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140 Law - Legal Headlines for Friday, February 10, 2012

2012-02-10T08:50:00.002-05:00

Here are the leading legal headlines from Wise Law on Twitter for Friday, February 10, 2012:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Thursday February 9, 2012

2012-02-09T08:47:00.001-05:00

Here are the leading legal headlines from Wise Law on Twitter for Thursday, February 9, 2012:

-Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Wednesday, February 8, 2012

2012-02-08T08:54:00.001-05:00

Here are the leading legal headlines from Wise Law on Twitter for Wednesday February 8, 2012:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Tuesday, February 07, 2012

2012-02-07T09:01:00.001-05:00

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, February 07, 2012:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Monday, February 6, 2012

2012-02-06T09:02:00.000-05:00

Here are the leading legal headlines from Wise Law on Twitter for Monday, February 6, 2012:

-Rachel Spence, Law Clerk

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This Week at the Ontario Court of Appeal - February 6, 2012

2012-02-06T05:22:00.000-05:00

Each week, Wise Blog analyzes recent decisions from the Ontario Court of Appeal.

R. v. Ximines

This appeal followed a jury trial where the appellant was convicted of possession of cocaine for the purpose of trafficking. He was acquitted at trial on charges of possession of Canadian currency derived from the offence of possession of cocaine for the purpose of trafficking.

Two police officers claimed that they witnessed the appellant engaged in a hand-to-hand transaction with a woman, where the appellant gave the woman a plastic bag in exchange for a $50 bill. As the officers approached the scene, the appellant ran away. As he ran, the officers observed the appellant throwing objects from his pocket. The police picked up various drugs that the appellant threw away. Further, Officer Pauls testified that the appellant had a $50 bill in his possession when he was arrested.

Additionally, Officer Fletcher acknowledged during cross-examination that he made his notes in conjunction with Officer Pauls and that they discussed how the incident transpired. Moreover, he stated that he could not recall which items he picked up while following the appellant.

On appeal, the appellant raised two central issues. The appellant's position was that the guilty verdict was unreasonable and that the officers planted the drugs. In support of his position, he stated that it was obvious that Officer Fletcher fabricated portions of his evidence at trial, rendering the entirety of his evidence incapable of belief. Additionally, the appellant asserted that the verdict of not guilty on the possession of proceeds of crime charge was inconsistent with the guilty verdict on the possession for the purposes of trafficking charge, and made the latter verdict unreasonable.

The Court held that although there may have been credibility issues with Officer Fletcher's testimony concerning items that he picked up at the scene, it was open to the jury to make a finding of guilt based on the totality of evidence at trial. Regarding the appellant's submission that the drugs were planted, based on the Court's review, the Court was satisfied with Officer Fletcher's evidence at trial that he did not have any marijuana or cocaine in his pocket at the time of the appellant's arrest. Moreover, he did not seize any drugs prior to encountering the appellant.

The appellant's second central argument on appeal was that the trial judge erred in failing to provide the jury instructions explaining the importance of the independence of the police officers' notes. The appellant contended that the jury charge also failed to give a sharp warning about the potential impact of the police officers' collaboration when they prepared their notes.

The Court found that the trial judge did adequately advise the jury about the potential impact of collaboration on two occasions during the course of the charge. Therefore, the Court was content that the instructions given to the jury by the trial judge were sufficient to draw their attention to the risks arising from the fact that the two officers canvassed the incident after it happened and collaborated in formulating their notes. Moreover, the Court noted that the fact defence counsel failed to object to the juries instructions, was a reliable indicator that they perceived that the instructions were satisfactory.

The appeal was dismissed.

Dee Ferraro Limited v. Pellizzari
This case on appeal involved a review of a procedural ruling by a motions judge. The appellants, Dee Ferraro Limited appealed an order dismissing their motion for leave to amend the statement of claim.

Rule 26.01 of the Rules of Civil Procedure provides that the court shall grant leave to amend a pleading unless prejudice will result that cannot be compensated for by costs or an adjournment. The motion judge ruled that the appellants attempted to plead new facts and new causes of actions. He also held that the expiring of an intervening limitation period gave rise to a presumption of prejudice and that permitting the proposed amendments would unduly delay the trial, which would be unjust to the respondent.

