Motion to dismiss plaintiffs’ action. A
subsidiary of defendant company operated an automotive parts plant. A collective agreement between the subsidiary
and defendant union governed employment relations with the workers. The collective agreement provided the company
with the right to determine the discontinuance of its operations. The agreement
also contained a grievance clause that
provided for binding arbitration. In November 2006, the company announced
that it was closing the plant. The company and the union entered into a closure
agreement that stipulated severance
benefits for the workers. In May 2009,
plaintiff workers commenced an action
against the company and the union for
damages for breach of the contract related
to the closure of the plant. The company
sought dismissal of the action on the
basis that the court lacked jurisdiction
over the subject matter of the dispute.
The company submitted that the proper
forum was either an arbitrator appointed
under the collective agreement, or the
Ontario Labour Relations Board. Plaintiffs argued the closure agreement fell
outside of the collective agreement.
HELD: Motion allowed. The closure
agreement was an ancillary document
between the company and the union that
had no operative effect unless it was
incorporated into the collective agree-
ment. The essential character of the
workers’ complaint was inadequate com-
pensation upon termination of their
employment. The termination payments
resulted from the company’s exercise of
its collective agreement rights to manage
employees and discontinue its operations.
Therefore, the dispute arose from the col-
lective agreement and the workers were
required to utilize the grievance proced-
ure under the collective agreement.
LIMITATION OF ACTIONS
with a lawyer regarding a possible claim.
The plaintiff contended that the limitation period did not begin to run until
June 2005, when her counsel obtained an
expert opinion that the physician had
fallen below the applicable standard of
care in performing the procedure. The
plaintiff contended that the two-year limitation period in s. 4 of the Limitations
Act (Ont.) applied, and that her action
was commenced within that period. At
issue was which limitation period was
applicable.
HELD: Motion allowed. During the
consultation with the plastic surgeon in
November 2003, plaintiff learned that
the physician had possibly misplaced the
implants and used the wrong type of
implants. The plastic surgeon provided
plaintiff with information regarding a
complaint to the College of Physicians
and Surgeons. There was no dispute that
plaintiff had sufficient knowledge that
her breast surgery had caused an injury,
loss or damage, and that a proceeding
was the appropriate means to seek a remedy. Following consultation with her lawyer in December 2003, the plaintiff
gained further information that a proceeding was the appropriate recourse.
Therefore, the one-year prescription period in the HPPC applied and plaintiff’s
claim was statute-barred.
Lawless v. Anderson, [2010] O.J. No.
2017, Ont. S.C.J., Brown J., May 13/10.
Digest No. 3007-019 (Approx. 16 pp.)
tion of a right-of-way so as to render it
invalid. There was evidence supporting
the view that the impugned condition was
necessary and reasonable as required by
subpara. 75( 1)(a)(ii). The application
judge did not err in failing to find that
para. 945( 1)(b) of the Local Government
Act applied, which would have required
compensation if the strip of land were
used to widen a road.
Kaim Developments Ltd. v. Mott,
[2010] B.C.J. No. 915, B.C.C.A., per
Saunders J.A. (Newbury and Bennett
JJ.A. concurring), May 18/10. Digest
No. 3007-020 (Approx. 12 pp.)
MEDICAL MALPRACTICE – Plain-
tiff ’s malpractice action was barred by the
one-year limitation period in the Health
Professions Procedural Code (Ont.).
Motion for summary judgment dismissing plaintiff’s action as statute-barred. In July 2003, defendant Dr. A
performed breast augmentation surgery
on plaintiff. Plaintiff alleged that the procedure was performed negligently, leaving her with severely deformed and ugly
breasts. She commenced an action for
damages in June 2005. Dr. A relied on
the one-year limitation period in subs.
89( 1) of the Health Professions Procedural Code (HPPC) (Ont.). He contended
that plaintiff knew or ought to have
known the facts upon which malpractice
or negligence was alleged by November
2003, the date on which she consulted
with a plastic surgeon, or by December
2003, the date on which she consulted
TAXATION
PLANNING & LAND USE
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SUBDIVISION – An approving offi-
cer was entitled to require, as a condi-
tion of subdivision approval, that
appellant dedicate a strip of land for
road purposes.
Appeal from the dismissal of appellant’s application for judicial review of the
decision of an approving officer to require,
as a condition of subdivision approval,
dedication for road purposes of a 20
metre wide strip of land. Appellant’s land
was between a main street and a railway
line. Possible improvements to the street
had been considered for some time prior
to appellant’s subdivision approval application. The Ministry of Transportation
wished to secure the 20 metre strip to
create a divided highway. But for the subdivision, the strip could have been
acquired for highway use only through
expropriation. Appellant sought judicial
review, arguing that the road dedication
requirement for approval of the subdivision, without compensation, was invalid.
The application judge upheld the approving officer’s decision.
HELD: Appeal dismissed. The condition was imposed by the approving officer
at the preliminary layout approval stage
of the subdivision approval process, an
informal vetting of the subdivision proposal before the final decision was made
on an application for subdivision.
Although the approving officer did not
refer to s. 75 of the Land Title Act (B.C.)
in his letter to appellant when informing
him of the subdivision condition, the
application judge was not barred from
considering the approving officer’s assertion at the hearing that s. 75 was authority for the requirement that appellant
dedicate a strip of land for highway purposes. The absence of a requirement for
construction or posting of security under
para. 75( 1)(b) did not colour the condi-
SALES TAX – Respondent taxpayer
was entitled to structure its affairs to
minimize its tax obligation and to util-
ize exemptions regarding fixtures.
Appeal from an appeal decision setting
aside an assessment of provincial sales
tax (PST). In 2000, respondent purchased $64,000,000 worth of equipment
for construction of a pipeline. Respondent devised a sale and leaseback plan to
minimize its obligation to pay PST.
Respondent purchased equipment for
same-day resale to a trust, the beneficiary
of which was one of its subsidiaries. The
trust leased the equipment back to
respondent and respondent made lease
payments pursuant to the agreement.
Respondent remitted tax on the lease
payments until completion of construction of the pipeline. The minister of small
business and revenue concluded that the
lease agreement was, in substance, a sale
rather than a lease of tangible personal
property, and was thus subject to PST.
Respondent was consequently assessed
$4,480,000 in PST. On appeal, respondent submitted that once the equipment
was buried in the ground it became a fixture which was no longer tangible personal property, which made the lease
payments no longer subject to PST.
Respondent’s appeal was allowed on the
basis that the minister’s determination
regarding the true nature of the agreement was incorrect. There was a written
lease agreement between the parties, title
to the equipment remained with the trust
and respondent actually made lease payments. The assessment was set aside. The
Crown appealed.
HELD: Appeal dismissed. The trial
judge made no error in setting aside the
assessment. On the date of the leaseback
to respondent, the equipment constituted tangible personal property, registered as such by the trust. The sale and
leaseback agreement thus constituted a
lease within the scope of the Social Service and Tax Act (B.C.). The legal structure of the agreement corresponded with
an intention to lease the equipment to
respondent. There was no basis to treat
the lease agreement as anything else. Any
apparent unfairness from a tax perspective resulted from the exemption of fixtures from tax liability as permitted
under the Act. It was open to respondent
to structure its affairs to pay tax as a lessee rather than as a purchaser and to take
advantage of the regulatory exemptions
for fixtures as it did.
Terasen Gas Ltd. v. British Colum-
bia, [2010] B.C.J. No. 956, B.C.C.A.,
per Lowry J.A. (Prowse and Frankel
JJ.A. concurring), May 21/10. Digest
No. 3007-021 (Approx. 7 pp.)
