Ontario Employment Law: Contractual Entitlement to Notice and the Question of Mitigation

In Bowes v. Goss Power Products Ltd., decided May 25, 2012, the Court of Appeal for Ontario was faced with an interesting question of law:

Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fix term of notice or pay in lieu of notice?

In the case, the employee, Peter Bowes had entered into a written contract of employment with Goss Power Products Ltd, which provided that he would receive six months' notice or pay in lieu thereof if his employment was terminated without case. The contract was silent as to any duty on his part to mitigate his damages in the event of a termination without cause. As it happened, only two weeks following the date of termination, Mr. Bowes was lucky enough to secure comparable employment at the same salary he had been earning with Goss.  

The employer took the position that even though the contract was silent as to any obligation on Mr. Bowes to mitigate his damages, he had an implied obligation to do so and had effectively mitigated most of his damages by obtaining this new position. Therefore, the employer argued it did not have to pay Mr. Bowes anymore than

In answering "no" to the question set out above, the Court noted that a contractually fixed term of notice is distinguishable from common law reasonable notice where a duty to mitigate is an implied term of the employment relationship. In this regard, Winkler C.J.O. stated:

When parties contract for a specified period of notice or pay in lieu thereof they are choosing to opt out of the common law approach applied in Bardal. In doing so, the parties should not be take as simply attempting to replicate common law reasonable notice.

Winkler C.J.O. continued:

In my view, there is nothing unfair about requiring employers to be explicit if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages. In fact, what is unfair is for an employer to agree upon a fixed amount of damages, and then, at the point of dismissal, inform the employee that future earnings will be deducted from the fixed amount. 

This decision illustrates that where a contract specifies the period of notice, or pay in lieu thereof, which an employee will be entitled upon a termination on a without cause basis, courts will not presume a term requiring the dismissed employee to mitigate its damages.

If you believe that you have been wrongfully dismissed, please contact a lawyer who can advise you as to your rights and entitlements.

- Robert Tanha, Toronto

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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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This Week at the Ontario Court of Appeal: 11-10-14

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

Ireland v. Ireland

This case involved a mother's resistance to the enforcement of a foreign custody order. The Superior Court of Fulton Country in the State of Georgia granted sole legal custody of the parties' children to the respondent father. The appellant failed to attend the Georgia Court but she was given an opportunity to participate via Skype. However, Tuscon J. stated that the appellant neglected to locate a computer to access Skype.  As a result,  she failed to present any evidence establishing that awarding her sole legal and physical custody of her children would be in their best interests.

The following month, the appellant filed an application in the Ontario Superior Court of Justice for custody of the parties' children, child support and a restraining order.  Her position was that the children would suffer serious harm if they were returned to the respondent because they had allegedly previously been subject to physical and emotional abuse during the parties' relationship. The respondent moved to have the order of Tuscon J. of the Georgia Court recognized and enforced in Ontario pursuant to s.41 of the Children's Law Reform Act. The appellant applied for and was granted an adjournment on March 24, 2011 until April 7, 2011, to the motion in order to give her time to retain counsel. During the intervening period, the appellant applied to the Superior Court for another adjournment on the basis that she wanted to change the venue of the hearing from Oshawa to Toronto, which was rejected by the court. 

The motion proceeded on April 7, 2011 and Ferguson J. enforced the Georgia Court's order. The mother was ordered to surrender the parties' children to the father. The mother subsequently appealed Ferguson J.'s enforcement of the Georgia Court's order and her decision not to allow her to present viva voce evidence during the aforementioned motion.

The Court denied the appellant's request for an order that she be permitted to request various organizations to provide her with copies of all documents relating to her, the respondent, or their children. The Court noted that the appellant failed to request the documents at the appropriate stage in the proceeding and her litigation tactics unnecessarily expanded and slowed the proceedings. Moreover, if the Court permitted the documents, the appellant would have to make a fresh evidence application to have them admitted on the appeal.  The Court held that the documents would not meet the test for the introduction of fresh evidence on appeal, set out in R v Palmer.

The Court granted the respondent's motion for security of costs and ordered the appellant to pay the respondent $10,000.00 in costs, holding that her appeal was devoid of any merit and noting her pattern of delaying and expanding litigation.

Canadian Broadcasting Corporation v. Ontario

The Canadian Broadcasting Corporation ("CBC") had applied to the Superior Court for an order granting it access to a video that was entered as an exhibit at the 2008 bail hearing of the appellant Ishak Omar.  The Ontario Court of Justice had custody of the video. The application judge granted CBC access to the video on the condition that it would obscure Mr. Omar's identity in any subsequent use of the video. Mr. Omar appealed the order.

The CBC moved to quash the appeal on the basis that the Court had no jurisdiction and that Mr. Omar's appeal is to the Supreme Court of Canada with leave from that court pursuant to the Supreme Court Act. The appellant submitted that the appropriate forum for this appeal was the Ontario Court of appeal under s.6(1) of the Courts of Justice Act.

