Happy Canada Day to all of you! The Court of Appeal released several decisions this week, most of them yesterday afternoon. Topics covered included jurisdiction and forum non conveniens in the context of defamation, crown wardship, wills and estates, municipal liability, wrongful dismissal and civil procedure. The most notable decision of the week was in the Trinity Western case in which the Court upheld the Law Society’s decision denying TWU’s application for accreditation as a law school.
Enjoy the long weekend!
[Simmons, Cronk and Pepall JJ.A.]
Paul Schabas and Emily Bala, for the appellants
William McDowell, Ren Bucholz and Julian Porter, Q.C., for the respondent
Keywords: Torts, Defamation, Libel, Civil Procedure, Jurisdiction Simpliciter, Real and Substantial Connection, Forum non Conveniens, Abuse of Process, Club Resorts Ltd. v. Van Breda
Facts: In November 2011, an Israeli newspaper, Haaretz, published an article criticizing the management practices of Mitchell Goldhar, the owner of the Maccabi Tel Aviv Football Club, a soccer team based in Tel Aviv, that plays in the Israeli Premier League. Goldhar is a prominent Canadian businessman and lives in Toronto. The article asserted that Goldhar imported his management model from his main business interest – a partnership with Walmart to operate shopping centers in Canada – and that he “runs his club down to every detail.” It also included a suggestion that his “managerial culture is based on overconcentration bordering on megalomania” and questioned whether “his penny pinching and lack of long term planning [could] doom the [soccer] team.”
In December 2011, Goldhar launched an action in Ontario, claiming damages for libel against Haaretz, its sports editor and the reporter who wrote the article (collectively “Haaretz”). Haaretz moved to stay the action, arguing that Ontario courts lack jurisdiction simpliciter or, alternatively, that Israel is a clearly more appropriate forum.
The motion judge dismissed Haaretz’s motion. He found that the article came to the attention of many of the 200 people in Goldhar’s Toronto office and that it is likely that 200-300 people in Canada read the article online. However, the motion judge directed that, if the action proceeds in Ontario, Goldhar’s claim is limited to damages for reputational harm suffered in Canada and that Goldhar shall pay for the travel and accommodation expenses for Haaretz’s witnesses at the rates provided in the Rules of Civil Procedure.
- Did the motion judge err in failing to find that, under the Van Breda test, Haaretz had rebutted the presumption of jurisdiction?
- In the alternative, if Ontario has jurisdiction, did the motion judge err in failing to find that Israel is a clearly more appropriate forum?
- In the further alternative, did the motion judge err in failing to stay the action as an abuse of process?
Holding: Appeal dismissed.
Reasoning (Simmons JA and Cronk JA):
- Haaretz did not dispute that Ontario readership established a tort committed in Ontario – one of the presumptive connecting factors under the “real and substantial connection” test for determining jurisdiction simpliciter. However, at the second stage of the Van Breda test, a defendant may rebut the presumption of jurisdiction by “establish[ing] facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”.
The subject matter of the article is not confined to a discussion of Goldhar’s business dealings in Israel or of the operation of Maccabi Tel Aviv. Rather, the article puts Goldhar’s Canadian connection front and center by acknowledging that he is a long distance operator and spends most of his time in Canada and by asserting that he imported his management model for Maccabi Tel Aviv from his main business interest, his Canadian shopping center partnership. The subject matter of the litigation is connected to Ontario largely because of the link drawn between the article and Goldhar’s Canadian business. As the motion judge observed when addressing forum non conveniens, it should not have come as a surprise to Haaretz that Goldhar would seek to vindicate his reputation here.
- The party seeking to displace Ontario’s jurisdiction bears the burden, in the forum non conveniens analysis, “to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum”. The motion judge was entitled to accept that reluctant foreign witnesses could be compelled to provide evidence in Israel through the use of letters of request and that videoconferencing was a potential means of obtaining the evidence of any witnesses unwilling to come to Ontario. These are available methods, under the Rules of Civil Procedure, for dealing with witnesses outside the jurisdiction.
