- Costa passengers offered $14,460 for ruined cruise, trauma
- India's 30-Year-Old Divorce Ends
- Rogers uses charter claim to fight truth-in-advertising law. - Montreal Gazette
- Police dog attack sparks Vancouver lawsuit
- Embattled Judge Refuses to Recuse Himself From Hearing Cases
- U.S. Judges Report Little Juror Misuse of Social Media
- Ontario Appeal Court upholds judge's decision to strike jury in auto injury trial over complexity of fibromyalgia
- Protesters demand family law reform - Sarnia Observer
- Lawyer Clayton Ruby wants Police Chief Bill Blair investigated over G20 arrest - Toronto Star
- Ontario Chief Justice Smith receives honourary doctorate from Law Society - Financial Post (blog)
- Facebook and Twitter Users: The FBI Is Watching You
- Judge Orders Arizona Candidate Struck From Ballot - for inadequate knowledge of English
- Tragic accident or honour killing? Family's fate will soon rest with jury - Vancouver Sun
- Ottawa drops plan for national securities regulator - Globe and Mail
- Dad Gets Protection Order Against 4th-Grader, Calls Child’s Alleged Threats a Serious School Issue
Friday, January 27, 2012
140 Law - Legal Headlines for Friday, January 27, 2012
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Friday, January 27, 2012
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Thursday, January 26, 2012
140 Law - Legal Headlines for Thursday, January 26, 2012
- Legal setback for Ontario aboriginals taken from their families during the “Sixties Scoop”
- Gingrich claims marital infidelity makes him ‘more normal’ | The Raw Story
- Info czars tell Tories to place 'integrity' at heart of information reforms
- Jury Awards $22 Million to Pre-trial Detainee For Inhumane Treatment
- Apple’s iPad and the Human Costs for Workers in China
- Blatchford: Family honour 'is why they are dead,' Crown tells court
- Judge Accused of Keeping Money Raised for Courthouse Ten Commandments Display - ABA Journal
- Apple again loses Dutch bid for Samsung tablet ban | The Raw Story
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Thursday, January 26, 2012
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Wednesday, January 25, 2012
140 Law - Legal Headlines for Wednesday, January 25, 2012
- Apple again loses Dutch bid for Samsung tablet ban | The Raw Story
- MegaUpload-type shutdowns could kill the Cloud Storage model
- English Court Jails Juror Who Used Internet Search - Slaw
- Minnesota appeals court remands same-sex marriage lawsuit
- Ontario court hears trucker’s challenge of speed-limiter law: Land Line Magazine
- Lawyer wants question cop about excessive force during G20 | Canada | News | Edmonton Sun
- Megaupload founder denied bail (CNN)
- Court rejects bid by wife of sex killer to keep divorce proceedings from public
- Law society pursues Vancouver lawyer for allegedly breaching his 'duty of loyalty'
- Sears Canada cuts 400 Employees, many in Toronto
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Wednesday, January 25, 2012
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Tuesday, January 24, 2012
140 Law - Legal Headlines from Wise Law on Twitter
- Ontario fears federal crime bill will cost it $1B
- Canadian Privacy Commissioner Report on privacy tackles airport security
- Are judges appointed for political ties?
- Anonymous Creates MegaUpload Replacement
- UN rights chief: Charge or release Gitmo detainees
- Mix of articles, practical training seems to be popular option
- Rogers violating federal net neutrality rules, CRTC says
- Judge says Obama must appear in ‘birther’ suit | The Raw Story
- Federal Judge orders Colorado woman to give up password to hard drive
- Reactions to Jones v. U.S. GPS case: The government fared much better than everyone realizes SCOTUSblog
- Hinckley hearing focuses on whether he has interest in books on assassination
- Punched By a Cop: Disciplinary Action or Lawsuit? Issue Estoppel: Penner v. Niagara (Police Services Board)
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Tuesday, January 24, 2012
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Monday, January 23, 2012
140 Law - Legal Headlines for January 23, 2012
- Analysis of the MegaUpload Indictment - TalkLeft
- Balsillie, Lazaridis out as co-CEOs at RIM | CTV News
- Ontario unlikely to meet court delay reduction targets | CTV News
- Athletic therapist claimed she was fired by Toronto Argos because she’s a woman - http://thestar.com
- Maher defends SOPA, calls piracy ‘Caucasian looting’ | The Raw Story
- JURIST - Paper Chase: Federal appeals court strikes New Mexico sex offender library ban
- Man marries corpse, posts to YouTube
- Facebook, http://Timelines.com to settle, or continue battle in 2013 - ZDNet (blog)
- LSAC reports applications to law schools are down more than 15%
- Ontario Bad Employers List for October 2011 from Minister of Labour | Doorey's Workplace Law Blog
- Crime to Have a Racist WiFi Network Name?
