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Digests

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Tuesday, March 28, 2017 @ 6:36 AM

DISCIPLINE AND TERMINATION OF EMPLOYMENT - Resignation - Elements

Appeal by Avalon from judgment in favour of Evans in his wrongful dismissal action. Evans cross-appealed from the lack of an award for moral and punitive damages in the judgment. Evans worked for Avalon, a car dealership, from 1997 to July 2010. He was the commercial fleet manager responsible for dealing with commercial customers, reporting to Lester, the General Sales Manager, and Wilkins, the owner. Evans was also responsible for the oversight of the sales desk at the dealership premises. Evans was discovered to have made an inventory control error that delayed a payment to Avalon for a vehicle that was modified prior to delivery to a customer. A tense meeting took place involving Evans, Wilkins and Lester, during which Evans suffered a stress reaction. He went home early, but returned to work later that evening. He handed his keys over to Lester and said he was “done”, despite Lester’s efforts to calm him down. Lester informed Wilkins that Evans had resigned. Evans subsequently tried to call Wilkins, but his calls went unanswered. When they met four days later, Wilkins was harsh in criticizing Evans for deserting the dealership when it was busy and short-handed. Evans sought emotional support and presented a note from his doctor in support of a stress leave. Wilkins tore up the note and told Evans to leave. Evans’ final compensation was limited to his vacation pay and an incentive bonus owing to him due to a previous miscalculation. At trial of Evans’ wrongful dismissal and breach of contract action, the judge found that Evans’ resignation was neither voluntary nor equivocal, and that Avalon breached its duty of good faith and fair dealings in failing to give Evans time to cool off and reconsider, failing to make further enquiries and act with consideration in response to the resignation. Alternatively, Avalon’s actions showed a careless disregard for Evans, breaching an implied term of their contract. The judge awarded Evans damages for wrongful dismissal based on a salary that was reduced from what he had earned previously as commercial fleet manager given that, had he resumed work at Avalon, his duties would have been modified based on his medical condition. The judge found that Evans was entitled to compensation for lost short-term disability benefits resulting from the manner in which Avalon completed the supporting forms. She relied on the past practices of the parties in finding that Evans was entitled to an incentive bonus paid for a May 2010 sales program. ... [read more]

Tuesday, March 28, 2017 @ 6:35 AM

PARDON OR RECORD SUSPENSION - Appeals and judicial review - Parole boards

Application by Thanabalasingham for judicial review of a Parole Board of Canada decision denying the applicant’s request for a record suspension. The applicant, a Tamil citizen of Sri Lanka and, at the time of application, a permanent resident of New Zealand, was injured in a house fire and died in January 2017. The applicant was allegedly involved in a Tamil youth street gang in Canada and, in the 1990s, was convicted of three charges related to violent activity. The applicant was deported in 2006 following his arrest on the grounds that he was a member of an organized crime group and was subsequently charged with perjury for minimizing his involvement in the street gang. He had resided in New Zealand since his deportation. In 2009, he was denied a record suspension on the grounds that he had not demonstrated good conduct, he had unpaid fines and he had been deported as a danger to the public. He applied for a record suspension a second time in 2014. In 2015, the Board reached a preliminary decision to refuse the applicant’s request. In 2016, the applicant responded by letter providing context for his criminal involvement. In May 2016, the Board refused his request for a record suspension on the basis that, despite positive factors, the applicant involved himself in a violent lifestyle, he had been charged with numerous offences and his time in Canada had not produced positive achievements. At issue on the application was whether the Board erred in law in 1) misinterpreting its discretion under the Criminal Records Act, and 2) failing to consider relevant factors. The applicant’s counsel argued that good conduct was required to be assessed within the relevant time period, and that the Board committed a reviewable error in treating the applicant’s perjury charge as though it constituted bad conduct within the period of time under review. The applicant’s counsel argued the relevant time period should be ten years back from when he applied for the record suspension in 2014, which would have placed his perjury charges outside the period under consideration. ... [read more]

Monday, March 27, 2017 @ 8:51 AM

CONSIDERATION - What constitutes - Adequacy - Value

Appeal by Kostic, the plaintiff, of a judgment dismissing a claim in contract on the basis that the contract was unenforceable because it was not supported by consideration and that even if it was enforceable, Kostic suffered no damages. Kostic had sued the Piikani Nation for wrongful termination of a business agreement between her and the Nation wherein the Nation agreed to retain her to provide investment advice. Kostic had argued she suffered a financial loss due to being denied the opportunity to earn commissions as an investment advisor. The trial judge found the Nation’s covenant in the business agreements was not enforceable because Kostic gave no consideration for the covenant. The trial judge found there was no consideration because Kostic’s commitment to provide investment services was the same obligation she already had to her employers. The trial judge rejected Kostic’s argument that her commitment to make herself available for the five-year contractual term to perform the requested services amounted to consideration. The trial judge also found that Kostic suffered no damages because the Nation was not obliged to pay and did not pay any of the fees or expenses under the agreements. On appeal, Kostic argued that the trial judge erred in finding no consideration to support the arrangement and that she suffered no damages. ... [read more]