The motion judge found that whether the lex loci delicti choice of law rule or a “most substantial harm to reputation” choice of law rule is applied, Ontario law applies to this case. Haaretz’s reliance on the extensive publication in Israel as evidencing harm to Goldhar’s reputation there is misplaced. Relying on the extent of publication as a decisive factor in assessing where a plaintiff has suffered the most substantial harm to his or her reputation does little more than turn the “most substantial harm” approach into a proxy for the “substantial publication” rule, which the Supreme Court rejected in Banro. The undertaking given by Goldhar in this case does not demonstrate that he is “forum shopping.” Rather, it confirms the significance to him of his reputation in Ontario and the importance to him of vindicating his reputation here.
- At this early stage of the litigation, and in the context of a defamation action where damage is presumed, it is not an abuse of the court’s process to allow Goldhar to attempt to vindicate his reputation in the place where he lives and has long carried on a successful business.
Dissent (Peppall JA)
The motion judge incorrectly concluded that the distinction between Ontario and Israel was slight. Not only will it be difficult to compel the attendance of Israeli witnesses, the motion judge disregarded the fact that the witness list was predominately the defendant’s. His description, findings and conclusion were unreasonable and his decision is therefore not entitled to deference in this regard.
In discussing choice of law, the motion judge also did not consider that, as pleaded, the tort occurred in both Ontario and in Israel. Secondly, while harm may be presumed, there was no evidence of substantial harm to Goldhar’s reputation in Ontario. Thirdly, the motion judge did not consider the principle of comity. As such, when the issue of forum non conveniens is considered anew, the relevant factors lead to the inevitable conclusion that the appellants have established that Israel is clearly the more appropriate forum. Additionally, such an outcome is in the interests of justice.
[Rouleau, van Rensburg and Benotto JJ.A]
S. Moreau, for the appellant
D. Girlando, for the respondent
Keywords: Endorsement, Employment Law, Wrongful Dismissal, Employment Standards Act
The appellant’s claim for salary in lieu of notice was denied because the motion judge held that the employment contract signed by the parties limited the appellant’s entitlement on termination to the minimum provided under the Employment Standards Act.
(1) Did the motion judge err in translating the relevant clause to read the employer has a right to terminate employment on providing the minimum under the Act as opposed to the minimum notice under the Act?
(2) Is this clause unenforceable for reason of ousting the operation of the Act and the common law?
(1) Yes. However this translation did not wrongfully influence the decision. Despite the translation, the reasons for the judgment make it clear that he understood that the section referred to notice, and not all of the requirements of the Act.
(2) No. The motion judge’s interpretation of the contract found that there was no intent to contract out of the Act. To the contrary, the intent to apply the Act is manifest. The motion judge’s interpretation of the contract is entitled to deference.
[Rouleau, van Rensburg and Benotto JJ.A]
Glenn P. Bogue, for the moving parties
Pasquale Santini for the respondent Children’s Aid Society of Ottawa
Domenico Polla, for the Attorney General of Ontario on behalf of the Honourable Justice Mark P. Shelston
Keywords: Endorsement, Motions, Leave to Appeal, Crown Wardship, Child Protection, Delgamuukw v British Columbia,  3 SCR 1010, Aboriginal and Metis Issues
Moving party seeks to review the order dismissing their motion to expedite the hearing of two leave to appeal motions. The moving party maintains that, as Aboriginal people, pursuant to Delgamuukw v British Columbia, they have a right to have matters of concern to them brought forward in a court of equity. They argue that the proceedings that have been brought should not be tried under the Courts of Justice Act, but by a chancellor sitting in a court of equity in which common law and statutes do not apply. Further, they argue that Ontario and the Children’s Aid Society have no authority to apprehend children of Aboriginal origin.
- Do the courts have authority in deciding child wardship issues with respect to Aboriginal children?
Holding: Motion Dismissed.
- The Supreme Court’s decision in Delgamuukw does not stand for the broad proposition argued by the moving party.
Appeal Book Endorsement
[Rouleau, van Rensburg and Benotto JJ.A.]
David F. O’Connor and J. Adam Dewar, for the moving parties
Anthony Tibbs, for the responding party
Keywords: Endorsement, Jurisdiction, Motion to Quash
[MacPherson, Cronk and Pardu JJ.A.]
