HELD: Appeals dismissed. The WCB
policy and guidelines for occupational
health and safety of workers on fishing
vessels, as set out in the Regulations, were
consistent with the federal regulations and
guidelines on vessel stability. The pith and
substance of the impugned provisions was
the occupational health, safety and well-being of workers employed on fishing vessels, which was a matter of labour relations and working conditions and
presumptively fell within the exclusive
provincial jurisdiction over property and
civil rights under subs. 92( 13). While a
significant percentage of appellants’ activities involved excursions into waters outside the territorial boundaries of the province, there was no operational connectivity
to another jurisdiction. The impugned
provisions were not onerous requirements
that could be said to impair the core competence of the federal jurisdiction over
navigation and shipping. The doctrine of
interjurisdictional immunity did not apply
in these circumstances.
Jim Pattison Enterprises v. British
Columbia (Workers’ Compensation
Board), [2011] B.C.J. No. 134, B.C.C.A.,
per Smith J.A. (Bennett J.A. concurring), reasons concurring by Garson
J.A., Feb. 2/11. Digest No. 3040-006
(Approx. 47 pp.)
CONTRACTS
BREACH OF CONTRACT – Court
dismissed plaintiff’s action against
defendant Lottery Corporation seeking
full amount of prize despite fact that
there were numerous winners.
Action for damages for breach of contract. Plaintiff matched four out of the six
numbers selected in the Oct. 1, 2008 draw
of the Lotto 6/49 game. The total amount
of the prize pool was $1.3 million. Plaintiff
believed he was entitled to the full amount
of that prize pool. Over 20,000 in the draw
also matched four out of the six drawn
numbers. Defendant paid plaintiff his share
of the prize pool, which was $66.90. Plaintiff sued defendant for $3,182,667, which
he claimed was the amount he was entitled
to, as well as an additional $35.3 million in
punitive and exemplary damages.
HELD: Action dismissed. The rules of
the lottery provided that the prize pool was
based on a pari-mutual share, which was a
calculation where the total moneys allocated to a prize category were divided by
the total number of winners in that category. The rules provided that only the
rules, the conditions and explanations on
the tickets and other conditions established by defendant governed. Plaintiff’s
suggested interpretation of the contents of
defendant’s website description ran contrary to the plain and unambiguous meaning of the actual words. There was no
genuine issue requiring a trial.
Tal v. Ontario Lottery Corp./Lotto
649 OLG, [2011] O.J. No. 319, Ont.
S.C.J., Stinson J., Jan. 26/11. Digest No.
3040-007 (Approx. 13 pp.)
CORPORATIONS
SHAREHOLDERS – Court rejected
plaintiff’s assertion he was one-third
shareholder in defendant’s company.
Action for a declaration that plaintiff
was a one-third shareholder of a corpora-
tion he co-founded with defendant. The
dispute concerned ownership of the shares
of A Corp. The parties became acquainted
in 2002. Both were from the former Soviet
Union. G, also an immigrant, had experi-
ence in the transportation field and the
three of them discussed opening a new
transportation business together. P Inc.
was incorporated in January 2003. The
parties changed its name to A Inc. In Feb-
ruary 2003 defendant signed and filed
articles of amendment changing the name.
Plaintiff and G signed documents that
they wanted to be deleted from articles of
incorporation of P Inc. On Feb. 11, 2003
defendant incorporated a separate com-
pany under the name of A Corp. There
were never any share certificates issued.
On Feb. 13, 2003 defendant agreed to
transfer the ownership of A Inc. to the
corporate services agency that had incor-
porated the company in the first place. In
March 2007 all of the shares of A Corp.
were sold by defendant to a third party.
Plaintiff demanded a share of the sale pro-
ceeds, which was refused. Plaintiff argued
that he, defendant and G were to continue
as equal shareholders throughout the vari-
ous corporate changes. Defendant denied
plaintiff had any equity position in the
company and asserted that he was a paid
bookkeeper for the business, with limited
responsibilities and authority.
CROWN
PROCEEDINGS AGAINST CROWN
– Plaintiff’s action against Crown for
remedies under Charter statute-barred.
Action for a declaration that the admissibility of jailhouse informant evidence
was contrary to the Charter and for damages. In 1994 plaintiff was arrested and
charged with the murder of his brother.
He was convicted in 1996. In February
2002 the conviction was overturned on
the basis that the trial judge failed to give
a Vetrovec warning. The evidence of a jailhouse informant had been admitted into
evidence and relied upon by the Crown in
the first trial but not in the second trial.
Plaintiff was acquitted in 2004. The Crown
denied that there had been a breach of
plaintiff’s Charter rights and, in any event,
the action was statute-barred. There was
no evidence that plaintiff applied for bail
during his incarceration.
HELD: Action dismissed. Plaintiff dis-
covered his cause of action on July 3,
2004. There was a two year limitation
period under s. 4 of the Limitations Act
2002 (Ont.) which applied. Under the
Proceedings Against the Crown Act
(Ont.), plaintiff had to provide the Crown
with notice of the claim at least 67 days of
the commencement of the action. Plaintiff
agreed in argument that the commence-
ment of the action occurred on the 69th
day. By application of the Proceedings
Against the Crown Act, plaintiff’s action
had to be brought by Sept. 5, 2006. The
action was brought on Sept. 6, 2006. The
court had no jurisdiction to relieve against
the limitation period in s. 4 of the Limita-
tions Act 2002. The action was statute
barred. The fact that the action was a
Charter claim did not immunize it from
the application of the two Acts.
