Monday, January 30, 2012

140 Law - Legal Headlines for Monday, January 30, 2012

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Ontario Human Rights Tribunal Digest: January 2012

Each month, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


Charlotte Vallee v. Fairweather Inc.

The Applicant, a 57-year old woman, filed an Application alleging discrimination in employment based on disability and age. Ms. Vallee alleged that these prohibited grounds were factors in the Fairweather's decision to eliminate her position as district sales manager. The Respondent failed to file a Response.

The Applicant cited several incidents of discrimination  for which she sought substantial monetary compensation:
  1. When the Applicant advised her supervisor that she required a period of medical leave, he commented that she had had a negative attitude in the past; 
  2. When the Applicant was on disability leave, the Applicant's supervisor communicated to staff a message to hire only "dumb, young, and good looking employees"; 
  3. When the Applicant returned following her period of disability (one-year), the Applicant's supervisor stated she had felt abandoned by the Applicant; and 
  4. The Respondent offered the Applicant alternative employment, as an outlet store manager, a position she argued did not match her success, skills and experience. 
The Tribunal had to rule based only on the Applicant's materials, as it did not have the benefit of responding materials and did not have the opportunity to question the respondent's witnesses in regards to the elimination of the Applicant's position.

The Tribunal proceeded to consider all the evidence, finding that widespread layoffs of employees, including the Applicant, and the fact that the Respondent had not replaced her, indicated a non-discriminatory basis for the elimination of the Applicant's job. However, the Tribunal found that other circumstances demonstrated that age and disability were factors in the Respondent's decision to eliminate the Applicant's position, holding as follows:
...other circumstances, including the "dumb, young, and good looking" hiring message and the supervisor's comments analogizing a medical leave to abandonment, suggest that the respondent took issue with the applicant's disability and age. I note also that, while the applicant was laid off, the respondent did not eliminate all district sales manager positions. 
Accordingly, the Applicant was able to satisfy her onus to prove, on a balance of probabilities, that she had been subjected to discrimination in employment.

Of note, the Tribunal held that, even though the Applicant could not demonstrate that the "dumb, young, and good looking" hiring practice was directly applied to her, that did not prevent it from inferring that it had informed the respondent's staffing practices and that it was a factor in the respondent's decision to lay her off in all the circumstances.

The Tribunal requested further written submissions on the question of damages, and did not rule on the appropriate remedies at this juncture.

Fedda v. Tony Graham Motors

The Applicant, an apprentice mechanic, alleged discrimination by his employer on the basis of disability. The Applicant was involved in a car accident and was off work for several months. He suffered injuries to his eyes, lower back and neck.

Upon his return, he was placed on modified duties, including performing oil changes, checking tire pressure and lubricating door locks and hinges. Four months into his modified duties, the Applicant sent his supervisor an email stating that he wished to achieve his goal of becoming a full-licensed auto mechanic and would work hard to achieve that goal despite his physical limitations. The Respondent responded that he would not be moving into the shop to work on cars for the "forseeable future" and directed him to focus on taking care of his health. The Applicant took this to mean that his future prospects with the company were limited. Three weeks later, the Applicant was accused of stealing and terminated. The Applicant argued that this termination was a reprisal for his email and relied on the timing of events.

The Respondent took the position that it had terminated the Applicant for theft. The Applicant stated that he had not stolen, but that he had in his new role of Team Captain committed mistakes in record keeping (due to lack of proper training) which gave the impression of impropriety and that the Respondent was simply the charge as a pretext be rid of him in light of the email.

The Tribunal held that the timing of events was not enough to prove discrimination:
The applicant relies entirely on the timing of events.  He states, as set out above, that roughly three weeks after he wrote the email above he was accused of stealing.  The Applicant does not deny he made and that there was a real issue but states that the respondent used the accusation as a pretext to be rid of him in light of the email. However, the applicant also stated that in sending the email he was not asking the employer to do anything and was not suggesting any changes to the status quo. Further, he agreed that there was no new information in it - the employer had been aware of his limitations since his return in June. 
The Tribunal agreed with the Applicant that perhaps the termination was not fair in the circumstances, but went on to hold that it does not have jurisdiction to deal with complaints of "unfairness":
The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent's alleged actions and a Code ground. 
Blake Shearer v. The Royal Canadian Legion