The Court dismissed the respondent's motion to quash the appeal. The Court's jurisdiction to hear the appeal turned on the characterization of the proceedings before the application judge. If the appeal was civil in nature then the Court of Appeal has proper jurisdiction.  However, if the proceeding was characterized as criminal, the appellant's only route is to the Supreme Court of Canada with leave of that court. Counsel for the respondents argued that the video came into possession of the Ontario Court of Justice in the course of a criminal proceeding and that this application was treated as a criminal matter in the Superior Court.  The appellant characterized the proceedings as civil, as the CBC sought access to his property. In rejecting the respondent's arguments, the Court noted that that the order under appeal was not made in the course of a criminal proceeding and had no effect on any ongoing criminal proceeding. Moreover, the Court stated that the appellant's fair trial rights were no longer at play and that the order under appeal did not rescind or vary any order made in the appellant's criminal proceedings which concluded in 2009.  Therefore, the Court concluded that the appeal was properly brought to the Court of Appeal pursuant to s. 6(1) of the Courts Justice Act.

Donley Investments Limited v. Canril Corporation

The appellants, Canril Corporation, appealed a judgment of the Superior Court of Justice holding it liable in negligence and nuisance for water damage caused to the neighbouring basement of the respondent Donley Investments Limited.  The appellants submitted that the trial judge erred both law and in fact.  The Court agreed with the appellant's position and set aside the trial judgment and ordered a new trial.

The Court of Appeal held that the trial judge made three significant legal errors. The first  occurred when the trial judge erroneously shifted the burden of proof onto the plaintiffs to rebut the presumption of negligence when in fact there was no scientific confirmation of causation that water flowed from the appellants' building to the respondent's premises.

The Court found that the  trial judge made a further, substantial legal error when she held that the appellants had owed a duty to the respondents to join them in their claim against the City for the water infiltration that occurred in February 2003. Both the appellants and respondents' buildings were infiltrated with water as a result of an open city water main. The appellants made a claim against the City for the damage to their basement and suggested that the respondent follow suit.  The respondent failed to adhere to the appellant's request.  The Court stated that they did not see any legal basis for the trial judge's imposition of a duty to assert its claim.

Additionally, the appeal court ruled that  the trial judge erred in her causation analysis. There was no scientific evidence establishing a causal link between the damage to the respondent's building and any wrong committed by the appellants.  The trial judge made no reference to the "but for" test for causation in her reasons for judgment. Instead, the trial judge applied a more lenient test for causation applied in Athey v. Leonati. The Court asserted that the trial judge's omission in applying the standard "but for" test for causation was not justified.

- Alim Ramji, Toronto

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This Week At The Ontario Court of Appeal: 11-09-27

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.  Commencing this week, Alim Ramji, a student-at-law with Wise Law Office, takes over the Court of Appeal beat. 

Beck v Beckett

The appellant, Brenda Beck appealed the judgment of Magda J. concerning child and spousal support under the Family Law Act, R.S.O. 1990.

Issues raised by the appellant:

1. The amount of income imputed to the respondent, Daniel Beckett
2. Entitlement to Child Support and Spousal Support
3. The trial judge's decision to refuse to make an order for lump sum spousal support
4. Leave to appeal the costs order made by the trial judge

Background

The appellant and respondent commenced living together in 1984. The parties were never married, but this was a traditional relationship.  They had two children together ages 21, and 19.  When their children were born, the appellant left her job at Woolco look after them.  The family's primary source of income was the respondent's full-time employment at General Motors (GM).  The parties separated in September 2006.

The respondent's annual income from General Motor's was approximately $73,000.00 and he had accrued a substantial pension of approximately $400,000.00 during the period of the parties' relationship.

A significant point of contention in this appeal was the respondent's decision to take voluntary retirement from GM in April 2007 at the age of 49.  The respondent received a severance package in the sum of $70,000.00.  He chose not to pursue further employment opportunities and instead decided to live off his pension benefits.

In October 2008, the parties sold their house for $480,000.00 and the appellant received $125,000.00 from that amount.  After the parties' sold their house, the respondent continued to not pay child or spousal support and discontinued paying the home expenses. The respondent's share from the house remained in trust pending the outcome of this proceeding.

The trial was scheduled to commence in May 2009 but was adjourned at the request of the respondent.  Roswell J. ordered that the respondent pay child support in the amount of $666.00 per month based on an imputed income of $73,000.00.

In 2010, the appellant's income was $48,118.00 and the respondent was earning $41,768.00 from his pension.

Law & Analysis of Key Issues:

Imputed Income

If the respondent were laid off, his income would drop below what he would be entitled to receive from his pension if he decided to take the retirement package that was offered by GM.  The trial judge accepted the respondent's evidence concerning these risks. He held that some income must be imputed to the respondent since he made no attempt to find any employment to supplement his pension income.  Some factors that were considered was that he was 53 years old with a Grade 10 education. Thus, the trial judge imputed an income of $19,760.00 per year for minimum wage work. Coupled with the respondent's pension income, this brought his total income to $61,528.00.

