Tuesday, May 31, 2011

140 Law - Legal Headlines for May 31, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

Thank you for taking the time to read our tweets! Have a fantastic day.

- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Monday, May 30, 2011

This Week At The Ontario Court of Appeal: 11-05-27

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal. It was a bit of a slow week at the Court, so we've highlighted only once case.

Barrington v. Institute of Chartered Accountants of Ontario. Mr. Barrington, along with two other accountants, Mr. Power and Mr. Russo, working for Deloitte and Touche LLP, were responsible for the 1997 audit of Livent Inc., which was later found to be improperly managed and its financial statements fraudulent. The ICAO brought charges of professional misconduct against Mr. Barrington and the other accountants: specifically, they charged them with failure to comply with generally accepted accounting principles ("GAAP") and generally accepted auditing standards ("GAAS").

The main issue in the charges was the nature of the Put agreement between Livent and a realty corporation regarding development of the property that would eventually become the Pantages Theatre complex. Livent sought to recognize revenue under the agreement when it was not allowed to do so. The Deloitte accountants informed the company that this was contrary to GAAP but Livent did so anyway.

Deloitte threatened to resign until Livent agreed to remove the Put clauses from the overall agreement between Livent and the realty corporation. Livent then re-established the Put clauses in a side agreement with the realty corporation without Deloitte's knowledge; the Deloitte accountants had a meeting and decided that the Put side agreement had been rescinded. The Discipline Committee of the Institute subsquently charged them and found them in violation of professional standards. Mr. Barrington and his colleagues appealed to Divisional Court, who quashed all of the charges against Mr. Barrington and some of the charges laid against Mr. Power and Mr. Russo on the grounds that they violated procedural fairness and natural justice. Mr. Power and Mr. Russo appealed the remaining charges to the Court of Appeal; the ICAO also appealed, seeking reinstatement of the charges against all three accountants.

The Court of Appeal divided the appeals into three issues: whether Mr. Barrington et al had had sufficient notice as regards those charges that the Divisional Court had not quashed, whether the Disciplinary Committee provided adequate reasoning for finding misconduct for other charges against Mr. Power and Mr. Russo, and whether the legislative amendments subsequent to the Divisional Court's decision could retroactively validate the Committee's costs award.

The Court of Appeal first ruled that the Divisional Court had mischaracterized the charges related to the Put agreements. The Divisional Court had stated that the Put-related allegations were effectively a new charge upon the accountants; the accountants themselves agreed and argued before the Court of Appeal that neither the charges nor disclosure nor submissions had put them on notice that the Put would be in issue, and that they therefore did not know the case they had to meet. The ICAO submitted that the Put was relevant to their argument that they had reasonable assurances that the revenues realized would be properly received.

The Court was sympathetic to the ICAO's argument, also adding that the Put was not a new allegation and that the accountants would have to recognize that any investigation into potential disciplinary action would take it into account, that the accountants were not surprised or prejudiced by the the Committee relying on the Put and that the Committee ultimately did not find the accountants guilty of breaching GAAP standards in relation to the Put, but instead of recognizing income that they should not have recognized.

The Court of Appeal then considered the additional charges against Mr. Powers and Mr. Russo which were quashed by the Divisional Court. These charges were in relation to a pair of transactions where Livent transferred receivables owing to another party and which were recorded as sales by Mr. Power and Mr. Russo after some deliberation, but should not have been recorded as sales. The Divisional Court felt that the Committee's charges were unreasonable due to a lack of explanation as to why Mr. Powers and Mr. Russo's actions were an error of judgement, as well as a lack of explanation as to why if there was a breach of the standard, that there was also no explanation as to why it was so great a breach as to constitute professional misconduct.

The Court of Appeal disagreed, pointing out that previously, even in the post-Dunsmuir era of administrative law appeal, the Court had made clear that an administrative tribunal did not have to explain its full decision so long as its "path" taken to reach its decision was clearly laid out, and the Court felt that the "path" in this case was clear.

