Tuesday, April 26, 2011

This Week At The Ontario Court of Appeal: 11-04-21

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

Smith v. Casco Inc. An appeal in a case where the plaintiff was suing her husband's employer. Ms. Smith's husband worked for Casco for 39 years and was offered an early retirement with pension in 2000, with a variety of pensions from which to select. The default option would have provided Ms. Smith with survivorship benefits for life; however, her husband selected a different option, which provided greater benefits to him but had no survivorship benefits to his wife beyond 2005. In order to consent to this, Ms. Smith had to sign a spousal waiver, which upon her cursory reading she mistakenly believed provided her with a lifetime survivorship benefit.

Mr. Smith died in 2003, at which time Ms. Smith learned of the actual survivorship clauses and brought action against Casco for negligent misrepresentation. The trial judge found for Ms. Smith and awarded her damages, equivalent what she would have received if her husband had selected the default pension with survivorship benefits for life. Casco appealed to the Divisional Court, which agreed with the trial judge in a split decision.

Casco then appealed to the Court of Appeal.

Casco raised a number of grounds, but the Court apparently considered only one argument to be of import. According to the Pension Benefits Act, survivorship benefits are required to be in every pension unless the persons entitled to those benefits sign a waiver in in the form approved by the Office of the Superintendent.

The Casco waiver form deviated from this form in multiple ways: it did not have a standalone statement in bold type, as per the standard Superintendent-approved waiver, stating that by signing the document entitlement pursuant to the Act was waived, nor was it titled "Waiver of Joint and Survivor Pension" as the approved waiver is, nor did it state in bold type that before signing each person should obtain independent legal advice.

Casco's failure to provide a waiver of the prescribed form was the reason that Ms. Smith was successful both at the trial level and then in her appeal to the Divisional Court, and the Court of Appeal again agreed with Ms. Smith and found for her, awarding costs to her as well. Read-the-whole-case rating: 2.

Whelan v. Ontario Racing Commission. Mr. Whelan took issue with a number of the terms of the Access Agreement of the Woodbine Entertainment Group, which runs horse racing events on its racetracks, and refused to sign the agreement. As a result, he was not permitted to race at WEG racetracks. He was informed by the onsite Ontario Racing Commission judge that he had to sign in order to be allowed to race, so he then appealed that decision to an ORC panel, which dismissed his request for a declaration that he need not sign the agreement. Mr. Whelan then appealed that decision to the Divisional Court, which did not agree that only the ORC's rules (as opposed to WEG's) can regulate racing, but nonetheless agreed with Mr. Whelan in that the ORC decision allowed WEG to arbitrarily exclude him from racing without a hearing, and that this was not acceptable. WEG appealed the Divisional Court's decision.

The Court of Appeal agreed with WEG and allowed its appeal, reversing the Divisional Court's decision. The Court first pointed out that the ORC's decision was not in respect to an agreement that denied him the ability to be heard by the ORC, and further that the agreement did not give WEG the right to arbitrarily exclude him. The Court also found that the Divisional Court did not give due consideration to the public's interest in requiring that Mr. Whelan sign the agreement.

The Court felt that the reasonableness standards set forth in Dunsmuir v. New Brunswick were upheld by the ORC. It held that the ORC's reasons showed that that body had considered all interests and explained its decision sufficiently, and listed the public interest considerations requiring Mr. Whelan's agreement in detail. Read-the-whole-case rating: 2 unless you'd like to read a good example of how administrative law appeals are handled in the post-Dunsmuir era.

R. v. Valovic. Mr. Valovic and his company were summarily convicted of multiple counts of GST and income tax evasion, as well as filing false income tax returns (along with his non-appealing wife, also convicted on similar multiple counts) and sought leave to appeal the decision. The Court of Appeal held that this was a case where leave to appeal should not be granted.

Firstly, the Court disagreed with Mr. Valovic's argument that the appeal would determine what sort of evidence in addition to a discrepancy between return and actual net worth is required to prove actus reus of tax evasion, primarily because the issue was addressed in 2008 in R. v. Hunter, where it was made clear that the discrepancy alone was enough to prove actus reus.

The Court also found that the appeal centred on two statements made by the trial judge, neither of which merited an appeal. In the first of these two statements, the trial judge stated that electricians, as a trade, were "notoriously likely to involve cash transactions more or less depending on the inclination of the tradesman." Mr. Valovic argued that this was a demonstration of bias on the part of the trial judge. The Court disagreed, holding that in context, the statement was addressing the nature of Mr. Valovic's method of operating his business, rather than expressing attitudes towards electricians generally. (The Court did note that the trial judge perhaps ought to have used different language to make this point.)

The second statement Mr. Valovic felt merited appeal referenced a potential deal he was considering with a contact in Nigeria. Mr. Valovic, in his conversation with the Nigerian contact, created a bank account in Slovakia for the purpose of receiving payment from a fraudulent invoice (although this plan was never executed, and the Crown submitted that this in conjunction with his email conversations demonstrated that Mr. Valovic knew that he had to pay income tax and had wilfully attempted to avoid doing so. Mr. Valovic argued that the trial judge's reaffirmation of this argument, especially after stating that he would not use the Nigerian-related evidence, constituted propensity evidence and was therefore inadmissible.

The Court disagreed with this as well, stating that the trial judge's comment was a throwaway, and that the lengthy discussion on-record about the impropriety of using the related evidence made it clear that the trial judge was not using the comment to prove mens rea for the offence. (Again, the Court noted that the trial judge's comment was "unfortunate and gratituous.") Read-the-whole-case rating: 3, because this is an interesting read of appeal grounds being smacked down, albeit politely, by the Court.
- Christopher Bird, Toronto
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