- W. Staley, D. J. Bell and R. K. Agarwal, for the appellants
- J. Pratte, N. Effendi and D. Ault, for the respondent
- D. Chipeur, Q.C. and G. Mackintosh, for the intervener the Seventh- day Adventist Church in Canada
- C. Santoro and J. Tong, for the intervener the Justice Centre for Constitutional Freedoms
- Polizogopoulos, for the interveners the Evangelical Fellowship of Canada and Christian Higher Education Canada
- M. Schutten, for the intervener the Association for Reformed Political Action (ARPA) Canada
- B.M. Ross and J. R. Sikkema, for the intervener the Christian Legal Fellowship
- Edwardh, F. Mahon and P. J. Saguil, for the interveners Out on Bay Street and OUTlaws
- Beddoes, for the intervener the Canadian Secular Alliance
- Ursel and D. Grossman, for the intervener the Canadian Bar Association
- Magrath, for the intervener Lawyers’ Rights Watch Canada
- L.W. D’Silva and A. Urbanski, for the intervener the Canadian Civil Liberties Association
- Paliare and J. Radbord, for the intervener the Advocates’ Society
- Norris, for the intervener the Criminal Lawyers’ Association (Ontario)
Keywords: Administrative Law, Regulated Professions, Lawyers, Judicial Review, Standard of Review, Reasonableness, Constitutional Law, Canadian Charter of Rights and Freedoms, s. 2(a), Freedom of Religion, s. 15, Equality, Law Society Act, s. 4.1, s. 4.2
Trinity Western University (“TWU”) is a longstanding, respected private university in British Columbia. Its mandate is anchored in an underlying evangelical Christian philosophy. Part of its religious philosophy includes a strong opposition to same-sex relationships and marriages, and common law relationships outside marriage. TWU wants to establish a law school. Although members of the lesbian, gay, bisexual, transgender and queer (“LGBTQ”) community may apply to the proposed law school, they will not be admitted unless they are willing to sign and adhere to TWU’s Community Covenant, which forbids sexual intimacy except between married heterosexual couples. The consequence is that LGBTQ students are discriminated against in terms of admission to, and life at, TWU. TWU, on the other hand, says that its Community Covenant is protected by its right to freedom of religion. TWU wants to be sure that its graduates will be eligible to be called to the bar throughout Canada, and so it has applied to the provincial law societies, including the Law Society of Upper Canada (“LSUC”), for accreditation of its proposed law school.
In Ontario, by virtue of a 28-21 vote on April 24, 2014, the benchers of the LSUC denied accreditation to TWU’s proposed law school. TWU sought judicial review of this decision. In reasons released on July 2, 2015, a three-judge panel of the Divisional Court dismissed the application for judicial review. TWU appeals from the Divisional Court decision. The crux of the appeal involves a collision between freedom of religion and equality, both of which are protected in the Canadian Charter of Rights and Freedoms, enacted by the Canada Act 1982 (U.K.), c.11.
(1) Is the decision of the Supreme Court of Canada in TWU 2001 determinative of this appeal?
(2) Was the Divisional Court correct in applying a reasonableness standard of review?
(3) Applying the relevant standard of review, did the Divisional Court err in:
- its interpretation of the LSUC’s statutory mandate in ss. 4.1 and 4.2 of the Law Society Act, R.S.O. 1990, c. L.8 (“LSA”); and
- its conclusion that the LSUC engaged in a proportionate balancing of freedom of religion and equality and made a reasonable decision by refusing to accredit TWU’s proposed law school?
Holding: Appeal dismissed.
(1) No. The Divisional Court correctly stated, at para. 60, “[t]he issue raised before the Supreme Court of Canada in [TWU 2001] involved different facts, a different statutory regime, and a fundamentally different question.” Additionally, the regulator’s argument in this case is different than the argument addressed by the Supreme Court in TWU 2001. The British Columbia College of Teachers denied accreditation on the basis that the Community Covenant might affect TWU graduates’ ability to teach in public schools in a non-discriminatory manner, whereas LSUC argues that it is not in the public interest to accredit a law school that prevents access through a discriminatory policy.