The appellant submitted that the trial judge erred in only imputing income to the respondent on the basis of minimum wage skilled employment.  During trial, the parties failed to adduce evidence about employment prospects in the Oshawa area.

The Court of Appeal found that the appellant's own evidence tended to support the trial judge's conclusion.  The only employment opportunities that the she was aware that might suit the respondent were mainly minimum wage positions. Therefore, the Court decided not to vary the order of the trial judge.

Child and Spousal Support

The trial judge found that the respondent was entitled to child support in the amount of $570.00 per month, but no spousal support was awarded because the appellant had 54.7% of the parties' net disposable income at that time. 

In regard to the parties' youngest child, the trial judge found that he lived with the respondent for 21 months from May 2007 to March 18, 2009. Therefore, the respondent was entitled to be credited for child support he should have received from the appellant in the amount of $7,438.00.  Taking into account the amount of child support that the respondent failed to pay for the months of April and May 2009, the respondent was to be credited with a net amount of $6,208.00. In its review of the trial judge's decision, the Court found that the trial judge failed to take into account that the older son was living with the appellant for the entire time post-separation and that both children lived with the appellant for some periods of time.

The Court of Appeal noted that the respondent failed to make any child support payments ($666.00 per month) in accordance with the the trial judge's order. The Court ordered that the respondent pay these child support payments out of the funds currently held in trust before the funds were to released to the respondent.

The trial judge declared that the appellant could apply for spousal support once the respondent was no longer obligated to pay child support for the youngest child.  The youngest child no longer was a dependent as of November 2010.  Thus, the Appeal Court varied the judgment to eliminate the order for child support and replaced it with an order for spousal support at the rate of $433.00 per month (mid range of the Spousal Support Advisory Guidelines). The spousal support award, retroactive to November 2010, was also to be paid from the trust funds.

Lump Sum Support Award

The appellant argued that there was a real risk that the respondent would not comply with an award of periodic support payment.  One reason for this belief was that the respondent did not pay a costs order made by Roswell J.  Secondly, he did not make any child support payments ordered by the trial judge. The trial judge refused to make a lump sum payment.  Reference was made to Davis v. Crawford, where in discussing the suitability of a lump sum payment, the Court noted that,

One important consideration is whether the payor has the ability to make a lump sum payment without undermining the payor's future self-sufficiency.  

The Court in Davis also stated that most spousal support orders will be in the form of periodic payments but a lump sum award can supplement an award of periodic support.

The Court of Appeal held that the unpaid costs order was relatively small and the respondent had otherwise complied with  previous court orders. The Court also found that once the respondent was permitted to gain access to the funds in trust, it is reasonable to believe that enforcing a periodic support order would not be an issue.

Costs

The trial judge found the respondent was successful on the appellant's claim for lump sum spousal support and his claim for retroactive child support for their youngest child.  Moreover, the trial judge felt the appellant's position on imputing income in the amount of $73,000.00 per year was "patently unrealistic" and "inappropriate". The respondent was awarded costs in the amount of $15,000.00.

The Court of Appeal found the trial judge's characterization of the appellant's position to be an error in principle and stated that it should not have been a factor in fixing costs of the trial.  Therefore, the Court  granted leave to appeal the costs award and reversed the costs Order, holding that the parties were to bear their own costs of the trial.

Disposition

Rosenberg J.A. allowed the appeal in part as follows:

1. The order of child support was to be terminated as of November 30, 2010;
2. The respondent was to pay to the appellant spousal support as of December 1, 2010 in the amount of   $433 per month;
3. Term 4 of the Order requiring the appellant to pay child support arrears was deleted;
4. Term 9 of the Order was varied to require that arrears of child support and spousal support payable by the respondent was to be paid out of monies held in trust before the funds were released to the respondent

- Alim Ramji, Toronto

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This Week At The Ontario Court of Appeal: 11-07-22

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

Aguas v. Rivard Estate. A personal injury case where the appellant, Ms. Aguas, was suing the estate of Mr. Rivard for damages arising from a motor vehicle accident involving both herself and the late Mr. Rivard in 2001. The Registrar issued an administrative dismissal of the action in 2007 due to what it considered inexplicable litigation delay, as within two years of the filing of the statement of defence Ms. Aguas had neither set the matter down for trial or obtained an order following a status hearing to prevent administrative dismissal. Ms. Aguas brought a motion to set aside the dismissal.

The motion judge refused to set aside the dismissal, stating that Ms. Aguas had not brought "any reason whatsoever" as to why the matter had progressed so slowly; he also noted that, despite an eight-month delay in the proceedings having been caused by an order of dismissal being sent to the wrong solicitor, that the 17-month delay afterward was not adequately explained.

The Court of Appeal allowed the appeal and set aside the dismissal. They noted that discoveries had been held prior to the dismisal of the action, and that a second accident where Ms. Aguas has been involved and subsequently launched a separate civil suit had both impacted and complicated the original action. They also noted that the motion judge had characterized counsel's failure to respond to a letter advising them of the dismissal as negligence in file management rather than inadvertence, but the Court held that given Ms. Aguas' change in lawyers this was not a fair characterization. The Court finally pointed out that the respondents' conduct and conduct of their counsel did not support actual prejudice or reliance on finality.