The Applicant, a bar steward,  alleged discrimination against the Respondent employer on the basis of disability. The Applicant had a acrimonious relationship with her superior which led to him taking a four-day, doctor approved, sick leave. The note from the doctor authorized a four to five day leave for "medical reasons".  Upon on his return to work, the Applicant was terminated. Prior to the taking of this sick leave, the Applicant had not advised the Respondent of any medical health issues. The Applicantalleged that he had been terminated because of his disability that had required him to take the sick leave.

The Respondent alleged that the Applicant was terminated for economic reasons and that it did not know that the Applicant had a disability.

The Tribunal held that the Applicant had not met the required standard to prove she had a "disability" which required accommodation by the employer:
It is not clear from the Application or the testimony of the applicant whether he had a disability. The medical information is not specific and simply refers to "medical reasons". The applicant self-reports that he was stressed. The applicant provided no evidence, medical or otherwise, to indicate that he had a chronic condition or ongoing disability. The Tribunal has held that, in general, temporary illnesses are not considered to be disabilities under the Code.
Further, the Tribunal held that the evidence showed that the decision to termination the Applicant had been made before the Applicant's commencement of his sick leave and notification that he was having health issues.

Shahenaz Alibhai v. Aditya Birla Minacs Worldwide Inc. 

In this case, the Applicant alleged age discrimination by the Respondent after not being hired as an advisor. She relied on the bald assertion that the Respondent only hires young advisors.

The Tribunal held that that fact, if true, was insufficient to support the conclusion that the applicant's right to be free of discrimination on the basis of age was infringed by the Respondent. The Tribunal noted that there was no allegations of age discrimination in the Applicant's Application that required a response from the Respondent.

Lorne Pardy v. John Graham

In this case, the Applicant alleged discrimination in employment on the basis of sexual orientation. The Respondent had used the word "faggot" in a conversation with the Applicant about an event that had been catered the night before, in referring to a meal that had been prepared by the Applicant and was the subject of a complaint by the person who had ordered it.

The Applicant argued that the Respondent's comment was a direct attack against him because the Applicant knew he was a gay man and knew that the Respondent had impugned other vulnerable groups in the past.

The Respondent claimed that the remark was just an unfortunate choice of words spoken in anger at the spur of the moment.

The Tribunal held that given the Respondent's previous behaviour in disparaging other vulnerable groups, it was fair for the Applicant to have viewed the Respondent's remark as a confirmation that the Respondent also disliked gay males for reason on the basis of their sexual orientation. The Tribunal found that this was enough to have poisoned the Applicant's work environment:
I find that the respondent was directing his comments at the applicant, with whom he appeared to still be angry. Whether or not he intended the word "faggot" to be a direct slight to the applicant, or was just an unfortunate choice of words spoken in anger, it had the effect of confirming the applicant's fears about the respondent's feelings about him as a gay man. Having poisoned the applicant's work environment, I find that the respondent discriminated against the applicant in employment on the basis of sexual orientation. 
Mr. Pardy was awarded damages of $5,000.00.


Cottle v. Toronto Police Service

 In this case, the Applicant alleged discrimination in employment on the basis of disability. The complaint focused on an alleged incident of discrimination when the applicant was told that she would not be reclassified to the position of Detective Constable due to her medical restrictions. The Application was filed July 15, 2011 even though the alleged incident occurred on June 16, 2004.

The Applicant argued that the delay was incurred in good faith; she had made numerous attempts to have the matter resolved internally through the organization's chain of command and was now bringing a legal proceeding as she had exhausted all the internal processes of the Respondent's without receiving appropriate redress.

The Tribunal held that this was not a valid justification for the delay:
It is apparent that the reason for the delay in filing the Application was because the applicant wanted to see if her issues could be resolved through the respondent's internal processes. 
Nothing prevented the applicant from filing a timely Application under the Code while she pursued her complaint internally.  
The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application.
- Robert Tanha, Toronto
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This Week at the Ontario Court of Appeal - January 30, 2012

Each Week Wise Blog analyzes recent decisions from the Ontario Court of Appeal.