After reviewing the motion judge's reasons and decision, the Court held that the motion judge erred in concluding that the proposed amendments added new causes of action. The the original pleading contained all the necessary facts to support the amendments. The purpose of the amendments was to claim additional forms of relief or to clarify the relief the appellants sought, based on the same facts as originally pleaded. The leading case that distinguished between pleading a new cause of action and pleading new or alternative remedies based on the same facts is Canadian Industries Ltd. v. Canadian National Railway Co.

The Court canvassed the broad allegations included in the statement of claim, including breach of contract, breach of fiduciary duties, fraud, negligence and a constructive trust over certain profits allegedly acquired by the respondent. The Court re-iterated that the proposed amendments did not add any material facts to those already pleaded. The most disputed amendment proposed was associated to the claims for a mandatory order, which required the respondent to transfer his one-third shareholding in Sherwood Forests Investments (Guelph) Ltd. ("SFI") to the appellant; and for the declaration of a constructive trust over proceeds and profits received by the respondent as a result of his breach of contract, as long as the claim related to the respondent's shareholding interest.

The respondent's position was that the appellants acknowledged in their original statement of claim that the respondent held shares in SFI. As a result, he claimed that effect of the proposed amendment was to question the respondent's share ownership, for the first time. The respondent's considered the proposed amendment to fundamentally alter the nature of the claims against him.

The Court allowed the appeal. They asserted that the appellants acknowledged that the respondent had shares in SFI but did not admit the shares were for the respondent's own benefit. In addition, the appellants pleaded that the respondent's entitlement to the shares was conditional on his management services. Therefore, the Court was of the view that the respondent's entitlement to shares was properly pleaded in the original statement of claim and that unrelated causes of actions were not asserted based on new facts. As a consequence, the Court concluded that the appellant's claims were not statute-barred and the amendments should have been permitted.

Brito v. Canac Kitchens

The issues contested by the appellant on appeal followed from the appellant's wrongful termination of the respondent's employment.

The respondent was a 24-year long employee with the appellant. He was terminated without cause from his job as a kitchen cabinet and door maker and wood workshop production lead-hand. His job duties included preparing, sanding and assembling cabinets and doors, collecting reports and supervising production in the wood shop. The appellant paid the respondent the statutory minimum of 32 weeks pay of salary in lieu of notice, severance and benefits for up to eight weeks. Further, a couple of weeks after being terminated by the appellant, the respondent found new employment. However, his new employer did not provide any disability benefits. This was in contrast to the appellant, which provided short term disability (STD) as well as long-term disability (LTD) benefits to its employees under a disability benefits plan (the "Plan").

Approximately eighteen months after commencing his new employment, the respondent was diagnosed with cancer and underwent surgery for the removal of his cancer shortly thereafter. Additionally, the respondent sued the appellant for wrongful dismissal and for STD and LTD disability benefits. He claimed he would have been entitled to these benefits but for his wrongful dismissal.

At trial, the trial judge concluded that the respondent was wrongfully terminated and awarded him 22 months worth of notice pay, STD benefits for 17 weeks, and LTD benefits thereafter, to age 65. Moreover, he awarded the respondent $15,000 for ancillary damages for the appellant's wrongful conduct concerning the respondent's termination and the litigation. The appellant appealed the trial judge's award of damages for lost LTD and the award for ancillary damages.

An employee must meet the requirements of "total disability" for the purpose of LTD benefits that the Plan provides. In order to meet this standard, an employee must demonstrate that he/she was prevented by restriction or lack of ability due to illness or injury from performing the essential duties of his own occupation during the qualifying period and two years following the qualified period and any occupation for which the employee is qualified or may reasonably become qualified by training after the aforementioned two year qualified period.

The appellant's position regarding disability benefits was that the respondent was never "totally disabled" within the meaning of the Plan in order to qualify for disability benefits after November 1, 2005. Additionally, the appellant claimed that the respondent did not present evidence at trial that demonstrated that he would remain disabled until his 65th birthday, the date when LTD benefits would terminate in accordance with the provision of the Plan. The trial judge did not accept the appellant's arguments and held that the respondent successfully discharged his evidentiary burden that he was "totally disabled" by viva voce and medical evidence.

The Court reviewed medical evidence from the respondent, which demonstrated that following the removal of his tracheostomy tube in June 2005, his breathing never returned to normal, he was unable to work due to reduction of his strength, intermittent loss of his voice and exposure to work environment dust. The Court noted other instances that demonstrated the respondent's inability to work due to medical reasons. Moreover, they declared that the appellant failed to call medical or other expert evidence to counter the respondent's medical evidence. Therefore, the Court stated that the trial judge's conclusion that the respondent discharged his evidentiary burden to establish his disability within the meaning of the Plan, was justified.