(2) Yes. The reasonableness standard has been adopted as the presumptive standard of review to be applied with respect to the decisions of professional regulatory bodies engaged in an interpretation of their enabling statutes, including those that regulate the legal profession. The fact that the LSUC’s decision in this case required a careful analysis and balancing of the appellants’ Charter rights with other Charter values does not remove the standard of review from the reasonableness category. LSUC’s accreditation decision, which took into account Charter rights and values, was within the LSUC’s expertise. Additionally, there is no true question of jurisdiction here. LSUC’s decision not to accredit TWU fell squarely within its statutory mandate to act in the public interest. For this reason as well, no general question of law of central importance and outside the LSUC’s specialized area of expertise arises in this case.
(3)(a) No. Although LSUC’s decision infringes Mr. Volkenant’s (potential TWU student) and TWU’s right to freedom of religion under s. 2(a) of the Charter, it was entirely appropriate for the LSUC to consider the objectives of the LSA, informed by the values found in the Charter and HRC, when deciding whether to accredit TWU. After TWU applied to the LSUC for accreditation of its proposed law school, the LSUC commissioned a legal opinion from Ms. Kristjanson, a senior and respected constitutional and administrative lawyer, now a judge of the Superior Court. In a comprehensive letter, Ms. Kristjanson discussed the relationship between ss. 4.1 and 4.2 of the LSA. Her advice included an analysis of the interpretation of the term “public interest” in the context of those provisions. The Court of Appeal agreed with Ms. Kristjanson’s analysis and the Divisional Court’s conclusion. There is no wall between ss. 4.1 and 4.2 of the LSA. The LSUC has an obligation to govern the legal profession in the public interest: see Groia v. Law Society of Upper Canada, 2016 ONCA 471, at para. 89. In setting and maintaining standards of learning, professional competence and professional conduct under s. 4.1 of the LSA, the LSUC is entitled to do so against the backdrop of the composition of the legal profession, including the desirable goal of promoting a diverse profession. It follows that one of the LSUC’s statutory objectives is to ensure the quality of those who practise law in Ontario. Quality is based on merit, and merit excludes discriminatory classifications.
(3)(b) No. Taking account of the extent of the impact on TWU’s freedom of religion and the LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s s. 2(a) right under the Charter and the LSUC’s statutory objectives. While TWU may find it more difficult to operate its law school absent accreditation by the LSUC, the LSUC’s decision does not prevent it from doing so. Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objectives. The Court of Appeal found that the process adopted by the LSUC to consider TWU’s application was excellent.
[Sharpe, LaForme and van Rensburg JJ.A.]
Chris G. Paliare and Tina H. Lie, for the appellant
Mark Charron and Stephanie Doucet, for the respondent
Lawrence Greenspon and Marisa Victor, for the interveners
Keywords: Torts, Negligence, Municipal Liability, Duty of Care, Anns Test, By-law Enforcement, Standard of Review, Palpable and Overriding Error
Facts: The Plaintiffs were injured in a motor vehicle accident involving a taxi. The Township of North-Grenville had enacted a by-law requiring taxi companies to carry $1,000,000 in third-party liability insurance. The taxi company, Aces Taxi, was underinsured and had only $200,000 in coverage at the time of the accident. Aces Taxi provided proof that it carried the required $1,000,000 liability insurance when it applied for and obtained its taxi licence in 2005. The insurer cancelled this coverage for non-payment, and notified the Township of the cancellation in January 2006. Aces Taxi obtained a new policy, which only provided $200,000 in coverage for third-party liability. Aces Taxi completed a taxi licence application in February 2006 containing a signed declaration that no information had been withheld and that, if licensed, Aces Taxi would comply with all applicable by-law provisions. The Township had only one bylaw enforcement officer, who was busy with other duties and, with the approval of his superiors, did not process taxi licence applications that year. In January 2008, Aces Taxi submitted a renewal application with a standard signed declaration stating again that it would abide by all relevant by-laws. With that application, Aces Taxi submitted a pink slip issued by the same insurer that had provided $1,000,000 of coverage in 2005. The pink slip did not indicate the level of coverage.
The trial judge found that, although the Township owed the interveners a duty of care, the Township did not fall below the standard of care in enforcing the Bylaw. The trial judge found that the Township had met the standard of care when it issued a licence to Aces Taxi in 2005 as a certificate of $1,000,000 coverage had been provided. He found that Aces Taxi had either been untruthful or negligent when declaring that there were no significant changes affecting its ability to hold a license after ceasing to carry $1,000,000 of insurance coverage. The insurer appealed, arguing that the trial judge erred in finding that the Township did not fall below the standard of care.