Placzek v. Green

The respondent, Carmen Placzek, was severely injured in a rear end collision. The appellant, Albert Green, was the driver of the vehicle that struck the respondent's vehicle. The respondent suffered from a severe case of fibromyalgia for many years prior to the accident. At trial, the appellant claimed that the fact that the respondent's physical problems affected her life after the accident was attributable to her fibromyalgia and not to the minor accident involving the parties.

At the outset of the trial, the trial judge struck the jury. She concluded that the appellant was liable. Moreover, the trial judge asserted that the injuries that the respondent suffered as a result of the accident caused her significant problems. As a result, the trial judge awarded the respondent $919,237 in damages, with a large portion going for her lost income and loss of future earnings.

There were two primary grounds of appeal submitted by the appellant. The first was the trial judge's decision to discharge the jury. The Court noted that the decision to discharge a jury is a discretionary one and they will defer to that exercise of discretion unless its exercise was characterized as arbitrary, capricious or unreasonable. The trial judge's decision to discharge the jury related to the complexity regarding various aspects of the evidence. For instance, since the respondent was a self-employed realtor, there were numerous factual variables that complicated the quantum of that claim. Also, there was complex medical, engineering and biomedical evidence. The Court did state, however, that trial judge erred by expressing concerns that the appellant's position on liability had an influence in striking the jury. Nevertheless, the Court was satisfied that the trial judge made it clear that his decision to strike the jury was associated with the complexity of the evidence.

The appellant's second ground of appeal concerned the trial judge's assessment of damages. Specifically, the appellant contended that the trial judge failed to quantify the damages based on a critical assessment of the evidence and instead picked a point somewhere in the middle between the various scenarios advanced by the parties. In rejecting the appellant's position, the Court declared that the trial judge correctly decided that the respondent's post-accident issues were attributable to the accident. The respondent's working life was shortened as she would only be able to work part time. The Court held that these findings were reasonably available on the evidence and impacted the quantum of damages, particularly damages relating to the calculation of the respondent's loss of income and future earnings.

North York Family Physicians Holdings Inc. v. 1482241 Ontario Limited

This appeal was based on a landlord-tenant dispute. The appellant, landlord, was the owner of a multi-storey office building and parking facility. The respondent, tenant, was a holding company that was created for the purpose of holding the lease. Its business was subletting the leased premises to Shoppers Drug Mart and operating 181 parking spaces. Additionally, the visitor parking area consisted of 156 parking spaces and was designated in the lease as patient parking for North York Family Health Team Inc., a company operated by the respondent, not Shoppers Drug Mart customers.

The appellant raised three issues on appeal. The first issue concerned the commencement date of the lease. The Court found no error in the application judge's analysis of this issue. The term "premises" included the demising walls. Two provisions contained in the lease dealt with the commencement date and both were based on delivery of the premises by the landlord. The demising walls were not constructed until June 22, 2009. As a result, the lease did not commence until the said date when the "premises" were delivered.

The second issue raised by the appellant related to the commencement date for the payment of rent for the parking spaces. The appellant's position was that the parking rent commencement date was April 2009. The Court noted that although the application judge erred in the interpretation of the term "tenant business" to mean the business of the sub-tenant, Shoppers Drug Mart, the judge nevertheless reached the correct verdict in the context of Article 4.02 of the lease. The Court reviewed the evidence and found that both parties treated the parking spaces as not turned over by the appellant until August 2009. Moreover, the appellant did not invoice the respondent for parking before the said date and also collected parking revenues until August 1, 2009 from the parking spaces that were leased to the tenant. 

The Court held that the application judge did not err in her decision that the rent for parking spaces did not commence prior to August 2009. It was clear that the tenant's business (operating leased parking spaces) did not commence prior to August 2009.

The final issue advanced by the appellant was the landlord's obligation to pay the leasehold improvements allowance and whether that amount should be paid directly to the respondent or Shoppers Drug Mart. The application judge held that the appellant was required to pay the leasehold improvements to the tenant. However, the Court stated that in oral argument, both counsel agreed that the amount should be paid directly to Shoppers Drug Mart. Thus, the order of the application judge required amendment.