The appellant's second ground of appeal concerned the appellant's mitigation efforts. The appellant claimed that the respondent failed to engage in job re-training efforts and to seek alternative employment following March 2005. The Court held, nonetheless, the evidence at trial indicated that the respondent was unable to work after March 2005 due to his condition and restrictions imposed by his treating physicians. As a consequence, the Court stated that the respondent did not have an obligation to mitigate his damages by finding alternative employment since he was incapable of working. Further, there was no evidence that the respondent refused to take part in rehabilitation or any vocational programs.

Regarding the judge's award of ancillary damages to the respondent, the Court accepted the appellant's argument that the trial judge erred in granting this award. The trial judge utilized words such as "cavalier, malicious, reckless and outrageous" to describe the appellant's conduct in its treatment of the respondent on termination and during litigation. The Court noted that the respondent did not claim punitive damages in his statement of claim and that the respondent did not seek this relief in issue at trial. Therefore, the Court set aside the trial judge's $15,000 award for punitive damages to the respondent.

R. v. Morgan

The Crown appealed the respondent's acquittal and sought a new trial on the basis that the trial judge erred in his ruling that the respondent's (Calvin Morgan) s.8 Charter rights had been violated and that the evidence obtained pursuant to a search warrant should be excluded pursuant to s.24(2) of the Charter.

In late December 2008, masked and armed perpetrators invaded an apartment in Brampton. They carried a gun as well as machetes. There were three victims present at home during the invasion. One of the victims, Mr. Northcott suffered several wounds. The assailants stole cell phones, electronic equipment and various pieces of identification belonging to the victims. The police arrived at the scene and conducted an investigation.

In January 2009, the police obtained and executed a search warrant to search a residence on Abelard Avenue in Brampton. In the respondents' bedrooms, the police found the stolen property taken from the apartment in Brampton, the pieces of identification belonging to the victims and clothing stained with blood containing the DNA of Mr. Northcott.

At the conclusion of trial, the trial judge held that the information to obtain ("ITO"), which formed the foundation for the issuance of the search warrant, contained "extensive misinformation, misleading information and incomplete evidence" and affected the core of the evidence required for the issuing judge's decision. As a result, the trial judge concluded that the ITO only contained four relevant facts:

The Respondent, Calvin Morgan, phoned Ms. Caines on one occasion prior to the date of the date of the robbery from a phone number registered to the Abelard Avenue address;
There were fresh footprints found in the snow at approximately 10:45 p.m. on the night of the robbery, at the intersection of Pearson Road and Abelard Avenue;
Ms. Caines received a phone called registered to the Abelard residence, the morning after the robbery; and
One of the victims' cellular phones was located by Bell Canada within a half hour of the robbery at the intersection of Abelard Avenue and Pearson Road.

The trial judge concluded that the execution of the search warrant was in breach of the respondent's s.8 Charter right. The foregoing facts did not give the issuing judge the opportunity to find reasonable and probable grounds to believe that evidence of the home invasion would be found at the Abelard residence. Additionally, the trial judge held that as a result of the seriousness of the police's misconduct combined with the respondent's privacy interests in his home, the admission of the evidence obtained would bring the administration of justice into disrepute under s. 24(2) of the Charter.

The appellant's primary issue on appeal was that even after removing any misstatements in the ITO, there remained sufficient evidence supporting issuance of the search warrant.

In allowing the appeal, the Court noted much evidence, beyond the four facts listed by the trial judge, demonstrating a connection between the Abelard residence and the robbery. Bell Canada was able to place the cell phone near the Abelard residence. There were fresh footprints in the snow located directly in front of the Abelard Residence. The respondent matched the general description provided by the victims. The victims knew the respondent as one of only two African American men to have visited their apartment to purchase a small amount of marijuana. There was a connection between the respondent and the Abelard Residence. The respondent placed a phone call registered to the Abelard Residence prior to the robbery. The morning after the robbery, Ms. Caine received a phone call from the same number but was not home at the time. She notified the police because she found it odd that the respondent was aware that she worked during that time. The police did their due diligence and discovered that the telephone number provided by Ms. Caine was in fact registered to the Abelard residence.