ENVIRONMENTAL LAW
SPILL – Fly rock from blasting site
found to be contaminant under Environ-
mental Protection Act (Ont.).
Appeal from the dismissal of a charge
against respondent of having discharged a
contaminant into the natural environment
contrary to subs. 15(1) of the
Environmental Protection Act (Ont.) and failing
to notify the Ministry of the Environment
(MOE). Defendant contracted with the
Ministry of Transportation (MTO) to carry
out controlled blasting operations at a
highway widening project. A blast was
initiated that sent rock debris flying
through the air, damaging a residential
house. No one was injured. The incident
was reported to the general contractor and
MTO but not to the MOE. The trial judge
decided it was inconceivable that the Act
would be interpreted so broadly as to consider this an “environmental event.”
HELD: Appeal allowed. The acquittal
was set aside and a conviction entered.
There was nothing in the Act that limited
the application of ss. 14 and 15 to the natural environment or an environmental
event as was decided by the trial judge. The
judge erred in law in concluding that characterizing fly-rock as a contaminant would
give rise to an absurd result. The Act was
not limited to an “environmental event.”
Ontario (Minister of the Environment) v. Castonguay Blasting Ltd.,
[2011] O.J. No. 364, Ont. S.C.J., Ray J.,
Jan. 28/11. Digest No. 3040-010
(Approx. 11 pp.)
FAMILY LAW
ABDUCTION – Mother ordered to
return child of marriage to Trinidad
and Tobago.
Application by respondent father for the
return of the parties’ daughter to Trinidad
and Tobago. Both parties were citizens of
Trinidad and Tobago. The father was also a
citizen of Canada. The mother received
permanent residence status in Canada in
June 2009 and the child was born in Canada in March 2010. By May 28, 2010, they
had all returned to Trinidad. The parties
lived separately and were unsuccessful at
reconciling marital differences. In September 2010, the father applied in Trinidad for
legal custody of the child. In October, the
mother flew to Ontario with the child where
she applied for custody. The mother submitted that she and the child were habitually
resident in Ontario at the relevant time as
she had returned to Trinidad for only a limited time and had always intended to return
to live in Ontario. The mother further submitted that the father was not exercising his
rights of custody at the time of removal and
that he consented to the removal to Ontario.
The father took the position that the child
was habitually resident in Trinidad at the
relevant time and that he did not consent to
the removal of the child to Ontario.
HELD: Application allowed. Even if the
father had at one time intended to return
to Ontario with the mother and their
child, according to the mother’s own evidence he no longer had such an intention
at the time of the removal. The child was
habitually resident in Trinidad immediately prior to the removal and the removal
was wrongful. Also, while the father’s
access to the child was limited in Trinidad,
he took several steps to assert his rights as
a parent and was therefore exercising his
rights of custody. Furthermore, the father
had made statements which were inconsistent with consenting to the mother
moving the child to Ontario.
Maharaj v. Maharajh, [2011] O.J.
No. 246, Ont. S.C.J., Mackinnon J.,
Jan. 21/11. Digest No. 3040-011
(Approx. 11 pp.)
PROPERTY – Wife was granted
unequal distribution of net family property in the amount of $90,000 to repay
husband’s share of money spent by wife
to pay down joint line of credit.
Application by the wife for an unequal
distribution of net family property in the
amount of $90,000. Cross-application by
the husband finding that the wife owed
occupation rent in the amount of $65,000.
The parties were married in 1996 and separated in March 2007. The husband did
not leave the matrimonial home until the
end of June 2007 when he moved into a
condominium which he had purchased.
The parties had two children whose principal residence was with the wife. She was
granted exclusive possession of the matrimonial home. In December 2006 the wife
received a gift of $200,000 from her
father out of which she paid $180,000 to
the bank to reduce the joint line of credit.
She claimed an unequal distribution of net
family property for half of that payment.
Respondent claimed for occupation rent
from July 2007.
HELD: Application granted. Cross-application dismissed. The husband made
no effort to sell the matrimonial home
until April 2010 at which time his motion
for partition and sale was unsuccessful. He
was given credit for the mortgage and
carrying charges on the home paid by him
against retroactive support payments. The
claim for occupation rent was without
merit. The gift the wife received from her
father was not property accumulated during cohabitation. The $180,000 was not
applied by the wife to the jointly owned
property. It seemed manifestly unjust to
allow the husband to take advantage of
any presumption that the parties intended
to benefit equally from the application of
those funds to reduce the mortgage on the
matrimonial property. Applicant was
entitled to an unequal distribution of net
family property in the amount of $90,000.
Ward v. Ward, [2011] O.J. No. 344,
Ont. S.C.J., Murray J., Jan. 27/11. Digest
No. 3040-012 (Approx. 9 pp.)
SPOUSAL SUPPORT – Appellate
court upheld order terminating hus-
band’s obligation to pay spousal support.
Appeal by the wife from an order terminating the husband’s obligation to pay
spousal support. The parties separated in
1993 after a 14-year marriage. They were
divorced in 1996. The husband was the
primary income provider during the marriage and the wife, a trained nurse, became
the primary homemaker and caregiver to