- The Kangaroo Court of Wall Street | The Big Picture
- Online activists triumphant as Congress buries anti-piracy bills (Brendan Sasso/The Hill)
- Apple settles with Toronto lawyer over stolen MacBook Pro (commenters not impressed) - The Loop
- Should parents lose custody of super obese kids?
- Charges stayed in 2009 fatal stage collapse in Alberta
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Monday, January 23, 2012
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Friday, January 20, 2012
140 Law - Legal Headlines for Friday, January 20, 2012
- Supreme Court Overturns 'Right v. Wrong' | The Onion
- Charge G20 officers, police watchdog orders - Toronto - CBC News
- Occupy Wall Street: Protesters To Demonstrate Outside Courthouses
- Tresspass notice given to Occupy protesters at Toronto Superior Court/LSUC location (via Omar HaRedeye)
- Miami Federal Jury Says TD Bank Must Pay $67M to Investors Swindled by Ex-Attorney Scott Rothstein
- Appeal Court: No forced abortion for mentally ill Massachusetts woman
- British police make arrest over Saddam’s bronze buttock
- Mandatory retirement ends for Canada's federally regulated employers in December 2012
- Anonymous strikes back after feds shut alleged piracy hub Megaupload
- Merck to pay millions to settle Vioxx lawsuits in Canada | CTV News
- US Department of Justice Charges Leaders of Megaupload with Widespread Online Copyright Infringement
- Convicted man returns Brampton Court 7 years later to thank judge who gave him 'second chance'
- Supreme Court of Canada: Torture victims lose documents bid
- Newt Gingrich: I would ignore supreme court as president (Chris McGreal/Guardian)
- Gingrich suggests he will ‘ignore’ Roe v. Wade: "Could simply issue instructions to ignore it...”
- Sex-trade workers make their case in top court
- Invasion of Privacy Tort in Ontario - Implications for Entertainment Lawyers (Tarantino)
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Friday, January 20, 2012
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Thursday, January 19, 2012
140 Law - Legal Headlines for Thursday, January 19, 2012
- Cruise Lines Use Law and Contracts to Limit Liability
- Pentagon: Thousands of sex assaults unreported
- Tort of Invasion of Privacy in Ontario
- Christie Blatchford: Shafia trial testimony ends with an abrupt whimper - National Post
- Facebook Stalking in Family Law...Again
- Porn industry could pull out of L.A. if condoms required
- Keep Your Pants On - The Morals Clause in Performer Contracts (Tarantino)
- Squatters claim Manitoba couple's Texas vacation home | CTV Edmonton
- Jones v. Tsige: New Tort of “Intrusion Upon Seclusion” Recognized by Court of Appeal!