Further, the Court noted that with the search warrant in hand, the burden on the police was not to prove, beyond a reasonable doubt, that evidence of the robbery would be recovered at the Abelard Residence. Instead, the relevant test to be applied when authorizing a search warrant, was set out in Araujo, where the Court stated:

... The question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

The additional facts, combined with the four reliable facts in the ITO, must be viewed in the totality of the circumstances. As a result, the Court held that the judge could have issued the search warrant on this basis. and the respondent failed to meet his burden to prove that on a balance of probabilities, the warrant could not have been issued.

Mady Development Corp. v. Rossetto

The appellant, Mr. Rossetto, worked as an executive with the respondent, Mady Developments Corp. During a three month period in 2007, the appellant allegedly diverted labour and materials, and used the respondent's funds to renovate his home. Upon discovering the appellant's wrongdoing, the respondent terminated his employment in late 2008.

The respondent subsequently commenced an action for damages of conversion, breach of employment contract, unjust enrichment and breach of fiduciary duty. The appellant counterclaimed in respect of the bonuses he was entitled to for 2007 and 2008. In order to resolve the parties' issues, they submitted their dispute to arbitration.

Following the conclusion of an arbitration hearing, the arbitrator awarded the respondent $546,452. Specifically, it received $315,452 for the misappropriated labour, materials and funds and $231,000 for the delay to one of the respondent's projects caused by the appellant's diversion of resources and labour. Furthermore, regarding the appellant's claim for bonuses, the arbitrator found that he was a trusted member of the respondent's small executive group. Since the appellant's employment contracted stated that he was entitled to an annual bonus equal to 30% of the respondent's profits after overhead, the arbitrator found that their relationship operated as a "true partnership". The arbitrator noted:

Rossetto's entitlement to an annual bonus was clearly an integral part of his contract with Mady from the very first day he entered into his employment.

Accordingly, the arbitrator awarded the appellant $364,661.33 in satisfaction of his unpaid bonuses for 2007 and 2008. The respondent subsequently appealed the arbitrator's decision that the appellant was entitled to his bonuses.

The appeal judge held that the arbitrator erred in law by failing to apply the remedies governing a breach of fiduciary duty, having found that the appellant and respondent were involved in a fiduciary relationship. The principal case that the appeal judge referred to was McBride Metal Fabricating Corp. v. H.W. Sales Company Inc. She stated,

The overriding principle is that a fiduciary is not entitled to compensation for the period of their wrongdoing.

Moreover, the appeal judge had held that the respondent should be returned to the position it would have been if the breach had not occurred. The only way this could be accomplished was to deny the appellant his bonus from the date of the breach onward. Further, she stated that had the respondent been aware of the appellant's wrongdoing at the time it occurred, it would have terminated his employment immediately.

In its review of the appeal judge's decision, the Court noted that she erroneously concluded that in all circumstances fiduciaries forfeit entitlement to compensation in the form of bonuses. The appeal judge overlooked the fact that equitable remedies are considered discretionary and a fiduciary's entitlements are dependent upon the facts before the court. Further, the Court stated that fiduciary relief aims to achieve two main goals: restitution and deterrence. Regarding the former, it is aimed at returning the beneficiary to the position it would have been in but for the fiduciary's breach. The purpose of deterrence is to prevent fiduciaries from benefiting from their wrongdoing and to maintain the integrity of the fiduciary relationship.

In analyzing the law concerning fiduciaries' right to compensation in the form of bonuses after committing faithless acts, the Court noted that the jurisprudence reinforces the common principle that equitable relief is discretionary and fact specific. The Court cited Mark Ellis' book, Fiduciary Duties in Canada, where he described the entitlement to compensation in the employment context:

It is well accepted that a principal will not be required to pay his agent a commission for transactions that are in breach of fiduciary duty. However, an employer is not free to withhold payment of wages due for past performance, even where the past performance may have involved a time when the employee was acting in breach of his fiduciary duty.

Further, the Court discussed the nature of bonuses, and noted the appellant's bonuses were significant and non-discretionary. As a result, the Court agreed with the arbitrator's decision that the appellant's bonuses were an integral part of his compensation under the employment contract. As such, the arbitrator's decision achieved the two main goals of fiduciary relief, restitution and deterrence.

The Court reversed the prior appeal ruling and reinstated the arbitrator's award.