Justice Juriansz dissented in the decision. He suggested that Justice Rosenberg, authoring the decision, had taken a fresh view of facts by recognizing that the respondents had realized that counsel for the appellant had erred, which was information not available to the motion judge. He concluded the fact that discoveries were conducted was not enough to prevent a finding of litigation delay given a 20-month delay from the appellant's discovery to its continuation. He further concluded that the argument that the second accident complicated matters was not for the Court to consider as it had not been advanced at the motion hearing, and was of the view that the appellants did not sufficiently demonstrate how the second accident had impacted the first action to accept it as a consideration. For these reasons he concluded the Court had not given the motion judge's decision sufficient deference. Read-the-whole-case rating: 2.

Rondel v. Robinson Estate. Dr. Rondel and the late Ms. Robinson had been friends prior to, late in Ms. Robinson's life, having a relationship together. This happened while Ms. Robinson's husband - who was institionalized with Alzheimer's - was still alive. In 2002, Ms. Robinson drafted a will in her native Spain which was meant to deal with her European property, which alloted her property (both real property and monies) in Europe to her sisters and further left a life interest in a London apartment to Dr. Rondel. This will made clear that a second will existed for property outside of Europe. In 2005, Ms. Robinson's husband died, and she instructed her solicitor to draft a new, third will dealing with "the entire residue" of her estate, which made no reference to the European property will and notably left nothing to her sisters. Finally, shortly after learning that she had an inoperable brain tumour in 2006, she contacted her solicitor again and requested that her third will be redrafted to leave Dr. Rondel a bequest of $1 million.

She died approximately three months later, and her lawyer, acting as executor, began distributing the contents of her Canadian assets in accordance with her final will, unaware that Ms. Robinson had had European assets or had drafted a will specifically dealing with those assets. Her lawyer learned of the Spanish will only when he was alerted that the English courts would not allow the Spanish will to come to probate if the Canadian will was not rectified to make clear that it had not been revoked. Dr. Rondel and the lawyer then brought applications firstly for advice and direction regarding interpretation of the will, and secondly for an order deleting the revocation clause and adding the phrase "other than property dealt with by [the Spanish will]" to the general disposition clause. The applications were supported by affidavits which restated that Ms. Robinson never intended to revoke her Spanish will. However, the application judge followed the common law, which states that evidence of testator's mistake alone is not sufficient for a court to rectify a will when there is no evidence of ambuiguity or drafting error. Dr. Rondel and Ms. Robinson's lawyer both appealed their applications.

The Court of Appeal dismissed the appeals. They noted that the application judge had stated "If a testator’s intent could be determined simply by third party affidavits, I would find, based primarily on Dr. Rondel’s affidavit, that the testator never intended to revoke the Spanish Will," then stressed the "if" and the "would" to point out that the application judge had not made a choice to not do so but instead had merely stated a hypothetical possibility for the purpose of illustrating his larger point that he was unable to do so. The Court concluded that the affidavits made Ms. Robinson's purpose clear: she had requested that her new will deal with "the entire residue of [her] estate" and had reviewed and approved the will before signing it.

For good reasons, stated the Court, the evidence of disappointed beneficiaries and third parties is not and cannot be as probative of testator's intentions as their own clear directions in their wills. Read-the-whole-case rating: 3. A good explanation of why estate law works the way it does in this instance.

Elgner v. Elgner. An appeal on an interim spousal support order in a family law case. Mr. Elgner was 63, Ms. Elgner 62, and were married for 33 years before separating, having had three children (all now grown). Mr. Elgner was ordered to pay Ms. Elgner interim spousal support of $110,000 per month and retroactive spousal support of $3,360,000 for a period of twenty-three months. Mr. Elgner wished to appeal, and moved to file a notice of appeal as of right or, if leave to appeal was required, that leave be granted. The Divisional Court dismissed his motion, and Mr. Elgner then moved for a review of the Divisional Court order dismissing the part of his motion permitting him to appeal as of right. A panel of the Divisional Court dismissed that motion. Mr. Elgner then appealed to the Court of Appeal, arguing that he was entitled to appeal the interim order as of right and that leave to appeal was not required.

Mr. Elgner's argument was that the Divorce Act gives right of appeal for all orders, interim and final, made under it, and that since the Divorce Act is federal legislation it therefore is paramount over Ontario's Courts of Justice Act, which requires leave to appeal from interlocutory orders of the Superior Court of Justice. The Divisional Court's first order followedKral v. Kral, wherein the Divisional Court had previously stated that according to the Divorce Act itself, appeals on Divorce Act orders were to follow the ordinary procedure governing appeals. The Divisional Court panel offered two opinions in concurring dissent: the majority, agreeing with the first order of the Court, and a second which stated that although he felt the panel was bound by Kral, that he had to express reservations about Kral's correctness, as he compared it to decisions in other provinces which had stated that in those provinces leave to appeal was not required for interim orders under the Divorce Act.