Monday, March 27, 2017 @ 8:50 AM

AGENCY - Authority of agent - Apparent or ostensible authority - Relationship of principal and third person - Liability of principal to third person

Appeal by defendant Currie from an order overturning the dismissal of TD's claim against him and finding TD and the Craigs were not entitled to a discharge of the mortgage. Currie lent money to the Craigs, secured by a mortgage. The initial financing and the mortgage was negotiated by Fuoco Holdings and Fuoco. The mortgage eventually matured and went into default. The Craigs paid money to discharge their mortgage. The funds were misappropriated by Fuoco, who was the sole contact dealing with the mortgage. Currie denied authorizing Fuoco to receive any payments directly on his behalf. The Master held that the Craigs’ lawyer had unwisely paid Fuoco, not Currie, the actual creditor. He further found that Fuoco had no actual or ostensible authority to receive the funds on behalf of Currie.  He found Currie was not bound by the payout statement provided and the payout funds received by Fuoco, and he dismissed TD’s claims. The Master’s decision was reversed on appeal. The Chambers Judge held that Currie had held out Fuoco as his agent with authority to provide payout statements, and to accept payment of the funds. As a result, he held that Currie was bound by the payout statement and was deemed to have received the payout funds in full and in complete satisfaction of the mortgage. He ordered that the mortgage be discharged. He also found that the Master erred in dismissing TD's claims against Currie. ... [read more]

Monday, March 27, 2017 @ 8:49 AM

CIVIL PROCEDURE - Disposition without trial - Dismissal of action - Delay or failure to prosecute

Appeal by the defendant, the litigation representative of the wife's estate, from refusal to strike a matrimonial property claim issued by her ex-husband.  The parties married in 1982, separated in 1996, and divorced in 1999. The husband's original matrimonial property action remained unresolved. After the wife's death in July 2014, the husband filed a proof of death with the registrar of land titles. The wife's estate applied to sever the joint tenancy in the matrimonial home and brought an application to terminate co-ownership. The wife sought dismissal of the husband's original matrimonial property action pursuant to Rule 4.33 on the basis of undue delay. The chambers judge refused the relief sought. Although three years had passed since the last significant advancement of the action through examinations for discovery, the wife's counsel had acquiesced in the delay by leading the husband's counsel to believe no steps would be taken to enforce time limits while the matter moved toward settlement. Continuation of the matrimonial action was warranted to ensure the husband received an equitable division of property now held in the wife's name. The wife's estate appealed. ... [read more]

Monday, March 27, 2017 @ 8:48 AM

BINDING ARBITRATION - Practice and procedure - Hearings - Evidence - Appeals and judicial review

Appeal by Federal Insurance Company of Canada (Federated) from an order overturning an arbitrator’s decision and finding that the abuse of process doctrine applied to preclude it from leading evidence as to the status of an insurance claimant. In 2010, the claimant was injured in a motor vehicle accident while a passenger in his father's vehicle. The vehicle collided with a truck, which was insured by Federated. The claimant claimed Statutory Accident Benefits. The vehicle had been insured by Intact Insurance Company (Intact), but Intact claimed that it had cancelled the policy five days before the accident for non-payment of premiums. The father had been convicted of driving without insurance at the time of the accident. As a preliminary issue, Intact argued before the arbitrator that the abuse of process doctrine applied to prohibit Federated to lead evidence that the father was insured by Intact at the time of the accident. Federated wanted to lead evidence that because Intact had not followed the required procedures when purporting to cancel the policy, the father was insured at the time of the accident. Intact maintained that the claimant’s father’s status as an insured or uninsured driver had been decided in the proceedings in which he was convicted of driving without insurance and that it would be an abuse of process to permit Federated to re-litigate the issue. Federated argued that the facts of this case fell within an exception to the abuse of process doctrine, namely, that fairness dictated that the original result should not be binding in the new context. The arbitrator held that the abuse of process doctrine should not prevent Federated from leading evidence that the driver was in fact insured at the time of the accident. On appeal, the application judge reversed the arbitrator’s decision, holding that the issue could not be re-litigated in the context of the arbitration. The appellant was granted leave to appeal from the application judge’s order. ... [read more]