(1) Did the Township owe the interveners a private law duty of care?
(2) Did the trial judge err in finding that the Township did not fall below the standard of care?
(3) Should the court determine that the Township’s negligence was the cause of the interveners’ losses?
Holding: Appeal dismissed with costs.
(1) No. The trial judge erred in finding that the Township owed the interveners a private law duty of care. This determination is made by applying the Anns/Cooper test. No recognized duty of care exists. The Township did not contest that failing to enforce the bylaw resulted in reasonably foreseeable harm to the interveners due to a motor vehicle accident with an underinsured taxi.
The Township was not in a proximate relationship with the interveners. By enacting the by-law, the Township established a general standard to benefit the public as a whole, but is not liable for losses caused by the failure to follow legislation. A licencing authority should not be held liable for economic losses arising from the negligent conduct of non-compliant third-party licensees. A public authority administering a licencing scheme owes a general duty to the public at large to ensure compliance with the regulatory scheme, but this does not rise to the standard of a private law duty of care. No prima facie duty of care existed.
The court also found that there were residual policy considerations that warranted negating the imposition of a duty of care. The law already provides a remedy in this instance, as the injured plaintiffs have the benefit of the standard OPCF 44R Family Protection Coverage endorsement. Recognizing a duty in this instance would also impose a significant burden on small municipalities.
(2) No. The standard of review in this case was palpable and overriding error. The trial judge’s determination that the Township met the standard of care is a question of mixed fact and law that attracts deference on appeal. The Township did not grant the licence to Aces Taxi without any proof of insurance as required. The trial judge’s reasons indicate that he was fully aware of the facts and circumstances relating to Aces Taxi’s insurance coverage, including the fact that the Township is a small municipality with limited resources to devote to bylaw enforcement. The trial judge recognized that there were shortcomings in the Township’s approach, and his conclusion that these shortcomings were not unreasonable or in bad faith attracts deference.
(3) No. The order directing the trial of the third-party claims did not provide for the interveners’ participation at trial. The issue of causation was not raised at trial and the interveners should not be permitted to raise it at this stage. It would be unfair to consider the issue in the abstract without the benefit of evidence and argument before the trial court. Had the appeal been allowed, the interveners could have advanced the causation issue at trial.
Scott C. Hutchinson and Matthew R. Gourlay, for the applicants
Nancy Dennison, for the respondent
Keywords: Criminal Law, Mutual Legal Assistance in Criminal Matters, Sending Order, Fraud, Bad Faith
[Simmons, Pepall and van Rensburg JJ.A.]
Ondrej Sabo, for the appellants
Lou-Anne F. Farrell, for the respondents
Keywords: Wills & Estates, Estate Trustees,, Costs, Entitlement to Reimbursement from Estate
This action involves a familial dispute over an estate. The parties to this estate action are five of the six children of the deceased mother. The six children are the residual beneficiaries under the mother’s will. The two appellants are the estate trustees of their mother’s estate and attorneys pursuant to a power of attorney granted to them by their mother.
In August 2008, the three respondents commenced an application against the appellants in which they sought the appellants’ removal as estate trustees, a passing of accounts, and an order that the appellants repay to their mother’s estate amounts found to have been improperly taken or, alternatively, pay damages for breach of fiduciary duty.
The action was settled shortly before the commencement of the trial in 2014. However, the parties were unable to agree on the costs of the action. They agreed that entitlement of the parties to costs was to be determined by the court.
The motion judge concluded that the settlement of the substantive issues in dispute between the parties reflected divided success. The motion judge found that the estate trustees did not adequately address reasonable questions of the applicants and failed to fulfill simple undertakings on cross-examination. Despite this, she stated that she could not conclude that one party was more successful than the other and these were not circumstances where a “loser” should pay. She was satisfied that the appropriate order was that each party be responsible for their own costs.
The appellants successfully sought leave to appeal the costs order.
Did the motion judge err in finding that, as estate trustees, the appellants were responsible for their own costs?