- BC lawyer fined $1500 for outburst at Ontario colleague - Canadian Lawyer Magazine
- SCC hearing landmark common-law marriage case
- 23-21 vote undoes many of Mayor Rob Ford’s budget cuts
- Julian Assange: The Rolling Stone Interview (Rolling Stone)
- Supreme Court Rules on Sullivan & Cromwell’s Mailroom of Death
- SOPA Internet Blackout: Congress is Listening
- Thou shalt not tweet to strangers. And other foolishness from the Florida Bar: Real Lawyers Have Blogs
- Ontario Court of Appeal recognizes invasion of privacy as common law tort - Financial Post
- U.S. Prosecutors aim new weapon at Occupy activists: lynching allegation
- Ontario Court of Appeal Opens Pandora’s Box of Privacy Tort | eLaw Buzz
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Thursday, January 19, 2012
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Wednesday, January 18, 2012
140 Law - Legal Headlines for Wednesday, January 18, 2012
- Google Joins Online SOPA Protest
- Wikipedia goes dark on piracy bill protest day
- Google Joins Online SOPA Protest
- European Court of Human Rights: UK cannot send extremist preacher home to Jordan
- Law School Transparency Report
- Judge says Lindsay Lohan doing well on probation
- Accidents involving headphone-wearing pedestrians on the rise
- Social Media and Politics Come Together
- Enough signatures collected to recall Wisconsin governor (Brendan O'Brien/Reuters)
- Prisoner thought he was 'going to die' amid Toronto police beating, trial told - Toronto Star
- Nortel employees took 'conspirational approach' to accounting, Crown says - Ottawa Citizen
- Arizona ethics committee says it's "ok" for law firms to use ".org" in web address
- How to conduct a dismissal meeting - Canadian HR Reporter (blog)
- The problem with non-compete clauses in employment agreements - CTV.ca
- RIM sues California lawyer - Globe and Mail
- Supreme Court of Canada: Quebec case puts spotlight on economic rights of common-law partners
- Internet blackout against law fails to enlist big sites
- "First Thing We Do, Let's Kill All the Law Schools"
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Wednesday, January 18, 2012
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Tuesday, January 17, 2012
140 Law - Legal Headlines for Tuesday, January 17, 2012
- French judge wants to probe Gitmo torture claims
- OPP Association (OPPA) to appeal OCA decision that dictates how and when police officers prepare notes.
- Google, Facebook to Delhi court: Impossible to pre-screen content
- Elder and Guardianship Mediation in Canada
- DiManno: Curtain raised on biggest cop corruption case in Toronto history - Toronto Star
- Charges downgraded for Australian who mooned Queen
- Tacky Lawyer Video Du Jour: 'Bully Lawyer'
- Supreme Court of Canada to hear whether ISPs are broadcasting undertakings
- Mother accused of abducting infant daughter in 1993 granted bail
- Group applauds Liberal policy to legalize marijuana
- Legal Ethics to Go, Thanks to New Bar App
- Marriage and Divorce in the Conflict of Laws
- Canada Revenue Agency gets low customer service marks
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Tuesday, January 17, 2012
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Monday, January 16, 2012
140 Law - Legal Headlines for Monday, January 16, 2012
- Do You Really Need a Password You Can Barely Remember?
- "Eric & Lola:" Supreme Court of Canada to decide if Quebec common-law spouses have property rights on separation
- Feds’ waffling on legality of foreign same-sex marriages in Canada ‘problematic’
- Coroner’s inquest opens Monday in death of 18-year-old in Toronto police custody
- Alberta enacts new standards for fertility clinics
- Supreme Ct of Canada defines when a “material change in circumstances” permits variation of spousal support
- Lambda Legal releases ‘Sh*t Homophobic People Say’ video
- 10 Reasons The U.S. Is No Longer The Land Of The Free (Jonathan Turley)
- Harper government didn't disclose dangerously high radiation in Canadian rainwater after Fukushima
- Inside Canada's battered EI system
- Joel J. Tyler, Judge Who Ruled ‘Deep Throat’ Obscene, Dies at 90
- Police arrest Italian captain of cruise ship that ran aground, killing 3 (CNN)
- Missouri bill would require public schools to teach intelligent design creationism
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Monday, January 16, 2012
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Saturday, January 14, 2012
This Week at the Ontario Court of Appeal - January 13, 2012
Each week, Wise Blog looks at recent decisions from the Ontario Court of Appeal.
Tuerr Holdings Inc. v. Vrankovic
The appellant, Peter Vrankovic, appealed from an order granting summary judgment to the respondent, Tuerr Holdings Inc., on the appellant's guarantee of a second mortgage on a commercial property owned by Cambridge Place Commercial Corporation ("Cambridge"). The appellant was the president and director of Cambridge.
The respondent served a Notice of Intention to Enforce Security on Cambridge and a Notice to Attorn Rents on Cambridge's tenants as a consequence of Cambridge being in default on its second mortgage to the respondent. On May 14, 2010, the parties executed a Minutes of Settlement and Forbearance Agreement. The respondent agreed to suspend any further enforcement proceedings on the mortgages until September 5, 2010. This agreement was contingent on Cambridge paying the arrears owing to the respondent and keeping its first mortgage on the property, held by Meridian Credit Union (Meridian), in good standing. Moreover, the Minutes of Settlement and Forbearance Agreement were confirmed by a consent court order.