- Alim Ramji, Toronto

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140 Law - Legal Headlines for February 03, 2012

2012-02-03T09:40:00.005-05:00

Here are the leading legal headlines for Friday, February 03, 2012 from Wise Law on Twitter:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Thursday, February 02, 2012

2012-02-02T09:23:00.005-05:00

Here are the leading legal headlines for Thursday, February 02, 2012 from Wise Law on Twitter:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Wednesday, February 1, 2012

2012-02-01T08:27:00.000-05:00

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, February 1, 2012:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Tuesday, January 31, 2012

2012-01-31T09:18:00.001-05:00

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, January 31, 2012:

- Rachel Spence, Law Clerk

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140 Law - Legal Headlines for Monday, January 30, 2012

2012-01-30T09:58:00.002-05:00

Here are the leading legal headlines for Monday, January 30, 2012 from Wise Law on Twitter:

- Rachel Spence, Law Clerk

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Ontario Human Rights Tribunal Digest: January 2012

2012-01-30T09:08:00.000-05:00

Each month, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

RULINGS ON DISCRIMINATION

Charlotte Vallee v. Fairweather Inc.

The Applicant, a 57-year old woman, filed an Application alleging discrimination in employment based on disability and age. Ms. Vallee alleged that these prohibited grounds were factors in the Fairweather's decision to eliminate her position as district sales manager. The Respondent failed to file a Response.

The Applicant cited several incidents of discrimination for which she sought substantial monetary compensation:

When the Applicant advised her supervisor that she required a period of medical leave, he commented that she had had a negative attitude in the past;
When the Applicant was on disability leave, the Applicant's supervisor communicated to staff a message to hire only "dumb, young, and good looking employees";
When the Applicant returned following her period of disability (one-year), the Applicant's supervisor stated she had felt abandoned by the Applicant; and
The Respondent offered the Applicant alternative employment, as an outlet store manager, a position she argued did not match her success, skills and experience.

The Tribunal had to rule based only on the Applicant's materials, as it did not have the benefit of responding materials and did not have the opportunity to question the respondent's witnesses in regards to the elimination of the Applicant's position.

The Tribunal proceeded to consider all the evidence, finding that widespread layoffs of employees, including the Applicant, and the fact that the Respondent had not replaced her, indicated a non-discriminatory basis for the elimination of the Applicant's job. However, the Tribunal found that other circumstances demonstrated that age and disability were factors in the Respondent's decision to eliminate the Applicant's position, holding as follows:

...other circumstances, including the "dumb, young, and good looking" hiring message and the supervisor's comments analogizing a medical leave to abandonment, suggest that the respondent took issue with the applicant's disability and age. I note also that, while the applicant was laid off, the respondent did not eliminate all district sales manager positions.

Accordingly, the Applicant was able to satisfy her onus to prove, on a balance of probabilities, that she had been subjected to discrimination in employment.

Of note, the Tribunal held that, even though the Applicant could not demonstrate that the "dumb, young, and good looking" hiring practice was directly applied to her, that did not prevent it from inferring that it had informed the respondent's staffing practices and that it was a factor in the respondent's decision to lay her off in all the circumstances.

The Tribunal requested further written submissions on the question of damages, and did not rule on the appropriate remedies at this juncture.

Fedda v. Tony Graham Motors

The Applicant, an apprentice mechanic, alleged discrimination by his employer on the basis of disability. The Applicant was involved in a car accident and was off work for several months. He suffered injuries to his eyes, lower back and neck.

Upon his return, he was placed on modified duties, including performing oil changes, checking tire pressure and lubricating door locks and hinges. Four months into his modified duties, the Applicant sent his supervisor an email stating that he wished to achieve his goal of becoming a full-licensed auto mechanic and would work hard to achieve that goal despite his physical limitations. The Respondent responded that he would not be moving into the shop to work on cars for the "forseeable future" and directed him to focus on taking care of his health. The Applicant took this to mean that his future prospects with the company were limited. Three weeks later, the Applicant was accused of stealing and terminated. The Applicant argued that this termination was a reprisal for his email and relied on the timing of events.

The Respondent took the position that it had terminated the Applicant for theft. The Applicant stated that he had not stolen, but that he had in his new role of Team Captain committed mistakes in record keeping (due to lack of proper training) which gave the impression of impropriety and that the Respondent was simply the charge as a pretext be rid of him in light of the email.