No. The court found that subject to the discretion of the court, the general rules governing an estate trustee’s ability to recover legal costs from an estate are as follows:
(a) an estate trustee is entitled to indemnification from the estate for all reasonably incurred legal costs;
(b) if an estate trustee acts unreasonably or in his or her own self-interest, he or she is not entitled to indemnification from the estate; and
(c) if an estate trustee recovers a portion of his or her costs from another person or party, he or she is entitled to indemnification from the estate for the remaining reasonably incurred costs.
The court denied the appellants indemnification from the estate on the grounds of both unreasonableness and self-interest. The court found the parties’ dispute centred on a need for the appellants to make disclosure, and that their failure to be forthcoming resulted in elevated costs for all parties. Although prior cost awards addressed some of the appellants’ conduct, the appellants’ behaviour is fairly characterized as unreasonable.
Moreover, the conduct under scrutiny, and the appellants’ failure to exhibit timely candour, related for the most part to conduct that pointed to an aggrandizement of their personal holdings at the expense of the estate and the other residual beneficiaries. In substance, their dilatory conduct served to protect their own interests, not those of the estate.
Due to the forgoing, the court held that the appellants are not entitled to their recovery of costs from the estate in this case.
[Rouleau, van Rensburg and Benotto JJ.A.]
P. Anisman, for the appellants
M Greenglass, for the respondent
Keywords: Endorsement, Trusts, Certainty of Intention
E3m was an investment dealer registered with the Ontario Securities Commission. The appellants were former clients of e3m. In April 2013 the appellants had obtained a judgment against e3m of approximately $750,000. In February 2015, e3m made an assignment in bankruptcy. In its statement of affairs, it recorded cash of $546,837, substantially all of which was in an Accumulating Account as per the direction of Ontario Securities Commission.
Did the motion judge err in finding that the funds in the Accumulating Account were not trust funds belonging to the appellants because the test of certainty of intention failed?
No. The Ontario Securities Commission’s position on this issue was ambiguous. Although the direction of the OSC included an obligation to “accumulate and maintain” assets to satisfy the appellant’s earlier judgment, the ultimate entitlement to the funds of that account was not addressed. Further, the OSC was able to permit funds in the account to be used for essentially any purpose it might deem appropriate within their regulatory mandate. This fact is fundamentally inconsistent with an intention to create a trust in favour of the appellants.
[Simmons, LaForme and Huscroft JJ.A.]
Jeffery S. Leon and Gannon G. Beaulne, for the appellant Levinter & Levinter LLP
R.P. Quance and D. Waldman, for the respondents Zahira Sheikh by her Litigation Guardian, Ahmed Hussein Sheikh, Ahmen Hussein Sheikh, Lubna Sheikh, Saleh Omer Sheikh, Yasmeen Sheikh and Himelfarb Proszanski LLP
Keywords: Civil Procedure, Rules of Civil Procedure, Rule 59.06, Rule 37.14, Approval of Settlements, Costs as Between Solicitor and Client, Parties Under Disability, Setting Aside Orders
Levinter & Levinter LLP (“Levinter”) acted as counsel for the personal respondents in this personal injury action for many years. The solicitor client relationship broke down and Levinter obtained judgement against the personal respondents for $206,000 for legal fees and disbursements. Himelfarb Proszanski LLP (“Himelfarb”) took over conduct of the personal injury action. The parties applied under Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for approval of a proposed settlement. Approval was required because two of the personal respondents are under a disability. The Judge did not approve and instead recommended Levinter receive $102,500. He disapproved of the $206,000 judgement because all of the problems with the care for Ms. Sheikh and misuse of her money arose on Levinter’s watch. However, the judge stipulated that if all parties and law firms did not agree on the resolution he proposed the settlement would not be approved. The Appellants did not approve of this amount. After some back and forth communication between the parties, the respondent obtained a “partial judgement” for the amount of $102,500 signed by the settlement judge, the Appellants did not consent to the seeking of this order, although they were aware of it.
A year later, the Appellants moved under rule 59.06(2)(c) to enforce the initial judgement of $206,000, they also requested an order under s.34(4) of the Solicitors Act, holding Himelfarb jointly and severely liable for that amount. The motion judge dismissed the motion on the grounds that rule 59.06(2)(c) does not authorize a Superior Court judge to determine which of two subsisting Superior Court orders is correct.