The Court of Appeal pointed out that Mr. Elgner's argument was based on s.21(1) of the Divorce Act ("an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act") but that he had failed to address s.21(6) ("Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed"), which mandates that the appeal right granted by the Divorce Act must be asserted in accordance with a province's standard regulation of appeals (as the Court stated that a plain reading made clear). The Court also dismissed Mr. Elgner's argument that a right of appeal was a substantive right rather than a procedural one on the basis that a leave to appeal requirement for interim orders in divorces did not make a final determination on each party's rights and obligations: matters dealt with by an interim order would more properly be decided at trial, and therefore a leave to appeal requirement was not a substantive harm in this instance. Accordingly, the Court dismissed the appeal. Read-the-whole-case rating: 3. A bit dry, but this is a somewhat novel issue and the Court's disposition of it is likely to stand for some time.

Rasouli v.Sunnybrook Health Sciences Centre. Mr. Rasouli was represented by his wife as litigation guardian; he had been hospitalized at Sunnybrook for surgery to remove a brain tumour, but post-operative complications led to him developing bacterial meningitis, and the infection eventually caused severe brain damage, forcing him to be put on a ventilator and be fed through a tube in order to be kept alive. The appellants in this case were two doctors at Sunnybrook, who were responsible for Mr. Rasouli's treatment and care, and who - along with many other doctors - had concluded that he was in a permanent vegetative state. They had suggested to Ms. Rasouli's wife that they withdraw care and allow him to pass on; she refused in the hopes that he would recover. Due to this conflict, both the doctors and Ms. Rasouli's wife sought relief from the courts, she applying for orders to restrain the doctors and they cross-applying for declarations as to Mr. Rasouli's medical condition and that they did not require her condition to withhold care. The application judge found for Mr. Rasouli's wife.

The doctors appealed. Their argument was that the decision set a precedent that forces doctors to obtain consent of patients before withholding or withdrawing treatment they considered to be of no medical value. They made clear that they did not argue that doctors can do anything other than act in their patients' best interests; their argument was that the order effectively required them to provide treatment they believed to be medically ineffective or inappropriate. They also argued that "treatment," under the Health Care Consent Act, did not include the withholding or withdrawal of treatment that was of no medical value to the patient and could therefore be done without the patient's consent.

The Court of Appeal disagreed and dismissed the appeal. The Court first noted that, although the policy concerns of the decision were real, as the appellants had not raised the issue of resources being drained by intensive care units as a result of the decision, they would not consider fiscal issues in analyzing the decision. They then went to the Act and pointed out, as the application judge had, that the definition of "treatment" includes "a plan of treatment," and that a "plan of treatment" itself is defined to include withdrawal of treatment. Although the Court took pains to point out that they thought it unlikely that the legislature intended to protect treatment physicians considered to be of no medical value, and were willing to at least consider whether doctors were required to obtain consent to withdraw treatment in such circumstances, in this instance they declined to answer the question because the Court found it unnecessary to do so.

Justice Moldaver explained that palliative care certainly fell within the definition of "treatment" and therefore required the consent of the patient or his designated caregiver. They also noted that, by the appellants' own admission, no responsible medical practitioner would refuse to begin palliative care for a patient once he was removed from life-sustaining machinery or equipment. Therefore, although removing Mr. Rasouli from his ventilator and feeding tubes could possibly be construed as not being "treatment," the immediately following palliative care leading to his death must be considered treatment and therefore would require consent. Therefore consent was required, albeit not directly for the withdrawal of treatment, but required nonetheless.Read-the-whole-case rating: 3 for a decision that's a good example of the Court of Appeal taking pains to not rule on a contentious and divisive issue they would prefer to leave to the Legislature.

- Christopher Bird, Toronto

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Ontario Court of Appeal: No Hard Cap on Notice Entitlement of Non-Managerial or Unskilled Employees

In Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, a decision of the Ontario Court of Appeal released June 22, 2011, the appellant, Crown Metal Packaging ("CMP") appealed from an October, 2010 decision of the Superior Court Judge, Justice Beth A. Allen, granting the respondent, Mr. Di Tomaso summary judgement in a wrongful dismissal action under rule 20.

Background:

Mr. Di Tomaso was an employee of CMP for over 33 years as a mechanic and press maintainer. On September 23 2009, Mr. Di Tomaso was informed that his services were no longer required at CMP. However, just before Mr. Di Tomaso had left, he was notified that his employment would be extended by several weeks. In fact, CMP in total issued 5 different termination dates, which in effect extended Mr. Di Tomaso's employment just before each previous termination date. Extension letters were delivered by CMP, as follows:

• 1. September 9, 2009, with a termination date of November 6, 2009;
• 2. November 4, 2009, with a termination date of December 18, 2009;
• 3. December 15, 2009, with a termination date of February 19, 2010;
• 4. February 18, 2010, with a termination date of February 26, 2010; and
• 5. February 24, 2010, confirming the termination date of February 26, 2010

Claims by Mr. Di Tomaso:

Mr. Di Tomaso's action claimed that CMP failed to provide reasonable notice or termination pay as required by the Employment Standards Act, 2000 ("ESA"). He also sought common law damages for wrongful dismissal equivalent to 24 months pay.