The Tribunal held that the timing of events was not enough to prove discrimination:

The applicant relies entirely on the timing of events. He states, as set out above, that roughly three weeks after he wrote the email above he was accused of stealing. The Applicant does not deny he made and that there was a real issue but states that the respondent used the accusation as a pretext to be rid of him in light of the email. However, the applicant also stated that in sending the email he was not asking the employer to do anything and was not suggesting any changes to the status quo. Further, he agreed that there was no new information in it - the employer had been aware of his limitations since his return in June.

The Tribunal agreed with the Applicant that perhaps the termination was not fair in the circumstances, but went on to hold that it does not have jurisdiction to deal with complaints of "unfairness":

The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent's alleged actions and a Code ground.

Blake Shearer v. The Royal Canadian Legion

The Applicant, a bar steward, alleged discrimination against the Respondent employer on the basis of disability. The Applicant had a acrimonious relationship with her superior which led to him taking a four-day, doctor approved, sick leave. The note from the doctor authorized a four to five day leave for "medical reasons". Upon on his return to work, the Applicant was terminated. Prior to the taking of this sick leave, the Applicant had not advised the Respondent of any medical health issues. The Applicantalleged that he had been terminated because of his disability that had required him to take the sick leave.

The Respondent alleged that the Applicant was terminated for economic reasons and that it did not know that the Applicant had a disability.

The Tribunal held that the Applicant had not met the required standard to prove she had a "disability" which required accommodation by the employer:

It is not clear from the Application or the testimony of the applicant whether he had a disability. The medical information is not specific and simply refers to "medical reasons". The applicant self-reports that he was stressed. The applicant provided no evidence, medical or otherwise, to indicate that he had a chronic condition or ongoing disability. The Tribunal has held that, in general, temporary illnesses are not considered to be disabilities under the Code.

Further, the Tribunal held that the evidence showed that the decision to termination the Applicant had been made before the Applicant's commencement of his sick leave and notification that he was having health issues.

Shahenaz Alibhai v. Aditya Birla Minacs Worldwide Inc.

In this case, the Applicant alleged age discrimination by the Respondent after not being hired as an advisor. She relied on the bald assertion that the Respondent only hires young advisors.

The Tribunal held that that fact, if true, was insufficient to support the conclusion that the applicant's right to be free of discrimination on the basis of age was infringed by the Respondent. The Tribunal noted that there was no allegations of age discrimination in the Applicant's Application that required a response from the Respondent.

Lorne Pardy v. John Graham

In this case, the Applicant alleged discrimination in employment on the basis of sexual orientation. The Respondent had used the word "faggot" in a conversation with the Applicant about an event that had been catered the night before, in referring to a meal that had been prepared by the Applicant and was the subject of a complaint by the person who had ordered it.

The Applicant argued that the Respondent's comment was a direct attack against him because the Applicant knew he was a gay man and knew that the Respondent had impugned other vulnerable groups in the past.

The Respondent claimed that the remark was just an unfortunate choice of words spoken in anger at the spur of the moment.

The Tribunal held that given the Respondent's previous behaviour in disparaging other vulnerable groups, it was fair for the Applicant to have viewed the Respondent's remark as a confirmation that the Respondent also disliked gay males for reason on the basis of their sexual orientation. The Tribunal found that this was enough to have poisoned the Applicant's work environment:

I find that the respondent was directing his comments at the applicant, with whom he appeared to still be angry. Whether or not he intended the word "faggot" to be a direct slight to the applicant, or was just an unfortunate choice of words spoken in anger, it had the effect of confirming the applicant's fears about the respondent's feelings about him as a gay man. Having poisoned the applicant's work environment, I find that the respondent discriminated against the applicant in employment on the basis of sexual orientation.

Mr. Pardy was awarded damages of $5,000.00.

PROCEDURAL RULINGS

Cottle v. Toronto Police Service

In this case, the Applicant alleged discrimination in employment on the basis of disability. The complaint focused on an alleged incident of discrimination when the applicant was told that she would not be reclassified to the position of Detective Constable due to her medical restrictions. The Application was filed July 15, 2011 even though the alleged incident occurred on June 16, 2004.

The Applicant argued that the delay was incurred in good faith; she had made numerous attempts to have the matter resolved internally through the organization's chain of command and was now bringing a legal proceeding as she had exhausted all the internal processes of the Respondent's without receiving appropriate redress.

The Tribunal held that this was not a valid justification for the delay:

It is apparent that the reason for the delay in filing the Application was because the applicant wanted to see if her issues could be resolved through the respondent's internal processes.