Rule 59.06(2)(c) provides: “A party who seeks to…carry an order into operation…may make a motion in the proceeding for the relief claimed.”
On appeal the Appellants also request relief under rule 37.14. 37.14(2) provides that on a motion the court can vary or set aside an order on “such terms that are just”
- Can Levinter have the settlement Judge’s order varied to reflect the initial $206,000 judgement?
- Can Levinter have the settlement judge’s order varied under rule 37.14?
Holding: Appeal Dismissed.
- Where the rules contemplate that an existing order may be set aside or varied other than by way of an appeal, they say so explicitly (e.g., rule 37.14(2)). In order for the motions judge to carry the variance request into operation, the judge would be required to choose between conflicting orders of the Superior Court and would have to invalidate a subsisting order of that court. The authority to make this decision is not provided in rule 59.06(2)(c).
- Granting relief under rule 37.14 is discretionary; however, a person seeking relief must proceed with dispatch. A significant delay could mitigate against granting relief. This is particularly true in cases involving final orders. It is notable that the settlement judge’s reasons stated that the settlement would not be approved without both parties’ consent. However, the Appellant did not bring in the rule 37.14 motion to the motions judge, nor did they cross-examine the lawyer who obtained the consent from the settlement judge about how they were able to obtain settlement absent Levinter’s consent. There is therefore a lack of proper record and the Appellants appeal fails. The judge does note that if a proper record was available the fact that settlement was obtained absent Levinter’s consent might have permitted the rule 37.14 motion to succeed. This may have constituted evidence of misconduct on the side of the Respondent law firm, and might have entitled the Appellants to have the order set aside.
[Doherty, Epstein and Miller JJ.A.]
- Du Vernet and C. McGoogan, for the appellant
- D. Coetzee, for the respondent
Keywords: Employment Law, Wrongful Dismissal, Damages, Payment in Lieu of Notice, Bardal Factors, Ontario Human Rights Code, Section 46.1, Intentional Infliction of Mental Suffering, Aggravated Damages, Punitive Damages
In October 2010, Ms. Strudwick suddenly became completely deaf. While the cause is uncertain, her doctors believe it was a virus. Almost immediately after Ms. Strudwick became deaf, Mr. Hoffman (General Manager of Applied Consumer), together with Ms. Strudwick’s immediate supervisor, Liz Camilleri, commenced a campaign of abuse against Ms. Strudwick designed to force her resignation. In summary, in addition to publically belittling, harassing and isolating Ms. Strudwick in ways relating to her disability, Applied Consumer not only denied Ms. Strudwick any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear. The culmination of this abuse came on May 27, 2011 when Mr. Hoffman fired Ms. Strudwick for a “stunt [she] had [allegedly] pulled” at a company event. By this time, Ms. Strudwick had worked for Applied Consumer for over 15 years. Ms. Strudwick sued Applied Consumer. The motion judge granted judgment in favour of Ms. Strudwick in the aggregate amount of $113,782.79, including pre-judgment interest, plus $40,000 in costs. Ms. Strudwick appeals the damages assessment on the basis that, given Applied Consumer’s extraordinarily egregious conduct, the motion judge erred by assessing damages that were simply too low.
(1) Did the trial judge err in his assessment of damages within the various categories below?
- Damages for Wrongful Dismissal;
- Restitution under s. 46.1 of the Ontario Human Rights Code;
- Intentional Infliction of Mental Suffering;
- Aggravated Damages; and
- Punitive Damages
Holdings: Appeal allowed.
(1) Yes. The award is increased from approximately $180,000 to $246,049.92
(a) No. In determining what constitutes reasonable notice of termination the courts have generally applied the principles articulated in Bardal; known as the Bardal factors. The reasonableness of the notice is decided on a case by case basis, having regard to the character of employment, the length of the service, the age of the servant, and the availability of similar employment (Having regard to the experience training and qualification of the servant). This Court has rejected the argument that there should be an upper limit to notice periods in wrongful dismissal cases. The motion judge correctly applied these principles. While the Appellant submits that, due to her advanced age, the notice period should be extended until she would reach the age of 65 (125 months), the purpose of the determination of reasonable notice is to provide reasonable compensation until the plaintiff might find another Job. The employer does not guarantee employment to retirement, and therefore the 24 month period is sufficient.