Finally, the Court of Appeal also overturned the Divisional Court's decision to quash the costs the Committee ordered upon the accountants. The Divisional Court did so as regarded the relevant statutory law at the time, but since that decision the Chartered Accountants Act had been revised, allowing it to take precedence over the Statutory Powers Procedure Act, which had restricted when a tribunal could order costs. The accountants argued that Zadvorny v. Saskatchewan v. General Insurance distinguished between retroactively changing a law and "the extinguishment of a judgement," suggesting that it would take extremely clear language to deprive a respondent of his judgement. The Court of Appeal disagreed, pointing out that the accountants weren't being deprived of the award of a successful action, but instead had been subject to disciplinary proceedings and that therefore the precedent did not apply. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

140 Law - Legal Headlines for May 30, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

Thank you for stopping by, have a fantastic Monday!
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Friday, May 27, 2011

140 Law - Legal Headlines for May 27, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

We hope that all of our readers have a lovely weekend. Thank you for taking the time to read our tweets!

- Rachel Spence, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Thursday, May 26, 2011

140 Law - Legal Headlines for May 26, 2011

Here are today's leading legal headlines from Wise Law on Twitter:

Have a wonderful day!
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Rae Days

Is there anyone in Canada who doesn't believe that Bob Rae will ultimately wind up as the "permanent" leader of the Liberal Party, once this interim, kabuki thing is over?

(Not that there's anything wrong with that...)

- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Ontario Employment Law: Reprisal For Asserting Rights Pursuant To An Employment Contract Amounts To Wrongful Dismissal

In Brown v. 1714717 Ontario Inc., decided April 26, 2011, the Ontario Labour Relations Board found that an employer had wrongfully terminated the applicant employee when it dismissed her without cause, and in reprisal for requesting and taking time off for a vacation.

Because the employee in the case had completed less than twelve months of employment at the time she asked for time-off, she was not entitled to take a vacation or receive vacation pay under Part XI of the Ontario Employment Standards Act. Therefore, she could not insist on these entitlements as a matter of law.

Nonetheless, the employer acceded to her vacation request for time off. It also paid the applicant her accrued vacation pay. In so doing, the employer had conferred on to the applicant a greater right or benefit than the "minimum standard" provided for under the Act.

Subsection 5(2) of the Act reads as follows:
(2) If one or more provisions in an employment contract or in another act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions of the contract or Act apply and the employment standard does not apply.
Having given the applicant employee a "greater right" in permitting her take the requested time off, the employer could not then reprise against her for exercising the right merely because it was one that flowed from the employment agreement, as opposed to from the Act. This was equally a violation of section 74 of the Ontario Employment Standards Act, which, in part, reads as follows:
(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee

(iv) exercises or attempts to exercise a right under this Act
Because the responding party employer did not participate in the hearing, leaving the applicant's testimony uncontradicted and fully intact, the employer could not discharge its burden to demonstrate that it had not contravened the Act by dismissing the employee for requesting and taking a vacation from work (see subsection 74(2) of the Act).

Thus, the board found that the applicant had been wrongfully dismissed. In addition to termination pay, which she had already received from the respondent employer, the board awarded her $500.00 in damages for the employer's violation of the reprisal provisions of the Act.
- Robert Tanha, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

This Week At The Ontario Court of Appeal: 11-05-20

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

R. v. Roncaioli. An appeal in a manslaughter case where the convicted defendant was accused of killing his ailing wife by injecting her with two different types of anaesthetics in fatal doses. Mr. Roncaioli, at trial, maintained that he had only injected his wife with therapeutic doses of the two drugs, and that his wife had injected herself with the fatal doses. Mr. Roncaioli appealed on a number of grounds.

His first ground of appeal was unreasonable delay; there had been a delay between his arrest and his trial of 48 months, and slightly more than 19 months of that delay was characterized by the trial judge as institutional delay. This was slightly more than the reasonable institutional delay guideline set out in R. v. Morin, but only slightly, and thus the trial judge allowed the case to proceed. Mr. Roncaioli appealed on the grounds that some of the delay had been mistakenly characterized by the trial judge as defense delay instead of institutional delay, as his lawyer had requested an additional delay of six months due to having a murder trial immediately following Mr. Roncaioli's. The Court of Appeal was not impressed with this line of argument, as the gap in between the two trials would likely have been nearly a month, which the Court found was adequate preparation time.

