Constructive dismissal occurs when an employee is indirectly and effectively dismissed from the position or terms he/she had previously agreed formed the employment. Without the consent of the employee, a substantial alteration is presented that fundamentally changes the terms of the agreed upon contract. Hagholm v. Coerio Inc. represents a successful claim for constructive dismissal. The respondent had entered into her employment on the understanding that she could work from home three days a week. When this condition was changed, the respondent claimed constructive dismissal and ceased coming to work. The Motion Judge, on a motion for summary judgment, found that there was constructive dismissal because this was an essential term and the appellant arbitrarily withheld a bonus from the respondent. The Court of Appeal also confirmed that the respondent was not required to mitigate her damages for the appellant’s breach of contract in these circumstances. Also in this case, the … Read More
Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions
In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.
New Study Reveals Trends in Canadian Defamation Cases
A new study by a Canadian law professor analysed reported Canadian defamation lawsuit decisions between 1973-1983 and between 2003-2013. The results of the study revealed some interesting trends, including: in cases between 1973 and 1983, 53% of claims were successful. However, in cases between 2003-13, only 28% claims were successful. The study’s author suggests various theories for the decline in the success rate, including that courts are seeking to give greater protection to freedom of expression; during the 2003-13 period, plaintiffs were far more successful in cases involving “new media” (email or internet), with a 62% success rate (more than double the success rate for cases between 2003-13 considered as a whole). The study’s author suggests that the difference may be explained by the fact “new media” communications are less likely to be vetted and edited than publications in “old” media, and there may be better evidence of “new media” … Read More
David Alderson, Panelist on Law Society of Upper Canada Annotated Partnership Agreement 2015 CDP
David Alderson, of Gilbertson Davis LLP, will be a panelist at the Law Society of Upper Canada Continuing Professional Development program, The Annotated Partnership Agreement 2015, on September 29, 2015 (alternate date, November 20, 2015) on the panel entitled “Review of the Differences (Legal and Drafting) Between a Partnership and a Joint Venture – Understanding the Significant Consequences”. Moderator of the panel (and Chair of the program) is Alison Manzer, Cassels Brock & Blackwell LLP and co-panelist is Sunita Doobay, TaxChambers LLP. David Alderson, LL.B (Osgoode), LL.M (Lond.) is a commercial litigator with Toronto insurance and commercial litigation firm Gilbertson Davis LLP. He holds a Master of Laws degree in commercial and corporate law and has been admitted to practice in England & Wales, Bermuda and New York State, as well as Ontario. David has practised local law in England, Bermuda, Dubai and Ontario, in diverse business and commercial litigation practice … Read More
Andrew Ottaway Speaks on CityTV News About Defamation and Social Media
On March 5, 2015, Gillbertson Davis lawyer Andrew Ottaway appeared on CityTV News. Andrew was asked to speak about legal issues arising from defamatory statements on social media. The lawyers at Gilbertson Davis frequently comment on defamation issues, and can represent individuals or businesses in relation to online defamation issues.
A Proven Hypothesis: How Deguise v. Montminy helps us better understand Alie v. Bertrand
Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers. Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert evidence to show when damage actually started to occur, for the purpose of allocating insurer responsibility.* In other words, Deguise offered an opportunity to apply the ‘injury in fact theory’ of liability insurance coverage to facts proven by evidence, instead of legal conjecture. The decision, penned in French and applying civil law, has so far escaped the notice of the Bar in the rest of Canada. The Deguise court … Read More
Court Allows Equitable Rectification to Undo Transaction Which Had Caused Adverse Tax Consequences
In Fairmont Hotels Inc. et al v. A.G. Canada, the Applicants, Fairmont and affiliated companies (“Fairmont”), redeemed shares which Fairmont said mistakenly triggered a foreign exchange gain and tax assessment. Fairmont applied for rectification of the share redemption. The respondent, the Attorney General of Canada, opposed Fairmont’s application, which it characterized as retroactive tax planning. In brief, Fairmont had financed the purchase of two US hotels by Legacy, an investment trust, through reciprocal loans. Legacy routed the financing through Fairmont and a US Fairmont affiliate, which received preferred shares in a US affiliate. The financing was in US dollars, representing a potential foreign exchange tax exposure. Fairmont stated that it had structured the loan transaction to be accounting neutral to fully hedge its foreign exchange exposure. However, that intention was frustrated a some years later when another company purchased Fairmont, triggering deemed foreign exchange losses which could not be carried forward … Read More
Federal Court of Appeal Decision on Arrest of Sister Ships
In Westshore Terminals Limited Partnership v. Leo Ocean, S.A, the Federal Court of Appeal considered among other things whether the appellants could arrest the respondents’ ship and its sister ship as well. The offending ship had damaged the appellants’ port facilities while in port, causing an estimated $60 million in damages. The appellants commenced an action and arrested the ship. The appellants also insisted that they could arrest a sister ship of the offending ship to satisfy a judgment. Justice Nadon considered the Federal Courts Act, which gives the Federal Court jurisdiction to seize and sell offending ships (s. 43(2)) and ships which are “owned by the beneficial owner” of the offending ship – i.e. sister ships (s. 43(8)). Justice Nadon stated that the appellants, having arrested the offending ship (under s. 43(2)), were barred from seeking to arrest a sister ship (under s. 43(8)). If you require advice on transportation and marine claims, please contact us for an initial consultation.
