HELD: Appeal dismissed. A reasonable jury could have concluded that an
award of punitive damages was rationally
required to punish the insurer’s misconduct. The jury was satisfied that the
insurer’s conduct of its investigation was
outrageous. By not following up on all of
the evidence relevant to the claim, withholding critical information from the
adjuster engaged to investigate the claim
and allowing the adjuster to present the
results of the investigation in a partisan,
biased and unobjective manner, the
insurer’s actions were exceptional. The
jury was justified in imposing an exceptional remedy.
Kings Mutual Insurance Co. v. Acker-
mann, [2010] N.S.J. No. 255, N.S.C.A.,
per Hamilton J.A. (Saunders and
Fichaud JJ.A. concurring), May 04/10.
Digest No. 3005-012 (Approx. 10 pp.)
EMPLOYMENT
& DISMISSAL LAW
WRONGFUL DISMISSAL – Where
plaintiff’s problems at work were
related to the death of his wife, the
employer did not demonstrate just
cause for his dismissal.
Action for damages for wrongful dismissal. Plaintiff was terminated from his
employment with defendant on Aug. 3,
2005. At the time, he was 43 and earning
$21.69 per hour as a machine operator.
Prior to 2002, he had only received one
discipline notice. His wife died that year,
leaving him a single parent of five children. Subsequently, he committed various
infractions, including a persistent course
of conduct with respect to absences and
lateness as well as recurring lapses in
attention to quality control which were
essential to the satisfactory performance
of his duties. He was terminated on Aug. 5,
2004 after his fourth discipline notice.
HELD: Action allowed. A review of
plaintiff’s employment and medical records indicated he was profoundly affected
by the loss of his wife. Management was
aware of his personal difficulties arising
from her death, the single parenting of
their five children and his mother’s ill
health. An important part of the progressive discipline policy provided that all
suspensions and dismissals were subject to
review by management and the employees’
committee. No review was conducted in
this case. The evidence supported the conclusion that plaintiff was overwhelmed by
personal circumstances to such an extent
that his performance at work was adversely
impacted. It did not establish he was recklessly or wilfully disregarding his duties
and obligations as an employee. Had a
proper review been undertaken it would
have discovered he was suffering from
major depression and qualified for short-term disability. Assistance through treatment would have been the appropriate
course of action. There was not just cause
for dismissal. Plaintiff was awarded
$23,983, less his actual earnings of
$2,800, and any disability benefits
received subsequent to Aug. 3, 2005.
Jazarevic v. Schaeffler Canada Inc.,
[2010] O.J. No. 1804, Ont. S.C.J.,
Haines J., Apr. 30/10. Digest No. 3005-
013 (Approx. 6 pp.)
FAMILY LAW
ended in August 2007 after applicant
found out that respondent could not sponsor her to stay in Canada. Although applicant and her daughter continued to reside
in the same home with him, respondent
alleged that the couple’s relationship had
ended. He also alleged that he never
intended to treat applicant’s daughter as
his own and that the wife never encouraged such a relationship.
HELD: Action dismissed. The parties
lived together from August 2005 to July
2007. Respondent did not reside with
applicant in her apartment in 2004 and
2005. Although he visited the applicant
and sometimes stayed overnight, he maintained his own residence. The parties commenced cohabitation in August 2005 and
ceased to cohabit in July 2007. Applicant
was not a spouse pursuant to the Family
Law Act (Ont.). The court accepted
respondent’s evidence that he did not
intend to treat applicant’s daughter as his
stepdaughter. His intention in that regard
was not only established by his actual state
of mind, but also by his objectively viewed
conduct in the context of his relationship
with applicant.
Robinson v. Birch, [2010] O.J. No.
1725, Ont. S.C.J., Mc Watt J., Apr. 27/10.
Digest No. 3005-015 (Approx. 10 pp.)
INSURANCE
(MOTOR VEHICLE)
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CHILD WELFARE – The appellate
court upheld an order for permanent
guardianship of two children.