Friday, March 24, 2017 @ 8:51 AM

FRAUD AND MISREPRESENTATION - Pleadings - Pleading fraud and fraudulent misrepresentation - Sufficiency - Striking out statement of claim for absence of reasonable cause of action

Appeal by the plaintiff, PP, from an order striking his statement of claim without leave to amend. The plaintiff and the defendant, DD, had a two-month relationship that involved several instances of consensual sexual intercourse. Based on their conversations, the plaintiff believed the defendant took birth control pills. Several weeks after the end of their relationship, the defendant advised the plaintiff that she was pregnant. Paternity testing confirmed that the plaintiff was the father. The plaintiff commenced a civil action against the defendant seeking damages for fraud, deceit, and fraudulent misrepresentation. The plaintiff alleged the defendant's deception regarding birth control vitiated his consent to intercourse and deprived him of the benefit of choosing his partner and time for assuming the responsibility of parenthood. The defendant applied to strike the plaintiff's statement of claim. The motion judge determined that fraudulent misrepresentation was an economic tort that should not be extended to family law conflicts. A lack of consent was not a constituent element of fraudulent misrepresentation. It was plain and obvious that a claim for damages arising from non-pathological emotional harm related to an unplanned parenthood could not succeed. The harm claimed did not rise to the level of compensable damage for personal injury, and could not sustain a claim for sexual battery. The statement of claim was struck without leave to amend. The plaintiff appealed. ... [read more]

Friday, March 24, 2017 @ 8:51 AM

PUBLIC PENSION PLANS - Veterans' pensions and allowances - Disability and survivors' pensions - Appeals and judicial review - Appeal boards and review tribunals

Appeal by a retired RCMP member, MacDonald, from a Federal Court decision affirming refusal of additional retroactive disability benefits. The appellant was an RCMP member between 1973 and 1986. In the course of his service, he suffered various injuries. In 2003, the appellant applied for a disability pension on the basis of chronic back injuries suffered during his service. The claim was dismissed in 2005 due to insufficient medical evidence. In 2009, with the benefit of fresh medical evidence on appeal, the Review Panel awarded the appellant disability benefits for some of his conditions. He was granted three years' retroactivity. The Panel found no grounds to grant the additional two years of retroactivity sought by the appellant and contemplated by s. 39(2) of the Pension Act. In 2014, the Veteran Review and Appeal Board affirmed the decision. The appellant sought judicial review. The Federal Court determined the Board did not err in interpreting s. 39(2) of the Act, and exercised its discretion in refusing additional retroactivity in a reasonable manner. MacDonald appealed. ... [read more]

Thursday, March 23, 2017 @ 8:00 PM

Criminal Code offences - Offences against person and reputation - Motor vehicles - Impaired driving or driving over the legal limit

Appeal by the Crown from the acquittal of the accused, McLachlan, for impaired driving. The accused was arrested after she failed a roadside impaired driving test. She provided two breath samples at the detachment indicating a blood-alcohol level of approximately twice the legal limit. The breath samples were taken more than two hours after the accused’s arrest due to delays at the detachment. In accordance with normal practice, the qualified breath technician required the accused to stand on a scale in order to provide her weight. Knowledge of the accused’s weight aided a toxicologist in forming an expert opinion that no bolus drinking had occurred. The trial judge found that the police action of requiring the accused to stand on a scale constituted an illegal search that breached her s. 8 Charter rights. The evidence was excluded pursuant to s. 24(2) of the Charter, resulting in the accused’s acquittal. The Crown appealed. ... [read more]

Thursday, March 23, 2017 @ 8:00 PM

Elements of the offence - Mens rea - Insanity or mental disorder - Finding of not criminally responsible - Knowledge of wrongfulness

Appeal by the accused, Sualim, from dismissal of his application for a not criminally responsible (NCR) declaration. The accused was convicted of five counts of robbery and theft over $5,000 in connection with a string of armed robberies. Following the convictions, an NCR hearing was conducted on various dates in 2013 and 2014. Two forensic psychiatrists testified. They agreed the accused suffered from a major mental illness, that he experienced psychotic symptoms in the days preceding the robberies, that his behaviour was goal-directed at the time of the offences, that he was able to appreciate the nature and consequences of his actions, and that he knew his actions were legally wrong. The two experts disagreed on whether the accused knew his actions were morally wrong. In each instance, the experts based their respective conclusions on the accused’s divergent statements during their interviews. The trial judge attributed no weight to the expert evidence, as they were based on the accused’s hearsay self-reporting. The judge accordingly concluded the defence failed to meet the onus of establishing the accused was NCR at the time of the offences. The judge subsequently declined to re-open the hearing after being advised of an agreement between counsel that the hearsay aspects of the psychiatric evidence were admissible. The accused appealed. ... [read more]