Musselman v. 875667 Ontario Inc. (Cities Bistro)

The primary issue on appeal was whether the respondent, landlord, was considered to be an occupier of the leased premises within the definition of "occupier", pursuant to the Occupiers' Liability Act ("Act"). The appellant slipped and fell on the stairs leading from the bathrooms to the main floor of the restaurant and suffered severe injuries. The question on appeal did not concern the trial judge's interpretation of "occupier" but rather the treatment of relevant evidence.

Counsel for the appellant argued that the trial judge misinterpreted three aspects of the evidence. Two of the misinterpretations concerned the substance of the evidence provided by the tenant, Brian Heasman. The appellant contended that Mr. Heasman's evidenced established that the respondent demonstrated the necessary responsibility for control over the premises to qualify it as an "occupier" under the Act. Furthermore, the appellant submitted that the trial judge misunderstood the meaning of clause 6 in the operative lease between the parties. Specifically, the appellant argued that clause 6 placed inspection and repair responsibilities on the respondent, thereby giving it sufficient control and responsibility over the premise to make it an "occupier" under the Act. 

Regarding paragraph 6 of the parties' lease, the trial judge held that Mr. Heasman had complete responsibility for repair and maintenance of the premises. The Court asserted that the trial judge carefully examined the contents of the entire lease and correctly concluded that paragraph 6 put complete responsibility on the tenant for repair and maintenance. They also accepted the respondent's submission that the exclusion of "wear and tear" from Mr. Heasman's responsibility to maintain and repair did not place any obligation on the respondent to repair and inspect the property. Further, the Court noted that the lease alone was not determinative of the trial judge's decision that the respondent was not an occupier under the Act. The conduct of the parties over the previous years and the fact that they were in a landlord/tenant relationship was significant factor in the trial judge's determination whether the respondent was considered an occupier.

Additionally, counsel for the appellant raised the argument in his factum that the respondent could be liable for negligence aside from any negligence associated as an occupier. Since counsel did not make an oral argument in support of this submission and the fact the trial judge held the respondent was not an occupier under the Act, the Court found no reasonable basis to conclude that respondent was liable in negligence.

- Alim Ramji, Toronto
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Friday, January 27, 2012

Wednesday, January 25, 2012

Giving Your Home to Your Children Can Have Tax Consequences

Many people wonder if it is a good idea to give their home to their children. While it is possible to do this, giving away a house can have major tax consequences, among other results.

When you give anyone property valued at more than $13,000 in any one year, you have to file a gift tax form.

Also, under current law you can gift a total of $5 million over your lifetime without incurring a gift tax. If your residence is worth less than $5 million, you likely won't have to pay any gift taxes, but you will still have to file a gift tax form.  (And Congress may change the gift tax exemption, which is now scheduled to revert to $1 million at the end of 2012 unless Congress acts.)

While you may not have to pay gift taxes on the gift, if your children sell the house right away, they may be facing steep taxes. The reason is that when you give away your property, the tax basis (or the original cost) of the property for the giver becomes the tax basis for the recipient. For example, suppose you bought the house years ago for $150,000 and it is now worth $350,000. If you give your house to your children, the tax basis will be $150,000. If the children sell the house, they will have to pay capital gains taxes on the difference between $150,000 and the selling price. The only way for your children to avoid the taxes is for them to live in the house for at least two years before selling it. In that case, they can exclude up to $250,000 ($500,000 for a couple) of their capital gains from taxes.

Inherited property does not face the same taxes as gifted property. If the children were to inherit the property, the property’s tax basis would be "stepped up," which means the basis would be the current value of the property. However, the home will remain in your estate, which may have estate tax consequences.

Beyond the tax consequences, gifting a house to children can affect your eligibility for Medicaid coverage of long-term care. 

There are other options for giving your house to your children, including putting it in a trust or selling it to them. Before you give away your home, consult an elder law attorney who can advise you on the best method for passing on your home.

This article was reprinted with the permission of

140 Law - Legal Headlines for Wednesday, January 25, 2012

Have a wonderful day and thank you for taking the time to click through our tweets! 