Contrary to their agreement, Cambridge failed to pay the arrears owing to the respondent and defaulted on its first mortgage to Meridian. As a consequence, Meridian obtained an order appointing a Receiver to sell the property. Furthermore, the respondent commenced an action against the appellant on his guarantee of the second mortgage and obtained summary judgment on the claim.
The Court agreed with the motion judge that Cambridge breached the terms of the Minutes of Settlement and Forbearance Agreement by failing to pay the arrears owing to the respondent and by its default under the first mortgage provided by Meridian. Further, when Vrankovic signed the Minutes of Settlement, the respondent was unaware that Cambridge was already in default in its mortgage payments to Meridian (first mortgagee), and owed over $500,000 in municipal taxes on the property. The Court reaffirmed the motion judge's conclusion that by signing the document in his personal capacity, the appellant waived his right to raise any previous deficiencies in the respondent's enforcement proceedings in response to the motion for summary judgment.
The Court dismissed the appellant's position that Meridian verbally agreed to forbear on enforcement of its first mortgage and to permit Cambridge to pay reduced rent so that it could pursue lease negotiations that would yield increased revenue from existing or potential tenants. The appellant submitted that this evidence served a viable defence to Meridian's assertion that it was entitled to enforce its mortgage security. Additionally, the Court noted that the motion judge correctly rejected the appellant's assertions of an oral forbearance agreement with Meridian, as these assertions were not supported by any documentary evidence, were inconsistent with the terms of the first mortgage and failed to adduce any convincing evidence that Cambridge lost prospective tenants as a result of the respondent's actions.
The Court added that Cambridge was hopelessly in debt, in breach of the terms of the first mortgage and could not be rescued by any extended lease arrangements that were a long ways away from completion. As a result, the Court found that the appellant failed to raise any genuine issues requiring a trial.
Warren Woods Land Corporation v. 1636891 Ontario Inc.
The primary issue on appeal was whether the appellant satisfied the three criteria for the granting of a stay under rule 63.02(1)(b) of the Rules of Civil Procedure.The order sought to be stayed was an order removing all notices filed by the appellant on the land of the respondents (the "Owner"). The application judge held that the appellant did not have an interest in the land in question at the time the notices were registered.
Article 3.14 of the Development Management Agreement between the appellant and respondent contained a provision, which gave the appellant an option to purchase the land. The respondent was disappointed with the appellant's work and advised the appellant that it wished to terminate the Agreement. The respondent did not take the required steps to terminate as contemplated by the Agreement.
The appellant registered the notices in question on October 16 and 28, 2009, claiming entitlement to an unregistered interest in the Owner's property pursuant to s.71(1) of the Land Titles Act. The respondent subsequently sent a Notice of Complaint to the appellant on August 8, 2011, which referred to default on the part of the appellant. The appellant replied to the respondent's Notice of Complaint by letter a two and a half weeks later, providing its understanding of their agreement. Further, the respondent claimed to have formally terminated the Agreement on August 30, 2011 and brought an application to have the notices that the respondent registered on title removed.
Additionally, the appellant claimed that the fact the Agreement created a contingent option to purchase land signified that it had an interest in the land. The respondent submitted that the issue whether an interest in land had been created was a question of mixed law and fact. Moreover, they stated that the appellant only had a right to an "incorporeal hereditament" at common law, which is an intangible right. In Bank of Montreal v. Dynex Petroleum Ltd, the court held, "At common law, an interest in land could issue from a corporeal hereditament but not from an incorporeal hereditament". Therefore, the respondent's position was that since the appellant only had a right to an incorporeal hereditament, it did not have an interest in the land in dispute at the time it registered the notices.
The respondent also argued that Article 3.14 of the Development Management Agreement was void because it contained no time restrictions and thus violated the rule against perpetuities. According to Politzer v. Metropolitan Homes Ltd, an equitable interest is void if it can vest beyond the perpetuity period of twenty-one years.
The Court articulated the three criteria for the granting of a stay:
- The appeal must raise a serious question;
- The appellant must demonstrate that it would suffer irreparable hard if the stay were not granted;
- 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.
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.
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.
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.
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.
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Labels: employment law, employment standards act, layoff, Ontario Court of Appeal, Ontario Court of Appeal Report
Ontario Human Rights Tribunal Digest - December 1, 2011-January 1, 2012
RULINGS ON DISCRIMINATION
Rampersaud v. Primary Response Inc. et al.