CMP's Position:

The employer claimed that its first notice of termination (September 9, 2009) was valid, and alleged that Mr. Di Tomaso's subsequent employment constituted "working notice".

Concerning the Plaintiff's common law claim, CMP's position was that at most, Mr. Di Tomaso was entitled to 12 months notice, based on the character of his employment. CMP emphasized that Mr. Di Tomaso was an "unskilled" and "low level worker".

Motion Judge's Reasoning:

On the issue of working notice, the motion judge reviewed the ESA regulation that authorizes an employer to count a period of work commenced after the termination is served but before the termination date (temporary employment)- compared to an employee's statutory notice of entitlement: Termination and Severance of Employment, O. Reg. 288/01, s. 6 ("Regulation"). For instance, the Regulation states:

6. (1) An employer who has given an employee notice of termination in accordance with the Act and the regulations may provide temporary work to the employee without providing a further notice of termination in respect of the day on which the employee’s employment is finally terminated if that day occurs not later than 13 weeks after the termination date specified in the original notice.

(2) The provision of temporary work to an employee in the circumstances described in subsection (1) does not affect the termination date as specified in the notice of the employee's period of employment.

CMP was of the view that all of its extensions was valid, as each was for a period of less than 13 weeks. Therefore, it claimed, Mr. Di Tomaso was provided with working notice up until the last notice of termination dated February 24, 2010. Mr. Di Tomaso argued to the contrary, stating that various period of extensions should be viewed cumulatively which would exceed the 13 week period set out in s. 6(1) of the Regulation.

In agreeing with Mr. Di Tomaso's position, the motion judge stated:

... The legislation clearly allows for notices temporarily extending termination if the final date of termination in respect of the extension is not more than 13 weeks after the date of the initial termination notice. That interpretation makes practical sense since there would be no certainty for an employee as to when his employment would finally end if the employer was not limited in the length of extensions of employment. (para 19).

Furthermore, the motion judge stated that there is a requirement that the notice of termination be "clear and unequivocal".

The motion judge also rejected CMP's position that Mr. Di Tomaso's entitlement to notice was capped at 12 months due to the non-managerial and unskilled nature of his position.. The motion judge referred to factors in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.) ("Bardal"), to determine the appropriate notice period. The Bardal factors include: the character of the employment, the employee's length of service, the employee's age, and the availability of comparable employment in the market.

In order to support its position concerning a capped limit of entitlement to notice at 12 months, CMP relied on the court's ruling in Cronk v. Canadian General Insurance Co. 1995 CanLii 814 (ON CAN), (1995), 128 D.L.R. (4th) 147 (“Cronk”). The employer contended that the Cronk ruling establishes a capped limit of 12 months notice for clerical and unskilled workers.

Mr. Di Tomaso relied on the more recent case of Minott v. O’Shanter Development Company Ltd. 1999 CanLII 3836 (ON CA), (1999), 168 D.L.R. (4th) 270 (“Minott”) to counter the argument that there is a cap of 12 months. Specifically, Laskin J.A. stated in Minott:

I do not regard this court's decision in Cronk as establishing an upper limit of 12 months notice for all non- managerial or non-supervisory employees. At most it deals with one occupational category, clerical employees. Moreover, the imposition of an arbitrary 12 months ceiling for all non-managerial employees detracts from the flexibility of the Bardal test and restricts the ability of courts to take account of all factors relevant to each case and of changing social and economic conditions.

Motion Judge's Findings on Notice:

The motion judge agreed that there is not a hard cap of 12 months notice. Additionally, after considering the Bardal factors, the judge held that Mr. Di Tomaso was entitled to 22 months of notice.

Mr. Di Tomaso was 62 years old on the date of his termination and had served 33 years with CMP. He also made efforts to mitigate his damages by looking for other employment in the work force.

Issues on Appeal:

The employer argued on appeal that the motion judge erred in finding that Mr. Di Tomaso did not have clear and unequivocal notice of termination until February 24, 2010; and that Mr. Di Tomaso received reasonable working notice of termination in light of his status as a non-managerial employee.

MacPherson J.A. did not accept either argument for the following reasons:

Termination Date

MacPherson J.A agreed with the motion judge that the Regulation takes into account a single period of temporary work that cannot exceed 13 weeks.

In addition, he added that "clear and unambiguous" notice of termination must incorporate the final termination date. The first four termination dates came and passed. It was not until the final termination notice on February 24, 2010 that Mr. Di Tomaso's termination was carried out as stated in the letter.

Bardal Factors

MacPherson J.A. agreed that there is not a hard cap of 12 months notice for unskilled low level workers. He also agreed with the motion judge's application of the Bardal factors to the instant case.

The appeal judge also stated that giving more weight to the particular factor of character of employment was unwarranted. MacPherson cited Bastarache J in the Supreme Court decision of Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362, where he asserted that "no one Bardal factor should be given disproportionate weight".