- Rachel Spence, Law Clerk
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Monday, January 23, 2012

TSA Sets Up Hotline for Air Travelers With Disabilities or Medical Conditions

Concerned about negotiating the airport security checkpoint with a frail elderly or disabled traveler? Now there is a dedicated hotline that travelers with disabilities or medical conditions and their families can call with questions or concerns about the security screening process.

According to the Transportation Security Administration (TSA), the new hotline will provide travelers with information about navigating often arduous airport security checkpoints. Although not spelled out in detail, the TSA's press release seems to offer hope that by calling 72 hours prior to arrival at the airport, travelers with disabilities or medical conditions will somehow be able to notify airport security officers of their trip, with the hope that those officers will be better prepared to handle their needs when they actually reach security.

The hotline, which has been named TSA Cares (presumably because the TSA is trying to counter numerous incidents where elderly or disabled passengers encountered problems at checkpoints), is available Monday through Friday from 9 am to 9 pm EST at 1-855-787-2227.

"TSA Cares provides passengers with disabilities and medical needs another resource to use before they fly, so they know what to expect when going through the screening process,” said TSA Administrator John Pistole. “This additional level of personal communication helps ensure that even those who do not travel often are aware of our screening policies before they arrive at the airport.”

Mobility International, a foreign exchange organization for people with special needs, offers a host of tips for navigating airport security on their Air Travel Tips for People with Disabilities page.

This article reprinted with permission from

140 Law - Legal Headlines for January 23, 2012

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Friday, January 20, 2012

140 Law - Legal Headlines for Friday, January 20, 2012

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Thursday, January 19, 2012

140 Law - Legal Headlines for Thursday, January 19, 2012

Here are the leading legal headlines from Wise Law on Twitter for Thursday, January 19, 2012:
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Wednesday, January 18, 2012

140 Law - Legal Headlines for Wednesday, January 18, 2012

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, January 18, 2012:
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Saturday, January 14, 2012

This Week at the Ontario Court of Appeal - January 13, 2012

Each week, Wise Blog looks at recent decisions from the Ontario Court of Appeal.

Tuerr Holdings Inc. v. Vrankovic

The appellant, Peter Vrankovic, appealed from an order granting summary judgment to the respondent, Tuerr Holdings Inc., on the appellant's guarantee of a second mortgage on a commercial property owned by Cambridge Place Commercial Corporation ("Cambridge"). The appellant was the president and director of Cambridge.

The respondent served a Notice of Intention to Enforce Security on Cambridge and a Notice to Attorn Rents on Cambridge's tenants as a consequence of Cambridge being in default on its second mortgage to the respondent. On May 14, 2010, the parties executed a Minutes of Settlement and Forbearance Agreement. The respondent agreed to suspend any further enforcement proceedings on the mortgages until September 5, 2010. This agreement was contingent on Cambridge paying the arrears owing to the respondent and keeping its first mortgage on the property, held by Meridian Credit Union (Meridian), in good standing. Moreover, the Minutes of Settlement and Forbearance Agreement were confirmed by a consent court order.

Contrary to their agreement, Cambridge failed to pay the arrears owing to the respondent and defaulted on its first mortgage to Meridian. As a consequence, Meridian obtained an order appointing a Receiver to sell the property. Furthermore, the respondent commenced an action against the appellant on his guarantee of the second mortgage and obtained summary judgment on the claim.

The Court agreed with the motion judge that Cambridge breached the terms of the Minutes of Settlement and Forbearance Agreement by failing to pay the arrears owing to the respondent and by its default under the first mortgage provided by Meridian. Further, when Vrankovic signed the Minutes of Settlement, the respondent was unaware that Cambridge was already in default in its mortgage payments to Meridian (first mortgagee), and owed over $500,000 in municipal taxes on the property. The Court reaffirmed the motion judge's conclusion that by signing the document in his personal capacity, the appellant waived his right to raise any previous deficiencies in the respondent's enforcement proceedings in response to the motion for summary judgment.