Judge scolds feuding neighbours, refuses to grant legal remedies
Nasty and obnoxious rich people are “also” entitled to their day in court. If they cannot resolve their differences, the court is there to resolve it if the law provides a civil remedy, so that it does not escalate into criminal harassment or violence. It is not the duty of the judge to make fun of the litigants, and the cause of the rule of law is not advanced by doing so. In Morland-Jones v. Taerk, the Superior Court judge was not right to turn the litigants away in a derisive manner. From the perspective of the exercise of the public role of the court in explaining the law and diffusing conflict among citizens, the ruling can be criticized in three significant ways: The public was left guessing the precise relief the plaintiffs were seeking and the applicable procedural law, so as to leave the legal analysis a mystery. The court’s message … Read More
Court Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Advocacy Lessons from the Law Society of Upper Canada in re Trinity Western University
In the aftermath of yesterday’s historic debate before the Law Society of Upper Canada, in which the application of Trinity Western University for accreditation of a law degree was rejected 28-21, with one abstention, a number of colleagues asked me about the tactical considerations involved in this two-day process. TWU entered the second day of the Ontario debate buoyed by a 20-6 decision by the Law Society of British Columbia to grant accreditation. Those who followed the Ontario debate saw that TWU President Kuhn took the podium, instead of his appointed counsel. He led with various hurtful statements made about his University and about Christians, and suggested that to deny accreditation would be to validate such statements. He then asserted the right of the University to operate a law school. A Teaching Moment This event will, one day, appear in advocacy textbooks in chapters about cases about squandered opportunities. What made it a … Read More
Court of Appeal Rules Insurance Not Voided by Expired License
In Kozel v. The Personal Insurance Company, an Ontario driver had an automobile insurance policy with the appellant insurance company. The driver severely injured a motorcyclist in an automobile accident in Florida. The injured motorcyclist sued the Ontario driver. At the time of the accident, the driver was driving with an expired license, in breach of a statutory condition of her insurance policy. The driver asked the Court to order the insurance company to defend her against the motorcyclist’s lawsuit under the liability coverage of her automobile insurance policy. The insurance company refused to defend the driver because she was in breach of the policy. The Court of Appeal considered whether the driver should be excused from her breach of the policy. The Court considered whether to grant “relief from forfeiture” under section 98 of the Courts of Justice Act (which states that “A court may grant relief against penalties and forfeitures, on such terms … Read More
Gilbertson Davis Lawyer Represents Defence Bar in Ontario Trial Lawyers’ Standards Consultation
The Ontario Trial Lawyers Association (OTLA), the voice of plaintiffs’ personal injury lawyers in Ontario, is undergoing a process to develop best practices within its membership. This bold and commendable initiative, tentatively titled “Standards of Excellence for Conduct,” is intended to advance the interests of accident victims, by promoting better service and access to justice. Once OTLA’s review has been completed, the defence bar should also examine ways in which its members can contribute to more collegial and efficient civil litigation. Gilbertson Davis LLP’s partner Lee Akazaki has been appointed by the Canadian Defence Lawyers (CDL) to represent the defence bar in OTLA’s consultations as it develops this model code. As such, Lee has surveyed the CDL membership in Ontario and has started reviewing responses. At this point, the following themes have appeared as areas where interaction between plaintiff and defence counsel can be improved, in the interests of their respective clients: timely responses … Read More
Summary Judgment in Wrongful Dismissal Action in IT Sector
The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More