Nothing prevented the applicant from filing a timely Application under the Code while she pursued her complaint internally.

The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application.

- Robert Tanha, Toronto

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This Week at the Ontario Court of Appeal - January 30, 2012

2012-01-30T08:50:00.000-05:00

Each Week Wise Blog analyzes recent decisions from the Ontario Court of Appeal.

Placzek v. Green

The respondent, Carmen Placzek, was severely injured in a rear end collision. The appellant, Albert Green, was the driver of the vehicle that struck the respondent's vehicle. The respondent suffered from a severe case of fibromyalgia for many years prior to the accident. At trial, the appellant claimed that the fact that the respondent's physical problems affected her life after the accident was attributable to her fibromyalgia and not to the minor accident involving the parties.

At the outset of the trial, the trial judge struck the jury. She concluded that the appellant was liable. Moreover, the trial judge asserted that the injuries that the respondent suffered as a result of the accident caused her significant problems. As a result, the trial judge awarded the respondent $919,237 in damages, with a large portion going for her lost income and loss of future earnings.

There were two primary grounds of appeal submitted by the appellant. The first was the trial judge's decision to discharge the jury. The Court noted that the decision to discharge a jury is a discretionary one and they will defer to that exercise of discretion unless its exercise was characterized as arbitrary, capricious or unreasonable. The trial judge's decision to discharge the jury related to the complexity regarding various aspects of the evidence. For instance, since the respondent was a self-employed realtor, there were numerous factual variables that complicated the quantum of that claim. Also, there was complex medical, engineering and biomedical evidence. The Court did state, however, that trial judge erred by expressing concerns that the appellant's position on liability had an influence in striking the jury. Nevertheless, the Court was satisfied that the trial judge made it clear that his decision to strike the jury was associated with the complexity of the evidence.

The appellant's second ground of appeal concerned the trial judge's assessment of damages. Specifically, the appellant contended that the trial judge failed to quantify the damages based on a critical assessment of the evidence and instead picked a point somewhere in the middle between the various scenarios advanced by the parties. In rejecting the appellant's position, the Court declared that the trial judge correctly decided that the respondent's post-accident issues were attributable to the accident. The respondent's working life was shortened as she would only be able to work part time. The Court held that these findings were reasonably available on the evidence and impacted the quantum of damages, particularly damages relating to the calculation of the respondent's loss of income and future earnings.

North York Family Physicians Holdings Inc. v. 1482241 Ontario Limited

This appeal was based on a landlord-tenant dispute. The appellant, landlord, was the owner of a multi-storey office building and parking facility. The respondent, tenant, was a holding company that was created for the purpose of holding the lease. Its business was subletting the leased premises to Shoppers Drug Mart and operating 181 parking spaces. Additionally, the visitor parking area consisted of 156 parking spaces and was designated in the lease as patient parking for North York Family Health Team Inc., a company operated by the respondent, not Shoppers Drug Mart customers.

The appellant raised three issues on appeal. The first issue concerned the commencement date of the lease. The Court found no error in the application judge's analysis of this issue. The term "premises" included the demising walls. Two provisions contained in the lease dealt with the commencement date and both were based on delivery of the premises by the landlord. The demising walls were not constructed until June 22, 2009. As a result, the lease did not commence until the said date when the "premises" were delivered.

The second issue raised by the appellant related to the commencement date for the payment of rent for the parking spaces. The appellant's position was that the parking rent commencement date was April 2009. The Court noted that although the application judge erred in the interpretation of the term "tenant business" to mean the business of the sub-tenant, Shoppers Drug Mart, the judge nevertheless reached the correct verdict in the context of Article 4.02 of the lease. The Court reviewed the evidence and found that both parties treated the parking spaces as not turned over by the appellant until August 2009. Moreover, the appellant did not invoice the respondent for parking before the said date and also collected parking revenues until August 1, 2009 from the parking spaces that were leased to the tenant.

The Court held that the application judge did not err in her decision that the rent for parking spaces did not commence prior to August 2009. It was clear that the tenant's business (operating leased parking spaces) did not commence prior to August 2009.

The final issue advanced by the appellant was the landlord's obligation to pay the leasehold improvements allowance and whether that amount should be paid directly to the respondent or Shoppers Drug Mart. The application judge held that the appellant was required to pay the leasehold improvements to the tenant. However, the Court stated that in oral argument, both counsel agreed that the amount should be paid directly to Shoppers Drug Mart. Thus, the order of the application judge required amendment.