The Court dismissed the appellant's position that Meridian verbally agreed to forbear on enforcement of its first mortgage and to permit Cambridge to pay reduced rent so that it could pursue lease negotiations that would yield increased revenue from existing or potential tenants. The appellant submitted that this evidence served a viable defence to Meridian's assertion that it was entitled to enforce its mortgage security. Additionally, the Court noted that the motion judge correctly rejected the appellant's assertions of an oral forbearance agreement with Meridian, as these assertions were not supported by any documentary evidence, were inconsistent with the terms of the first mortgage and failed to adduce any convincing evidence that Cambridge lost prospective tenants as a result of the respondent's actions.

The Court added that Cambridge was hopelessly in debt, in breach of the terms of the first mortgage and could not be rescued by any extended lease arrangements that were a long ways away from completion. As a result, the Court found that the appellant failed to raise any genuine issues requiring a trial.

Warren Woods Land Corporation v. 1636891 Ontario Inc.

The primary issue on appeal was whether the appellant satisfied the three criteria for the granting of a stay under rule 63.02(1)(b) of the Rules of Civil Procedure.The order sought to be stayed was an order removing all notices filed by the appellant on the land of the respondents (the "Owner"). The application judge held that the appellant did not have an interest in the land in question at the time the notices were registered.

Article 3.14 of the Development Management Agreement between the appellant and respondent contained a provision, which gave the appellant an option to purchase the land. The respondent was disappointed with the appellant's work and advised the appellant that it wished to terminate the Agreement. The respondent did not take the required steps to terminate as contemplated by the Agreement.

The appellant registered the notices in question on October 16 and 28, 2009, claiming entitlement to an unregistered interest in the Owner's property pursuant to s.71(1) of the Land Titles Act. The respondent subsequently sent a Notice of Complaint to the appellant on August 8, 2011, which referred to default on the part of the appellant. The appellant replied to the respondent's Notice of Complaint by letter a two and a half weeks later, providing its understanding of their agreement. Further, the respondent claimed to have formally terminated the Agreement on August 30, 2011 and brought an application to have the notices that the respondent registered on title removed.

Additionally, the appellant claimed that the fact the Agreement created a contingent option to purchase land signified that it had an interest in the land. The respondent submitted that the issue whether an interest in land had been created was a question of mixed law and fact. Moreover, they stated that the appellant only had a right to an "incorporeal hereditament" at common law, which is an intangible right. In Bank of Montreal v. Dynex Petroleum Ltd, the court held, "At common law, an interest in land could issue from a corporeal hereditament but not from an incorporeal hereditament". Therefore, the respondent's position was that since the appellant only had a right to an incorporeal hereditament, it did not have an interest in the land in dispute at the time it registered the notices.

The respondent also argued that Article 3.14 of the Development Management Agreement was void because it contained no time restrictions and thus violated the rule against perpetuities. According to Politzer v. Metropolitan Homes Ltd, an equitable interest is void if it can vest beyond the perpetuity period of twenty-one years.

The Court articulated the three criteria for the granting of a stay:
  1. The appeal must raise a serious question; 
  2. The appellant must demonstrate that it would suffer irreparable hard if the stay were not granted; 
  3. Finally, on a balance of convenience, the appellant must satisfy the court that it would suffer greater harm if the stay were not granted than the respondents would suffer if the stay were granted. 
In dismissing the appeal, the Court held that there was not a serious questioned to be determined. The appellant failed to provide any reasons why the common law prohibition on the creation of an interest in land from an incorporeal hereditament should not apply. Concerning the rule against perpetuities, the Court found that the appellant did not respond to the respondent's claim that the Agreement was void since it was in contravention of the rule.

Additionally, the Court noted that refusing a stay would not result in irreparable harm to the appellant. Irreparable harm is harm that cannot be quantified in monetary terms. The Court found that the appellant would not be able to enforce the Agreement by claiming specific performance, as it intended to sell the lands and it did not put forth evidence that the lands were unique in any fashion.

The appellant failed to satisfy the third criteria as the Court declared that the balance of convenience did not favour granting a stay. If a stay were granted, the respondent would not be able to refinance the lands and sell them pending the outcome of the appeal. On the contrary, if a stay were not granted, the appellant would not be without recourse as it would still be in a position to sue for damages for alleged breach of the Agreement.