In this case, the Applicant, a self-identified Black male of East Indian descent who was employed as a security guard, alleged discrimination against the Respondent security company on the basis of race, colour, place of origin, ethnic origin, disability and age, contrary to sections 5(1), 5(2) and 9 of the Code. The Respondent stated that the Applicant had been terminated after he was involved in an egregious incident at the assigned work site involving the exchange of unauthorized parking passes to cafeteria staff in return for free beverages from them.
Employment Standards had determined that the Applicant was not entitled to termination pay since he had been guilty of wilful misconduct. Nevertheless, the Tribunal refused to dismiss the Application on the basis that the substance of the Application had been dealt with in another proceeding since none of the Code-related allegations in the Application were addressed in the ESA proceeding.
The Applicant cited the several incidents of discrimination against the Respondent, for which he sought substantial monetary compensation:
- After his return from a medical leave, the Applicant claimed that a specific Respondent employee, Ms. Oza, an employee who he believed had supervisory authority over him, tried to have him demoted. The Tribunal rejected this allegation on the basis that it was based on hearsay information and that the Applicant had not identified the informant nor how he or she would have known this information.
- The Applicant claimed that he was subject to discriminatory comments on the basis of his ethnic background, namely that he was called "Son of Slave" by Ms. Oza in the presence of other employees, a derogatory and demeaning term about the Applicant's ethnic group. With respect to this allegation, the Tribunal held in favour of the Respondents, noting that the Applicant had not mentioned this allegation in his Application and that sufficient particulars of the allegation had not been put into evidence. What language was the remark made in? What was the context of the statement?
- The Applicant claimed he was improperly excluded from radio communications during the course of his shifts because of his race, but was not aware whether other security guards were being treated in a similar way. The Respondents claimed that this did not occur, or if it did, any denial of access was not done purposely and was as the result of faulty radios. The Tribunal accepted the Respondents' version of events, noting that even if he had been improperly excluded somehow from radio communication there was not evidence that this was done for reasons related to Code grounds.
- The Applicant claimed he was improperly denied computer access by the Respondents on the basis of Code Grounds. Again, here, the Tribunal sided with the Respondents, finding that the Applicant was only denied access to specific terminals for logistical reasons and that any improper denials were not linked to Code grounds in any event.
- The Applicant claimed he was falsely accused and verbally disciplined for giving false evidence to the media by the Respondents with respect to a security incident that had occurred in October 2008. The Tribunal rejected the Applicant's allegation here too, preferring the Respondents' evidence that the Applicant had been disciplined for violating company policy in not waiting for the police and ambulance before attending at the scene.
In my view, the Respondents have established a reasonable non-discriminatory explanation for the termination of the Applicant's employment.PROCEDURAL RULINGS
Romero v. Mennonnite Brethren Senior Citizens Home et al.
In this case, the Applicant filed an application alleging discrimination and harassment in employment contrary to the Ontario Human Rights Code. The Tribunal issued a Notice of Confirmation of Hearing to the parties, requesting that they comply with their disclosure obligations under Rule 16.1 of the Tribunal's Rules of Procedure.
Rule 16.1 states:
Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):The Respondents did not comply and the Applicant sought an Order compelling produce of documents from the Respondents. The Tribunal ordered the Respondents to comply with the requirement under Rule 16.1 within one week.
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
Vallee v. Fairweather Ltd.
In this case, the Applicant filed an application alleging discrimination against the Respondent. The Respondent had continued to fail to file a response in spite of rulings and notices by the Tribunal that it do so in accordance with the Rules of Procedure.
Rule 5.5 of the Tribunal's Rules of Procedure provides:
Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may: a) deem the Respondent to have accepted all of the allegations in the Application; b) proceed to deal with the Application without further notice to the Respondent; c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; d) decide the matter based only on the material before the Tribunal.In accordance with Rule 5.5, the Tribunal held as follows:
. . . the Respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the Respondent. The Respondent is deemed to have waived its right to participate pursuant to Rule 5.5(c) and to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).
If you believe you have experienced discrimination, contact a lawyer who can advise as to your rights and entitlements under the Ontario Human Rights Code and other relevant legislation.
