Inaction of defendant’s principal was deliberate decision to avoid disclosure and further investigation of involvement of defendant’s principal in scheme. Documentary evidence showed defendant’s principal had knowledge of scheme and was willing participant. Doctrine of abuse of process was not applicable. Issue of misleading court was more appropriately addressed in relation to issue of costs.

1590825 Ontario Ltd. v. 1199547 Ontario Ltd. (Sep. 16, 2011, Ont. S.C.J., Shaughnessy J., File No. 61249/09SR) 207 A.C.W.S. (3d) 272 (13 pp.).

Civil Procedure

CHANGE OF SOLICITOR

Court inferred confidential information imparted

Parties lived together for four years and were never married. Parties had one child. Relationship between parties was high conflict. Respondent had sole custody of child with specified residential schedule for parties to follow. Respondent brought motion for removing solicitors for applicant. Respondent argued current litigation was closely related to earlier litigation. From 1998 to 2006, respondent was represented by previous counsel as well as current counsel. Applicant’s counsel throughout was same. Previous counsel’s legal assistant began working as legal assistant to applicant’s counsel. Previous litigation was inextricably bound to issues in current litigation. Previous counsel’s retainer was not for unrelated proceeding but culminated in order on which father relied in motion for contempt. Court inferred confidential information was imparted. Public represented by reasonably informed person would not be satisfied that no use of confidential information would occur in circumstances. Applicant’s solicitor was to be removed as solicitors of record for applicant.

K. (M.S.) v. T. (T.L.) (Sep. 20, 2011, Ont. S.C.J., Wilson J., File No. 04FA-012804FIS) 207 A.C.W.S. (3d) 203 (7 pp.).

Aboriginal Peoples

SELF-GOVERNMENT

Appeal tribunal did not respect procedure and parameters

Applicant was candidate running for Chief in Band Council election. Applicant placed second by margin of three votes. Re-count reduced margin by two votes. Applicant launched appeal of election. Applicant challenged outcome of Band Council election. Appeal tribunal dismissed notice of appeal. Decision was signed by three individuals one of whom was not band member appointed to appeal tribunal. Application for judicial review was allowed. Appeal tribunal was “federal board, commission or other tribunal” for purposes of Federal Courts Act (Can.), and court had jurisdiction to consider application. Appeal tribunal did not respect procedure and parameters set out in Band’s Election Act. Appeal tribunal went beyond evidence referenced in notice of appeal and applicant’s affidavit of particulars in assessing whether there was sufficient evidence to move to second stage of appeal process. Appeal tribunal acted improperly and breached duty to act fairly. Appeal tribunal should have given applicant opportunity to hear and rebut opposing evidence in context of hearing. Appeal tribunal exceeded jurisdiction in assessing whether there was sufficient evidence to warrant appeal hearing. Appeal tribunal was not improperly constituted. Refusal by one of members to endorse preliminary ruling dismissing appeal was strong indication that there was sufficient evidence to warrant formal hearing.

Felix v. Sturgeon Lake First Nation (Oct. 6, 2011, F.C., Bedard J., File No. T-667-10) 207 A.C.W.S. (3d) 181 (25 pp.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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