(b) Yes. The purpose of damages under this section of the Code are not designed to punish the employer but rather remedy the effects of discrimination (Lane v ADGA Group Consultants Inc. (2008), 91, O.R. (3d) 649). Although the court in Lane dealt with what was then s. 41(1) of the Code, the principle is applicable to the present section 46.1. Although damages are not punitive, the quantum cannot be too low, the social importance of the Code must be recognized and to set a low floor would effectively create a licencing fee to discriminate. While the motion judge correctly took into account the Employer’s conduct, he failed to take into account the impact of the discrimination on Ms. Strudwick. The effect was profound and prolonged, the victimization not only prevented accommodation but increased difficulty. As a consequence this court must intervene.
There is no cap to damages. Similar cases should be examined to determine the appropriate quantum of damages. Due to the severity of the humiliation suffered by Ms. Studwick, an award of $40,000 is appropriate.
(c) Yes. In order to establish the tort of intentional infliction of mental suffering the Defendant’s conduct must have been flagrant and outrageous, and calculated to harm the plaintiff and it must have caused the plaintiff to suffer a visible and provable illness. The motion judge erred in failing to consider the increased costs of therapy due to the need of a sign language interpreter, further he failed to consider non-pecuniary damages. Damages should be increased by $11,310 to account for the interpreter and an additional $5,000 to address pain and suffering. The total damages for this tort being increased to $35,294.
(d) Yes. The motion judge failed to award aggravated damages on the grounds that this would result in double recovery, as the motion judge had already considered the egregious nature of the Defendant’s conduct under other headings. Although there is some overlap between this heading and the Code violation, the wrongful dismissal, and the intentional infliction of mental suffering, the level of bad faith was extreme. Therefore the motion judge erred in ruling that there was a complete overlap. Ms. Strudwick was confronted in front of 13 employees and called a “goddam fool,” the company had prepared various paperwork to deprive her of legal rights, the company withheld her pay. Placing this conduct in the realm of comparable cases Ms. Strudwick is entitled to $70,000, however $8,400.18 will be deducted to prevent overlap.
(e) Yes. Damages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to addresst wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. They can only be awarded where compensatory damages are insufficient. The motions judge was in error in two respects. First, he viewed the employer’s failure to try and conceal the misconduct as mitigating the company’s level of blameworthiness. Second, he over-emphasized the impact of a damage award on the company, absent evidence of the company’s financial situation. With regard to similar decisions and the amount already awarded, $55,000 is a reasonable punitive damages award.
[MacPherson, Simmons and Lauwers JJ.A.]
Hari Nesathurai and Glen M. Perinot, for the appellant Sukhwinderjit Singh Nagra
Joel E. Levitt, for the respondent Sanjay Verma
Keywords: Endorsement, Partnerships, Real Property
Criminal Law Decisions
[Doherty, Epstein and van Rensburg JJ.A.]
Jonathan Dawe, for the appellant
Melissa Adams, for the respondent
Keywords: Criminal Law, First Degree Murder, Armed Robbery, Circumstantial Evidence, Eyewitness Identification
[Pepall, Tulloch and Pardu JJ.A.]
Cate Martell, for the appellant
Jessica Smith Joy, for the respondent
Keywords: Endorsement, Criminal Law, Certiorari
[Hoy A.C.J.O., Laskin and Hourigan JJ.A.]
Ariel Herscovitch, for the appellant Dirie
Mark Halfyard and Breana Vandebeek, for the appellant Omar
Brock Jones, for the respondent
Keywords: Endorsement, Criminal Law, Firearms Offences, Search and Seizure, Warrants
[Doherty, Feldman and Brown JJ.A.]
Amber Pashuk, for the appellant
Yoni S. Rahamim, for the respondent
Keywords: Criminal Law, Drug-Related Charges, Unlawful Police Entry, New Trial
[Juriansz, Watt and Roberts JJ.A.]
John Norris, Breese Davis and Owen Goddard, for the appellant
Alexander Hrybinsky, for the respondent
Keywords: Criminal Law, Firearm Offences, Search and Seizure, Warrants
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