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Labels: employment law, Ontario Human Rights Code, Ontario Human Rights Tribunal
Friday, January 13, 2012
140 Law - Legal Headlines for Friday, January 13, 2012
- Ottawa moves to defuse same-sex controversy - The Globe and Mail
- After delay, John Edwards case in court
- India's government agrees with court, wants Facebook, Google executives to stand trial over users' posts
- Canada: Marriages of foreign gays are invalid (MSNBC)
- Ottawa does about-face on same-sex marriage for non-Canadians - Globe and Mail
- Judge Blocks Release of 21 Inmates Granted Clemency by Outgoing Mississippi Governor
- Your bullying boss may be slowly killing you
- Canada's Conservative Government Turns My Husband Back Into My Boyfriend - Dan Savage
- "Flexitarianism:" Why Americans Are Eating Less Meat
- Judge agrees Natalee Holloway is dead
- Brazil rules sending work email afterhours is overtime
- Principal faces criminal charges for hypnotizing students
- Outrage Over Video of Marines Urinating on Taliban Corpses (New York Times)
- Court-martial recommended for Bradley Manning over WikiLeak documents
- US Congressman won't buckle on Stop Online Piracy Act Despite Objections From Google, Facebook, Twitter
- Six reasons why the opening statement is the most important part of a trial
- Ontario man found guilty in nude drive-thru incident
- Justice and John Turner: What Might Have Been
- TheSpec - Same-sex marriages of non-resident couples not legal...
- Justice Minister looks to clarify law so same-sex marriages 'can be undone in Canada - National Post
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Friday, January 13, 2012
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Thursday, January 12, 2012
140 Law - Legal Headlines for Thursday, January 12, 2012
- Guantanamo Detainee Sues for Public Release of Torture Tapes
- Judge blocks former Mississippi governor's pardons
- Save Our Twinkies - Hostess files for Bankruptcy
- Recruiters Advising Job-Seeking Lawyers to Leave Advanced LLM Degree Off Resumes
- UK Court overrules government ban on BBC interview with terror suspect
- Van der Sloot Pleads Guilty in Death of Peruvian Woman; Lawyer Blames Holloway Arrest Trauma
- US Supreme Court Justices Recognize ‘Ministerial Exception’ to Job Discrimination Laws
- Lindsay Lohan says paparazzi who's suing her is 'opportunist'
- Surprising Observers, Aga Khan Fights Record $75M French Divorce Court Award
- Supreme Court upholds ADA ministerial exception
- Dutch court orders Internet providers to block Pirate Bay
Posted by
Rachel, Law Clerk
on
Thursday, January 12, 2012
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Wednesday, January 11, 2012
140 Law - Legal Headlines for Wednesday, January 11, 2012
- Overtime risks and misconceptions - Canadian HR Reporter
- Woman "upset" with TV 'Judge Judy attacks 65-year-old man with hammer
- Court allows Texas to force women into medically unnecessary sonograms before abortions
- 1,000 South Americans to sue over faulty French breast implants: lawyer
- US Supreme Court Weighs Relevance of TV Indecency Laws
- Grenada PM deflects calls for inquiry into police - CBC.ca
- Court to Decide if Gingrich, Huntsman, Santorum, Perry Will Be on Virginia's Primary Ballot
- More than 9,000 Lawyers Boycott Pakistan Courts to Protest Senior Attorney’s Murder
- Hit by Judgments, Copyright Troll Righthaven Decries ‘Scorched Earth’ Effort to Collect
- Ohio parents plead guilty to "attempted involuntary manslaughter" in son's cancer death -failed to seek treatment
- Edmonton man accuses airlines of discriminating against tall people - Toronto Star
- Harper's Bad Idea: Bill C-10 and the Strategy to Fill Our Prisons - The Sudbury Star
- Former Liberal MP John Nunziata faces LSUC disciplinary charge: "Conduct unbecoming" over alleged perjury
- UK: Five Muslim men accused of hate crime over anti-gay leaflet (Guardian)
- US Supreme Court Cites Withheld Evidence in Reversing Conviction
- Too much information: Warning against making Facebook friends with co-workers - Daily Mail
- India: Google, Facebook fight case in Delhi High Court over obscene material online - NDTV
- New blow dealt to Oklahoma's anti-Shariah effort
Posted by
Rachel, Law Clerk
on
Wednesday, January 11, 2012
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