Elsegood v. Cambridge Spring Service

One of the primary issues of this appeal was whether the Employment Standards Act ("ESA")could support an employee's claim for common law damages.

The respondent worked for the appellant employer for seven years as a spring technician. There was no written employment contract. The respondent was laid off on two occasions. After the first occasion, he was recalled to work only to be laid off again approximately seven weeks later. The cumulative duration of the layoffs exceeded the statutory maximum of 35 weeks within a 52 week-period, as prescribed by s. 56(1)(c) of the ESA. Once the respondent's layoff period reached 35 weeks, he commenced an action for common law damages for wrongful dismissal rather than claiming termination pay under s.54 of the ESA. Holub Deputy J. awarded him $9,900 in damages reflecting a notice period of six months.

On appeal, the employer argued that an employee's employment status survives a statutory termination by the ESA.  It argued that the ESA and common law were independent regimes so that upon a statutory termination pursuant to the ESA, the employee was entitled only to remedies under the Act.

The Court did not agree. 

It held that the appellants could not rely on s. 56(1) of the Act, which provides that the employee is terminated "for purposes of section 54". The Court disagreed with the employer's position that the respondent was not terminated for all purposes, but only for the purposes of s. 54.  In fact, s. 56(1) prohibits an employer from terminating an employee without notice or payment in lieu of notice. The purpose of s. 54 is to prevent employers from avoiding their liabilities upon termination by pacing employees under a facade of indefinite layoff.

In holding that the ESA provides for the continued application of the common law despite its statutory termination provisions, the Court cited a passage by Iacobucci J. in Machtinger:
Section 4(2) states that a right, benefit, term or condition of employment under a contract that provides a greater benefit to an employee than the standards set out in the Act. I have no difficulty in concluding that the common law presumption of reasonable notice is a benefit...
The Court considered what would transpire if one accepted that the employee's employment at common law survived the operation s. 56(1). At common law, employers do not have a right to layoff employees. Unless there is an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employee's employment and is considered to be a constructive dismissal.

Employees are entitled to reasonable notice of termination, regardless of what an employment contract states. In Machtinger, one of the employees' contracts allowed his termination without notice, and the contract of the other individual allowed his termination on only two weeks notice. The trial judge found that the termination clauses were invalid because they violated the ESA. He held that the employees were entitled to seven and seven and a half months pay in lieu of notice respectively. On appeal, the Court agreed that the termination provisions were invalid, but held that the termination provisions supported the inference that the employees intended to have very short notice periods. The Supreme Court disagreed and stated, "If a term in null and void, then it is null and void for all purposes, and cannot be used as evidence of the parties' intention". Since the employees' contracts failed to address notice requirements, they were entitled to reasonable notice at common law.

The Court rejected the appellant's claim that an implied term in the employment agreement allowed the employer to place the respondent on indefinite layoff exceeding 35 weeks in a 52-week period. The Court noted that since the indefinite layoff provision failed to meet the ESA's minimum standard, it was void.  As a consequence, the Court declared that the implied term should not be read down but rather excised from the employment agreement.

R. v. Lalumiere

The appellant was convicted of two counts of counselling to commit murder against his ex-wife and her boyfriend. Prior to the convictions under appeal, the appellant accumulated 23 convictions for offences involving his ex-wife and her boyfriend ranging from uttering threats to criminal harassment. Various violence risk assessment tests conducted on the appellant indicated that he had a 70% likelihood of assaulting his ex-wife at least once in the next five years.

In 2007, the appellant was in jail for uttering threats and for breaching his probation order. During his time in jail, a confidential informant divulged to the police that the appellant desired to hire someone to kill his ex-wife and her boyfriend. On June 14, 2007, a police officer posed as a member of the Hells Angels and met the appellant in the visitor's area of the prison and told him that he understood that the appellant wanted to eradicate two individuals. The undercover officer provided the appellant with his phone number and the appellant was agreeable to the arrangement but he stated that he could not pay the officer until after his release at the end of the year. After failing to hear from the appellant over the ensuing two weeks, the officer returned to the jail and raised the issue once again with the appellant about having the two individuals killed. The appellant agreed to pay the officer $5,000 and later telephoned him to provide personal details about the targeted victims.