His second ground of appeal was that the judge unfairly agreed with the Crown's position that a guilty count of manslaughter was possible either through criminal negligence or through aggravated assault, and that this confused the jury. The Court of Appeal did not agree with this ground of appeal either; the Court stated that although elements of both types of manslaughter overlapped in this case's facts, it nonetheless remained that proving negligence and proving assault were two different things entirely.

Mr. Roncaioli also appealed on the ground that the trial judge wrongly instructed the jury to consider his potential motive for committing the crime as he was not charged with murder. The Court disagreed again, as the trial judge had expressly told the jury that Mr. Roncaioli was not charged with murder, had marshalled the evidence demonstrating that perhaps his wife had committed suicide, and finally stated that although not necessary to prove manslaughter, evidence of motive could be used in assessing the likelihood of the defendant committing the crime.

His final ground of appeal regarding his conviction was that the judge improperly instructed the jury as regards causation of manslaughter. Initially the trial judge properly instructed the jury as regards intervening cause in this case, but during a second set of instructions the trial judge failed to remind the jury that nothing else - such as action by the appellant's wife - could intervene to cause the death if he were to be found guilty. The jury noticed this omission, and requested further instruction: the judge correctly instructed them the third time around, re-emphasizing her original instructions. The Court pointed out that the judge repeatedly and correctly instructing the jury was the opposite of confusing them and dismissed this ground of appeal.

Mr. Roncaioli also appealed his sentence, arguing that it had been set on the basis of unlawful act manslaughter but the jury's verdict had not been clear as to whether his manslaughter conviction was because of the aggravated assault or because of criminal negligence, and he was therefore entitled to the benefit of the doubt and have his sentence treated as manslaughter via criminal neligence, which he contended was "not as morally blameworthy as unlawful act manslaughter." The Court disagreed, stating that it was open to the trial judge to determine how manslaughter had occurred and that her sentence was reasonable given the nature of the case. Read-the-whole-case rating: 2.

B & M Handelman Investments Ltd. v. Curreri. Mr. Curreri was unemployed and in his sixties when a friend and business advisor suggested that he raise money for a business opportunity overseas by mortgaging properties owned by his father. (Mr. Curreri impersonated his father in order to do this.) The monies raised have since disappeared. The mortgagors commenced an action against Mr. Curreri and obtained a Mareva injunction against him, which included $250,000 Mr. Curreri had won in a Keno lottery. Mr. Curreri did not defend the action and the mortgagors successfully moved for partial default judgement.

Meanwhile, Mr. Curreri was arrested and charged with twenty counts of fraud over $5,000. The mortgagors moved to have Mr. Curreri's lottery winnings be paid to the sheriff so they could collect; Mr. Curreri responded with a cross-motion that about half of the money be paid to his lawyers in trust to defend the action, the criminal proceedings, and for him to live upon. Despite Mr. Curreri successfully demonstrating that aside from the lottery winnings, he had no income beyond $600 a month in CPP payments, and claiming that he intended to defend the civil action and move to set aside the partial judgement, the motion judge granted the mortgagors' motion. Mr. Curreri appealed.

The Court dismissed his appeal. Mr. Curreri had only stated an intention to set aside the partial judgement, and had not brought a motion nor delivered a statement of defence; further, on the record before the Court, there appeared to be no defence available to him, and he continued to affirm that he had no idea where the lent money had gone. The Court noted that Mr. Curreri's counsel had formed an argument that made no reference as to a potential defence for him, because their position was that the money was not proprietary and therefore no merit was needed to be shown; the Court was extremely dismissive of this approach and stated that in light of it they could not grant special consideration to Mr. Curreri. The Court also stated that given the lack of a presented defence of merit, it could not allow Mr. Curreri to access the money for his criminal defence. Read-the-whole-case rating: 2.5.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net