Friday, February 18, 2011

This Week At The Ontario Court of Appeal: 11-02-18

Each week, Wise Law Blog will review recent decisions by the Ontario Court of Appeal.

Love v. cuity Investment Management Inc. Appeal of a wrongful dismissal ruling. At trial the Plaintiff, a chartered accountant working as an investment manager, was awarded five months' pay in lieu of notice and damages for loss of value of shares he was contractually required to sell back to his employer upon termination. The plaintiff felt that the trial court undervalued his notice period and appealed.

At trial, Mr. Love was found to be a "short service employee," having worked for his employer for about two and a half years. The trial judge characterized him as a "senior-level sales" worker and found that he did not manage or supervise others. These factors, combined with his period of service, led to the decision of five month's required notice.

The Court of Appeal disagreed with this assessment, pointing out that Mr. Love's short period of service (which served as the trial judge's major reference point) was not the solely relevant factor. The Court found that referring to Mr. Love as a senior-level salesperson made light of his position as a senior vice president reporting directly to the CEO, and noted that unlike the circumstances in other cases cited, he was in fact a partial owner of the company while he was employed there.

The Court further found that the trial judge had not adequately taken into account the Bardal factor of potential for similar employment, and noted that Mr. Love's opportunity for finding another senior, equity-owning position in investment management was low. This required a higher period of notice, and the Court increased the applicable notice period to nine months from the original five.

The Court also considered two other issues in the appeal. Firstly, it characterized a second settlement offer made by the employer as revoking its first offer; the employer had suggested that since the second offer was merely the first offer discounted by the amount of a payment made to Mr. Love, it was in essence the same offer in modified form. The trial judge agreed; the Court did not, and stated that this was indeed a second offer, although it did not merit an increased costs payment to Mr. Love.

Secondly, the Court considered a cross-appeal by the employer, who took issue with how the damages for lost share value were calculated. At trial, the trial judge accepted the Plaintiff's argument that the increase in share value should be calculated from date acquired through to the end of the period of reasonable notice.

The employer cross-appealed, arguing that the termination date should instead have been the appropriate valuation date. The Court agreed with the employer, holding the share agreement between Mr. Love and the company required that he offer to sell back shares to the company as soon as he was not an employee of the company, and that the agreement anticipated a termination without notice in this regard. Read-the-whole-case rating: 4 for the portion dealing with the notice period; 1.5 for the balance.

R. v. Manley. A criminal case dealing with three elements: identification evidence, section 8 Charter rights dealing with the searching of stored data on a cellphone, and judge instruction.

Mr. Manley was accused of robbing a Mr. Sub and a music store at gunpoint while wearing a T-shirt with holes cut in it for a mask. (DNA on the shirt matched Mr. Manley's.) A confidential informant identified him as the suspect in the robbery, and police arrested him, seizing among other things a cellphone on his person. They searched the cellphone's data and found a picture of Mr. Manley carrying a sawed-off shotgun, which was the same sort of weapon that was used in the music store robbery. This photo was introduced as evidence at trial.

At trial, the Mr. Sub employee present at the robbery - who had not been able to identify Mr. Manley as the robber at the preliminary inquiry and had never been shown a lineup - was asked as to the robber's general features. She was then asked about Mr. Manley's eyes, and if they were "for sure" the eyes of the masked robber. She said yes, and when asked if she was certain that those eyes could not have belonged to anyone else reiterated her yes. Similarly, the owner of the music store, after testifying as to a general description of his robber, said that he had since recognized Mr. Manley as the robber by his "profile." Finally, the judge, in his instructions to the jury, reminded them that simple robbery was an included offence to armed robbery, and that they could find Mr. Manley guilty of the former even if they could not find him guilty of the latter.

Mr. Manley was convicted and sentenced to eight years' imprisonment, and appealed his sentence in three respects: that the witnesses' testimony and identifications were not properly discounted by the judge's instructions, that the photograph from the cellphone should not have been admissible as evidence at trial due to it being an illegal search, and that the judges' instructions were erroneous when he spoke about simple robbery being an included offense.

The Court denied all grounds of appeal. In respect to the witnesses' identification testimony, the Court found that while a stronger warning as to the reliability of the witnesses' purported semi-identification of Mr. Manley and an instruction stating that in-dock identification generally lacks value as a reliable identification would have been preferable, ultimately the judge conducted himself properly and gave the jury a general warning about identification evidence. Given that both witnesses qualified their in-dock identifications, the Court found the impact of those identifications was lowered, and with, it the potential for judicial error.

In regard to the cellphone search, at trial the judge found that the search and seizure was conducted for three reasons: safety of the police, checking the ownership of items in the suspect's possiession, and to preserve evidence. The third element was satisfied because an officer at the scene felt that if the phone, which had a low battery, powered down the photo might be lost, which was why he downloaded it to his phone and then to a police computer. Mr. Manley argued that the police were not entitled to search the data in the phone without warrant as an incident to arrest, citing R. v. Polius,, where a Superior Court judge ruled that the Crown did not have the power to examine the contents of a lawfully seized cellphone without a warrant. The Crown responded to the appeal arguing both that under the circumstances, the police were entitled to a cursory warrantless inspection of the phone, and that more broadly Polius was bad law and that the police are entitled to conduct warrantless searches of cellphones.

Although the Court agreed that Polius was good law and that generally warrantless searches of cellphones, which often contain personal and private information, should not be allowed, they agreed with the Crown that in this case the search was lawful since the police had a legitimate interest in determining whether the cellphone was stolen or owned by the suspect, and did not know the number (and the Court stated that if they had indeed had access to the number, further search of the phone's data would have been unlawful).

Finally, in regards to the robbery instruction, the Court felt that the instruction was justified. The Crown argued that the wording of the judge's instruction did not limit the Crown to a specific mode of robbery; the inclusion of the sawed-off shotgun as the specific weapon in this instance was not to particularize the offence but rather to establish a threshold for the minimum sentence for robbery where a firearm was used. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto

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