At trial, the appellant claimed that he knew all along that the undercover officer's intentions were not legitimate. The appellant asserted that he led the undercover officer on and planned to report him to authorities. Furthermore, prior to the undercover officer's meetings with the appellant, the police obtained a judicial authorization, which permitted the officer to secretly record his conversations with the appellant.  Also at trial, the appellant brought an application to exclude the audiotape of the June 27, 2007 telephone conversation under ss. 8 and 24(2) of the Charter. Moreover, the appellant applied to have evidence of his police interview excluded under ss. 10(a), (b) and 24(2) of the Charter. The trial judge found a breach of s.8 but rejected the rest of the appellant's applications.

On appeal, the appellant argued that the trial judge erred by failing to exclude the audiotape under s. 24(2) of the Charter, by failing to exclude the evidence of his police interview under ss. 10(a), (b) and 24(2) of the Charter, in his instructions to the jury and in his ruling on entrapment.

Concerning the ss. 8 and 24(2) Charter issue, the Court noted that the trial judge correctly applied the Collins factors in support of his conclusion that the evidence obtained should not be excluded under s. 24(2) of the Charter. Furthermore, the Court stated that the Grant factors favoured admission of the evidence because the undercover officer's evidence concerning his telephone conversations with the appellant was admissible in any event.

In regards to the appellant's ss. 10(a) and 10(b) claims, the Court reviewed the trial transcripts and concluded that the appellant was advised of his 10(a) and 10(b) Charter rights and the police offered to assist the appellant in contacting counsel. Further, they asserted that the appellant invited the police to continue speaking with him and he declined to answer specific questions when he felt he should not do so without the benefit of counsel present.
Additionally, the Court found no legal errors in the trial judge's instructions to the jury, holding that the trial judge informed the jury that it was their recollection of the evidence that carried the most weight. More importantly, the jury heard the audiotape of the conversation between the undercover officer and the appellant as well as the appellant's explanation.

On the issue of entrapment, the Court saw no error in the trial judge's pronouncement that the police acted on reasonable suspicion and did no more than provide the appellant the opportunity to commit the crime. Also, they noted that the police were justified in giving credence to the tip received from the confidential informant and that the undercover officers' conduct fell short of inducement.

Poole v. Whirlpool Corporation

The appellant terminated the respondent without cause in early March 2010. The respondent brought a motion and was awarded summary judgment for wrongful dismissal, and the motion judge ruled that the respondent was entitled to a bonus in the amount of $5,598.38 per month during the 19-month notice period determined upon the motion.

The appellants challenged the motion judge's decision that the respondent was entitled to a bonus, her calculation of the bonus and her conclusion that no genuine issue requiring a trial arose concerning the respondent's bonus claim.

The appellants argued that in order to qualify for a bonus under the applicable Bonus Plan, the respondent was required to be actively employed on December 31st of the year for which the bonus was claimed. Since the respondent was terminated in March 2010, he was not eligible for a bonus in 2010 or 2011.

The Court found that the motion judge did not err in her rejection of this position. The Court held that the bonus eligibility stipulation relied on by the appellants was not incorporated in the respondent's letter of employment. Moreover, there was no evidence that the stipulation was drawn to the respondent's attention at any time, whether in writing, orally, by means of the appellants' internal intranet communication system, or that he had ever agreed to it. Furthermore, the Court noted that the appellant's failure to cross- examine the respondent on his affidavit material, in which he swore that he never agreed to the stipulation, precluded any reliance by the appellants on the stipulation to defeat the respondent's bonus claim.

In regards to the motion judge's calculation of the bonus, the Court held that the motion judge was correct in her analysis as to the appropriate method for the bonus calculation. Finally, the Court found that the motion judge did not err in her ruling that no genuine issue requiring a trial arose in regards to the respondent's entitlement to a bonus or the method of calculating the bonus.
In dismissing the appeal, the Court concluded that once it was determined that the respondent was wrongfully terminated, the determination of his bonus was straightforward and based on evidence that was mainly uncontested.

 - Alim Ramji, Toronto

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