Tuesday, July 5, 2011

This Week at the Ontario Court of Appeal: 11-06-24

Each week Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Di Tomaso v. Crown Metal Packaging Canada LP. An appeal in a wrongful termination case. Mr. Di Tomaso was employed by Crown Metal for over 33 years as a mechanic, and informed him on September 9, 2009 that he would be terminated on the following November 6. On November 4, he was informed that his termination date would now be December 18. Crown Metal changed his termination date two more times subsequent to this, finally terminating him on February 26, 2010. Each letter that he received characterized his employment as having been temporarily extended. Upon his termination Crown Metal paid Mr. Di Tomaso severance pay and accrued vacation pay and benefits.

Mr. Di Tomaso then sued Crown Metal for failure to provide proper notice and wrongful dismissal. Crown Metal characterized the period after the initial termination notice as a period of "working notice," and suggested that in regards to the wrongful dismissal claim Mr. Di Tomaso was at most limited to 12 months' notice as he was an unskilled low-level worker. Mr. Di Tomaso argued that each subsequent notice was a new notice and therefore only the final notice (on February 24) should count as clear, unequivocal notice of termination.

The action proceeded by way of a motion for summary judgement. The motion judge agreed with Mr. Di Tomaso's arguments, pointing out that the existing authorities (such as Minott) did not limit a worker's wrongful dismissal damages based on the type of work they were performing. She found Crown Metal liable for 22 months' worth of notice to Mr. Di Tomaso. Crown Metal appealed.

The Court of Appeal dismissed both appeals. A termination extension, according to the Termination and Severance of Employment Regulations, can last up to thirteen weeks; if it exceeds that period (as it did here) then fresh notice is required. The Court stated that to find otherwise would allow employers to effectively extend termination indefinitely and be contrary to the intent of the legislation. The Court also stated that in these instances, "clear and unambiguous" notice of termination must include the final termination date, which meant that Mr. Di Tomaso had received only two days' notice before his termination.

The Court also agreed that in Minott it had previously rejected the notion that an unskilled employee's wrongful dismissal damages could be capped at 12 months and did not see the purpose of overruling that decision. The Court considered the appropriate period of notice in Mr. Di Tomaso's case, and agreed with the motion judge's decision that 22 months was appropriate notice for him. In doing so, the Court once again underlined that "character of employment" is but one of the many Bardal factors considered in determining duration of notice. Read-the-whole-case rating: 4.5 for employment law aficionados; 2.5 for everyone else.

Cunningham v. Moran. Following a separation resolved through mediation/arbitration where the parties maintained joint custody of their child, the father, Mr. Cunningham, launched a claim against his former common-law partner claiming that Ms. Moran had fraudulently induced him to pay more child support than he should have, and fraudulently concealed her ability to pay child support to him. Ms. Moran moved to strike the claim on the grounds that it was outside the court's jurisdiction by virtue of the mediation/arbitration agreement, that the claim amounted to a collateral attack on the existing orders, and that Mr. Cunningham's claims were res judicata, frivolous, vexatious and an abuse of process. Mr. Cunningham cross-moved for summary judgement in response. The motion judge agreed with Ms. Moran and struck the claim without leave to amend on the grounds that it was vexatious and frivolous, and that res judicata barred the claim. Mr. Cunningham appealed.

The Court of Appeal dismissed the appeal. The Court found that Mr. Cunningham's claim for damages was, in essence, a claim for repayment of child support payments he felt he either overpaid or should not have made at all, and payments from the respondent he felt he should have properly received. Other than his claim for general and punitive damages arising from the claimed wrongful conduct of Ms. Moran, these were not a true claim of damages but rather an attempt to attack agreements and awards made in a family law action. They also pointed out that to move for an adjustment to support orders, the proper action would have been to apply for a remedy under the Family Law Act or Child Support Guidelines. Allowing this action to proceed would therefore be endorsing an abuse of process.

The Court also noted that Mr. Cunningham should have raised the issue of deficiencies in Ms. Moran's financial statement when he first became aware of them, and that there was ample evidence that he had been aware that her finances were not fully documented and that he had raised the issues in his action during mediation. Therefore he was, at all material times, aware of the problems with Ms. Moran's disclosure and still consented to a mediation/arbitration agreement in spite of that knowledge. Under these circumstances, even if his motion had not been abusive and frivolous, the action would still fail. Read-the-whole-case rating: 3.

R. v. Nguyen. A Crown appeal from the acquittal of two property owners whose property contained a marijuana grow-op. An anonymous tip indicated that the Nguyens' house had been used as a grow-op location and that the appearance and character of the property was currently similar to that of a grow-op (windows and doors covered with blinds and sheets to prevent viewing into the house). A thermal flyover test demonstrated an unusual amount of heat emanating from the building, and there was visible moisture damage to the roof of the house unlike any other in the neighborhood (associated with grow-ops where moisture was not properly vented).

However, hydro consumption showed less power use, which was inconsistent with most grow-ops. On further investigation, it was found that the building was directly across the street from a hydro box, a location grow-operators often use so they can monitor the hydro box in case police visibly surveil it. The investigator also noted light timers by the exterior patio door, which are often used by grow-operators to simulate a lived-in residence. Finally, it was noted that in winter, when other homes were covered with snow, the property was emanating so much heat that its roof was bare due to melt-off. A search warrant was issued and the owners of the property arrested for cultivating mass quantities of marijuana (as they in fact were).

At trial, the judge concluded that the search warrant was improperly issued. She stated that the Information to Obtain the warrant was "carelessly drafted, materially misleading and factually incomplete." She emphasized that five statements in the ITO were misleading. The Court of Appeal disagreed with all of these: the Court felt that although the investigating officer had no formal training in recognizing grow-ops, his practical on-the-job knowledge meant that he could reasonably state that he was "trained," that an instance of referring to a wrong address was a typo rather than an attempt to mislead, that his testimony regarding the state of the lawn differing from his notes was not evidence to mislead, that he had in fact made no claim that he was an expert in thermal detection, and that his statement regarding potential electricity diversion could either be construed as belief or as a collection of facts which could contribute to that belief.

The trial judge was also critical of the investigator's use of anonymous sources, but the Court of Appeal did not see this as reason to invalidate the warrant either, pointing out that the anonymous sources had only prompted an initial informal investigation and that the cause for the ITO was the collected evidence rather than the source's tip.

Finally, the trial judge complained that the ITO did not expressly mention eleven specifically negative facts about the case: that there was no smell of marijuana, that they had not yet found grow-op equipment, that there was no hard evidence of electricity theft and that no suspicious activity had been observed. The Court of Appeal pointed out, however, that these were not facts but rather things that were not known, and that in most cases the absence of a reference to something not observed will "lead to the sensible inference that whatever it is was not seen, not heard or not done." The Court further stated that requiring a warrant applicant to anticipate and explain away in advance every possible aspect of a crime would be overly burdensome.

The Court also pointed out that in the investigator's testimony, he had explained that in his experience with investigating grow-ops, many of the negative factors that he had not included in the ITO were not present at other grow-ops: only rarely, for example, would you smell marijuana outside of the house or hear the whine of fans or blowers inside it from outside. Therefore the Court felt that there was little to nothing on the record to indicate that the "omissions" that the trial judge disliked would necessarily indicate the presence of a grow-op inside the residence. For all of these reasons, the Court of Appeal allowed the Crown's appeal, set aside the order quashing the warrant, and ordered a new trial. Read-the-whole-case rating: 3.
- Christopher Bird, Toronto
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