MacPherson J.A. noted that the proposition that junior lower skilled workers deserve less notice because they have an easier time finding employment has not been empirically proven.

Disposition:

The appeal was dismissed with costs to the employee/Respondent..

- Alim Ramji, Toronto

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This Week At The Ontario Court of Appeal: 11-06-09

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

Ontario (Labour) v. Black & McDonald Limited. An appeal from an Ontario Court of Justice trial where charges laid under the Occupational Health and Safety Act were dismissed and the Crown then appealed, and appealed again when the first appeal failed.

Black & McDonald was hired as a subcontractor to construct concrete pipe in underground trenches. In the process of doing so, they constructed a wooden framework to pull pipe sections into place. One day, a piece of the wooden framework snapped and struck a worker in the head, killing him. The Crown charged Black & McDonald with five counts of violating the OHSA: failing as a constructor to ensure that a project was designed to support and resist all loads and forces to which it is likely to be subjected, failing as a constructor to ensure that every employee and worker complied with OHSA standards, failing as a constructor to take every precaution possible for the protection of a worker, failing as an employer to ensure that a project was designed to support and resist all loads and forces, and failing as an employer to take every precaution possible for the protection of a worker.

At trial, the judge dismissed the first, second and fourth counts for being "duplicitious," "disingenuous," "convoluted," and that "in some instances barely discloses an offence." The Crown appealed to the Superior Court, where the Superior Court judge agreed with the trial judge and further overturned the convictions on the third and fifth counts. The Crown appealed again.

The Court of Appeal set aside the dismissals and ordered a new trial. They stated that the trial judge had confused a duplicitous count (one that joins separate and distinct offences in the same count) with a duplicative count (one that overlaps another distinct count). The Court stated unequivocally that a single incident could obviously give rise to multiple offences. The Court also felt that the counts were drafted precisely enough that the defendant corporation knew the charges against it, and noted that the defendant did not ask for further particulars than it was provided.

Finally, the Court stated that the trial judge did not have discretion to outright reduce the number of counts, as he had attempted to do, as the employer standard of conduct and the constructor standard of conduct were two different standards and therefore overlapped but were not duplicative. They further noted that under the common law, even if the multiple counts were duplicative, the end result could not be an acquittal but instead only a conditional stay. Read-the-whole-case rating: 2.

R. v. Soules. Mr. Soules was involved in a four-car accident. During police questioning after the accident, the constable believed that Mr. Soules might have been impaired, and when he subsequently made an approved screening device demand, Mr. Soules failed his breath check test and was arrested for operating a vehicle while impaired.

Mr. Soules was summarily acquitted on the basis that his statements while being investigated by the constable were compelled and inadmissible, and in the absence of those statements there was no reasonable suspicion for the approved screening device demand. The trial judge also held that the breath results would further have been excluded on the basis that Mr. Soules did not receive a Prosper warning. The Crown appealed; the summary conviction appeal judge upheld the acquittal. The Crown appealed again.

The Court of Appeal granted leave to appeal the summary conviction on the basis that the case raised important questions of law about the police-driver relationship and whether Charter rights demanded reinterpretation, and also on the Crown's contention that the ruling, as it stood, had the potential to "cripple the investigation of drinking and driving offences where a collision has occurred."

The Court considered this case in light of the decisions in R. v. Powers and R. v. White, two impaired-driving cases where, following a collision, a driver had thought he reasonably was compelled to report the accident and details thereof, and as a result provided inadmissible information to a police officer. The Crown, seeking to distinguish this case from those precedents, cited R. v. Thomsen, an impaired-driving case where a motorist's participation in an ASD test was viewed as admissible to support an officer's breath demand. However, Justice LaForme disagreed with this comparison, specifically suggesting that Powers was the proper precedent because Thomsen was a situation that did not involve a compelled answer by the motorist. The Court therefore dismissed the appeal on the grounds that Mr. Soules' testimony was inadmissible due to his s.7 Charter rights against self-incrimination. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto

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This Week At The Ontario Court of Appeal: 11-06-03

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

Maccaroni v. Kelly. An appeal of a summary judgment in an Ontario personal injury case where the appellant, Ms. Maccaroni, was rear-ended in a vehicular collision with Mr. Kelly. Mr. Kelly was insured by Co-operators General Insurance, while Ms. Maccaroni was insured by ING. Ms. Maccaroni sued Mr. Kelly. Co-operators, added itself as a third party and took the position that it was not liable to Mr. Kelly, who was driving with a suspended license, and that it was only liable to Ms. Maccaroni for $200,000 under the Insurance Act. As a result of this position, ING faced liability to Ms. Maccaroni for additional coverage where the tortfeasor was underinsured, to a limit of an additional $1,000,000.