Appeal by the natural parents of two
children from a permanent guardianship
order, placing the children in the care of
respondent Director. The children were
initially placed in the Director’s care on
Sept. 30, 2006, under a custody agreement with the parents. On Dec. 19, 2006,
the agreement was replaced by a three-month consent temporary guardianship
order. That was replaced by a six-month
temporary guardianship order. At a review
of the existing order in October 2008, the
judge found the parents had failed to
address problems with addiction, domestic violence, employment and housing that
were the reasons for the initial apprehension of their children, despite the numerous supports provided to them by the
Director. He declined to grant a further
temporary guardianship order, because
the exceptional circumstances required
were not present. On appeal, the parents
adduced fresh evidence showing that they
were living in a home suitable for their
family, that the father had obtained
employment and the mother planned to
apply for social assistance, and that they
had been drug and alcohol free since July
2009. They had received some counseling
and that there had been no further incidents of domestic violence. The Director
adduced fresh evidence suggesting that
substance abuse, domestic violence and
reluctance to take advantage of available
supports remained concerns. The Director
was also concerned about the presence of
the children’s paternal grandmother in the
home.
HELD: Appeal dismissed. The only way
the appeal could have been allowed was if
the evidence convinced the court that the
children could have been returned to the
parents within three months. The fresh
evidence showed there remained real and
significant concerns regarding addictions,
mental health and domestic violence.
R.B. v. Alberta (Director of Child,
Youth and Family Enhancement),
[2010] A.J. No. 488, Alta. C.A., per
McFadyen and Ritter JJ.A., reasons dis-
senting by Berger J.A., May 03/10.
Digest No. 3005-014 (Approx. 8 pp.)
COVERAGE – The third party
insurer was obliged to defend and
indemnify both individual defendants
against plaintiff’s claim for damages.
Motion for summary judgment on a
third party claim. The action arose out of
personal injuries allegedly suffered by
plaintiff in a motor vehicle accident with a
vehicle registered to defendant A and
driven by defendant Z. Defendant insurer,
who was plaintiff’s insurer, sought a declaration that a policy issued by the third
party insurer ought to respond to plaintiff’s claim on behalf of both A and Z. A
alleged that she sold the vehicle to Z one or
two days prior to the accident. The third
party insurer stated that A, its insured,
had no liability for plaintiff’s losses and
asserted that it fell on defendant insurer to
respond to the claim.
HELD: Motion allowed. The accident
occurred during the period in time that Z
used the vehicle as a guest driver. Plaintiff’s
action against her insurer was also dismissed. The third party insurer was obliged
to defend and indemnify A. She left the
insurance card in the vehicle and the
licence plates on the vehicle for the benefit
and use of Z, until he was able or decided
to register the vehicle in his own name.
Martin v. Zivkovic, [2010] O.J. No.
1688, Ont. S.C.J., Harris J., Apr. 26/10.
Digest No. 3005-016 (Approx. 7 pp.)
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COMMON LAW SPOUSES – The
court found that the parties were not
common law spouses and that
respondent did not treat applicant’s
child as his daughter.
Trial to determine the length of the parties’ cohabitation for spousal support purposes and whether respondent demonstrated a settled intention to treat
applicant’s 15-year-old daughter as a child
of his own family for child support purposes. The parties met in 2003 and separated in 2008. Applicant claimed that they
cohabited from June 2004 to 2008.
Respondent denied having lived with
applicant until he purchased a house and
she moved in with him in August 2005.
Respondent alleged that their relationship
TERMINATION OF TENANCY –
The Landlord and Tenant Board acted
unfairly when it refused to grant appel-
lant an adjournment so he could obtain
new representation.
Appeal from a decision of the Landlord
and Tenant Board granting respondent
landlord’s application to terminate appellant tenant’s tenancy for non-payment of
rent. Appellant had brought applications
before the Board for an order that respond-