Musselman v. 875667 Ontario Inc. (Cities Bistro)

The primary issue on appeal was whether the respondent, landlord, was considered to be an occupier of the leased premises within the definition of "occupier", pursuant to the Occupiers' Liability Act ("Act"). The appellant slipped and fell on the stairs leading from the bathrooms to the main floor of the restaurant and suffered severe injuries. The question on appeal did not concern the trial judge's interpretation of "occupier" but rather the treatment of relevant evidence.

Counsel for the appellant argued that the trial judge misinterpreted three aspects of the evidence. Two of the misinterpretations concerned the substance of the evidence provided by the tenant, Brian Heasman. The appellant contended that Mr. Heasman's evidenced established that the respondent demonstrated the necessary responsibility for control over the premises to qualify it as an "occupier" under the Act. Furthermore, the appellant submitted that the trial judge misunderstood the meaning of clause 6 in the operative lease between the parties. Specifically, the appellant argued that clause 6 placed inspection and repair responsibilities on the respondent, thereby giving it sufficient control and responsibility over the premise to make it an "occupier" under the Act.

Regarding paragraph 6 of the parties' lease, the trial judge held that Mr. Heasman had complete responsibility for repair and maintenance of the premises. The Court asserted that the trial judge carefully examined the contents of the entire lease and correctly concluded that paragraph 6 put complete responsibility on the tenant for repair and maintenance. They also accepted the respondent's submission that the exclusion of "wear and tear" from Mr. Heasman's responsibility to maintain and repair did not place any obligation on the respondent to repair and inspect the property. Further, the Court noted that the lease alone was not determinative of the trial judge's decision that the respondent was not an occupier under the Act. The conduct of the parties over the previous years and the fact that they were in a landlord/tenant relationship was significant factor in the trial judge's determination whether the respondent was considered an occupier.

Additionally, counsel for the appellant raised the argument in his factum that the respondent could be liable for negligence aside from any negligence associated as an occupier. Since counsel did not make an oral argument in support of this submission and the fact the trial judge held the respondent was not an occupier under the Act, the Court found no reasonable basis to conclude that respondent was liable in negligence.

- Alim Ramji, Toronto

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140 Law - Legal Headlines for Friday, January 27, 2012

2012-01-27T09:09:00.001-05:00

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2012-01-26T09:42:00.001-05:00

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This Week at the Ontario Court of Appeal - January 13, 2012

2012-01-14T18:30:00.000-05:00

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.

In dismissing the appeal, the Court held that there was not a serious questioned to be determined. The appellant failed to provide any reasons why the common law prohibition on the creation of an interest in land from an incorporeal hereditament should not apply. Concerning the rule against perpetuities, the Court found that the appellant did not respond to the respondent's claim that the Agreement was void since it was in contravention of the rule.

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.

Elsegood v. Cambridge Spring Service

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.

It held that the appellants could not rely on s. 56(1) of the Act, which provides that the employee is terminated "for purposes of section 54". The Court disagreed with the employer's position that the respondent was not terminated for all purposes, but only for the purposes of s. 54. In fact, s. 56(1) prohibits an employer from terminating an employee without notice or payment in lieu of notice. The purpose of s. 54 is to prevent employers from avoiding their liabilities upon termination by pacing employees under a facade of indefinite layoff.

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.

Additionally, the Court found no legal errors in the trial judge's instructions to the jury, holding that the trial judge informed the jury that it was their recollection of the evidence that carried the most weight. More importantly, the jury heard the audiotape of the conversation between the undercover officer and the appellant as well as the appellant's explanation.

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.

In dismissing the appeal, the Court concluded that once it was determined that the respondent was wrongfully terminated, the determination of his bonus was straightforward and based on evidence that was mainly uncontested.

- Alim Ramji, Toronto

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Ontario Human Rights Tribunal Digest - December 1, 2011-January 1, 2012

2012-01-14T18:13:00.000-05:00

Each month, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

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.

With respect to the Applicant's position that he had been erroneously and falsely accused by the Respondents of giving free parking passes to cafeteria staff in violation of company policy on the basis of his ethnicity and race, in purported justification of his termination, the Tribunal concluded on all the evidence that the termination, while maybe not entirely fair, was not discriminatory:

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):
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.

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.

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).

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