Ms. Maccaroni settled with Mr. Kelly and Co-operators for the $200,000, a settlement to which ING did not consent, signed a release, and then sought to recover additional monies from ING. In response, ING moved for summary judgement on the basis that there was no issue for trial, since there had never been a legal determination of Co-operators' position and therefore their reduced limit had no basis in "operation of law," and further that there could no be no determination of that fact as Ms. Maccaroni had released both Co-operators and Mr. Kelly from the action. The motion judge accepted this argument and dismissed the case.

The Court of Appeal overturned the motion. Justice McFarlane stated that it was now incumbent upon the appellants, rather than ING, to demonstrate Co-operators' position. The fact that Co-operators and Mr. Kelly were no longer parties to the action was thus irrelevant as they could be called as witnesses. The Court also noted that there was precedent for an individual pursuing action against his or her own insurer under a similar (but not identical) fact scenario as found in this case. Read-the-whole-case rating: 2.

A.M.R.I. v. K.E.R. An appeal on an application on the Hague Convention on the Civil Aspects of International Child Abduction, the first in the Court of Appeal's history. A divorced couple had a child. The mother lived in Cancun, Mexico and the father in Toronto. The girl came to Canada to visit her father accompanied by her maternal grandmother. During the visit, the girl and her grandmother told her father that her mother was abusing her. As a result, the girl did not return to Mexico, but instead stayed with her father. She was found to be a refugee by the Immigration and Refugee Board of Canada, by reason of abuse. Shortly thereafter her father was denied refugee status and moved to Norway; the girl continued to live in Ontario with her aunt and her aunt's same-sex partner.

A year and a half later, the girl's mother brought a Hague Convention application for an order compelling her daughter's return to Mexico. Before the father's time to respond expired, the mother arranged for a hearing date without providing notice to her daughter or to her daughter's aunts. The father claimed he also did not receive timely notice of this hearing. The hearing proceeded on an uncontested basis, and the application judge found that the girl was being wrongfully retained in Ontario. She was removed one month later from her school with police assistance. The girl was at this time 14. She was not allowed to return home to retrieve her refugee papers despite asking to do so, was not allowed to communicate with her aunts, and was flown to Mexico in the care of her mother. The father appealed the application judge's decision.

The Court set aside the order and directed a new hearing. The Court first noted that the mandatory return requirements of the Hague Convention had limited exceptions, including exceptions where more than one year had elapsed and the child settled into their new environment, where the return would place the child at risk of harm and where the child was mature enough to object to returning. The Court also noted that the principle of non-refoulement - that a recognized refugee should not be returned to a territory where they would be at risk of harm - was paramount to refugee protection schemes, and recognized in s.115(1) of the Immigration and Refugee Protection Act.

The appellants charged that s.115(1) of the IRPA, by recognizing the principle of non-refoulement, had the effect of granting that principle paramountcy under Canadian law and that therefore s.46 of the Children's Law Reform Act, which incorporates the Hague Convention into Ontario law, was void under the doctrine of paramountcy.

(Normally the Court of Appeal would not rule on constitutional issues first raised on appeal, but in this case, stated that the interests of justice demanded it, due to the improperly non-contested nature of the original hearing.)

The Court of Appeal rejected the paramountcy argument, arguing that due to Canada's commitment to the Vienna Convention on the Law of Treaties, Canada's international treaty commitments are to be interpreted in good faith regarding existing international law. Canada's commitment to the Hague convention must be taken into account as one in conformance with its commitment to the United Nations Refugee Convention, as the latter predates the former. Therefore, the CLRA does not violate the paramountcy doctrine, but must instead be interpreted consistently with Canada's treaty obligations regarding refugees.

The Court interpreted this obligation under existing law, along with Canada's treaty obligations under the United Nations Convention on the Rights of the Child, by suggesting that, where a child with refugee status as determined by the Immigration and Refugee Board is targeted by a Hague Convention application, "a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence." The Court also suggested that in this context, there should be no burden on the child to prove that the conditions which created refugee status have since changed.

Having determined that the CLRA did not violate the doctrine of federal paramountcy and articulated the test as to how the two laws should interact, the Court of Appeal then considered how this case should be decided on its merits.

The Court found that the one-side nature of the application hearing had harmed the proceeding's merit, and further found errors in the judge's reasoning. The Court stated that the judge had not adequately considered the child's refugee status or the exceptions to mandatory return laid out in the Hague Convention, even though the transcripts showed that the judge was at least aware of these concerns. The appellate court held further that the trial judge did not adequately consider affidavit materials which "cried out for a meaningful assessment of whether and to what extent the child faced a persisting risk of persecution if she was returned to Mexico," instead simply seeming to accept all of the mother's denials of abuse at face value. This failure to properly assess the child's risks in the course of the Hague Convention application constituted a violation of her rights under s.7 of the Charter of Rights and Freedoms.

For these reasons the Court found that the order of return was improper, but further noted that the case obviously satisfied multiple exceptions under the Hague Convention itself which the judge had also not considered. Finally, the Court held that the failure of the trial court to ensure that the child was present for the hearing violated her s.7 Charter rights and denied procedural fairness to her. Read-the-whole-case rating: 4. A major decision by the Court, and although lengthy it's very readable.

- Christopher Bird, Toronto

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