the parties’ children. After separation, the husband founded a medical supplies company. He earned between $225,000 and $270,000 between 2002 and 2004. In 2005 he sold his shares in the company for $1,010,000. His reported income for that year was $385,342. His start-up costs associated with a new business enterprise were substantial and his income decreased significantly. His net worth remained significant. The wife’s most recent income was $46,901, comprised of support and investment income. A 2007 medical report concluded that she was unable to work due to health issues and chronic pain. In 2003, the husband was ordered to pay spousal support of $2,400 per month. The trial judge found a change in both parties’ circumstances, including an improvement in the wife’s financial circumstances due to receipt of an inheritance. The judge retroactively varied support to $1,000 per month for January through May 2009. Support was terminated thereafter.

HELD: Appeal dismissed. Considerable deference was given to the determination of fact-based spousal support issues. There was no error in assessing the parties’ needs and means. The judge duly considered the wife’s medical evidence and her increased investment income, and concluded that her budget was exaggerated. The judge also considered the significant decrease in the husband’s income since the last hearing. The judge did not accord unreasonable weight to the requirement to become self-sufficient. The judge concluded that compensatory support was no longer warranted, as the wife no longer suffered any economic disadvantage arising from the marriage or its breakdown. The decision to terminate spousal support was within the judge’s discretion and was unassailable.

Scott v. Scott, [2011] N.B.J. No. 19,
N.B.C.A., per Larlee, Richard and
Quigg JJ.A., Jan. 27/11. Digest No.
3040-013 (Approx. 12 pp.)

sioner under the Personal Information Protection Act (“PIPA”) (Alta.) rather than as head of the Office. The adjudicator found that he had jurisdiction to consider AB’s complaint as against the Commissioner, and the letter in question was not exempted from review under para. 4(1)(d) of FOIPPA. The adjudicator also found that the Commissioner’s role as head of the Office was not limited to core administrative functions. The Commissioner sought review of the decision. The reviewing court affirmed the adjudicator’s decision.

HELD: Appeal allowed. The reviewing court’s interpretation of para. 4(1)(d) of FOIPPA was overly restrictive. The letter to AB was created by or for the Commissioner in the exercise of his duties as an adjudicator. As such, it was exempt from the scope of FOIPPA whether or not it was disseminated based on the plain ordinary meaning of para. 4(1)(d). The plain and ordinary meaning of para. 4(1)(d) was in harmony with s. 59 of FOIPPA and s. 41 of PIPA, which authorized disclosure of information by the Commissioner as necessary to conduct an investigation and establish grounds for the findings, as he did in this instance. Since the nature of AB’s complaint was with respect to the Commissioner’s letter, the adjudicator erred in assuming jurisdiction over the complaint.

Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator), [2011] A.J. No. 75, Alta. C.A., per Ritter J.A. (Bielby J.A. and Marceau J. (ad hoc) concurring), Feb. 3/11. Digest No. 3040-014 (Approx. 17 pp.)

ginal arbitrator to separate damages for
pain and suffering and mental distress
and to consider proper legal test for
punitive damages.

Application for judicial review of an arbitration award. Applicant had been the operator and manager of Toronto’s Pearson International Airport for many years. Respondent grievor was 47 years old and had been employed by applicant for 23 years. In October 2003 she injured her knee at work and was referred to a medical clinic. She continued full time employment until she had arthroscopic surgery to repair the meniscus in her knee in February 2004. Her orthopaedic surgeon gave her a medical note indicating she should be off work for four weeks. The grievor was living with another of the applicant’s employees, T, who was under surveillance for suspected sick leave abuse. When she was seen with him, the grievor was also put under surveillance. T was terminated in March 2004. The grievor returned to work the same month with a doctor’s note permitting her to work on modified duties. Applicant concluded she had been dishonest in reporting her absences and terminated her employment. An arbitrator concluded the grievor had been dismissed without just cause. She was awarded damages for the extended pain and suffering in her knee as well as damages for mental distress in the amount of $50,000. The grievor was awarded a further $50,000 in punitive damages.

HELD: Application allowed in part.
The dismissal was totally without cause.
The grievor was blameless. It was reason-
able to conclude that the conduct of the
employer had resulted in a loss of trust
that would prevent a viable employment
relationship. The employer acted in bad
faith in the manner of dismissal. Given
that the grievor was now in her fifties,
had 23 years of service and lost her sen-
iority, pension and other benefits based
on length of service, it could not be said
that the economic loss award fell outside
a range of reasonable, acceptable out-
comes. However, the arbitrator awarded a
global amount of $50,000 for pain,
suffering and mental distress. His failure
to separate the damages for pain and
suffering from the damages for mental
distress caused by the manner of dis-
missal made his award of $50,000
unreasonable and required that the issue
of damages for mental distress be sent
back to determine the appropriate quan-
tum of such damages. The arbitrator
found applicant’s conduct to be high
handed, malicious and arbitrary but
made no mention of the requirement of
an independent actionable wrong. There-
fore, it could not be said that he gave that
issue the careful consideration required.
The award of punitive damages could not
stand. The arbitrator was to reconsider
punitive damages in light of the decision.

MORTGAGES
JUDGMENT & ORDERS
FREEDOM OF
INFORMATION

EXEMPTIONS FROM DISCLOSURE – Letter from Information and Privacy Commissioner to complainant and to third parties named in complaint was exempt from review under Freedom of Information and Protection of Privacy Act, (Alta.).

Appeal from the dismissal of appellant Commissioner’s application to quash a ruling assuming jurisdiction by an adjudicator appointed under the Freedom of Information and Protection of Privacy Act (“FOIPPA”) (Alta.). AB asked the Commissioner to conduct an investigation concerning disclosure of his personal information in the course of complaints made to the Law Society of Alberta. The Commissioner exercised his discretion to refuse an investigation. The letter to AB was copied to the benchers that were the subject of AB’s complaints. The letter included copies of the complaint and subsequent correspondence. AB sought the appointment of an adjudicator under FOIPPA, alleging that the Commissioner breached FOIPPA by providing confidential details of his complaints to third parties. The Commissioner objected to the adjudicator’s jurisdiction to hear the matter on the basis that the impugned disclosure occurred in his capacity as a Commis-

ENFORCEMENT – Appellate court
upheld order requiring payment into
court of award obtained by respondent
in Ontario arbitration.

Appeal from an order requiring the payment into court of an award obtained by respondent in an Ontario arbitration pending the determination of appellant’s costs claim in discontinued proceedings in the U.K. The parties had a dispute about their respective legal rights. Appellant and the Ontario arbitrators took one position while respondent and the U.K. courts took another. Appellant was of the position that it would be contrary to public policy to allow respondent to enforce the arbitral award because respondent flouted the Ontario arbitration by bringing a proceeding in the U.K. flowing from the same commercial relationship.

HELD: Appeal dismissed. The difference in the parties’ positions did not rise to the level of public policy sufficient to defeat respondent’s right to enforce the arbitration award. Even if respondent was not entitled to re-litigate the refusal of its claim, its conduct in bringing the U.K. proceedings did not warrant a refusal by the Ontario court to allow its monetary award in arbitration to become a judgment.

Accentuate Ltd. v. Asigra Inc., [2011]
O.J. No. 454, Ont. C.A., per Sharpe,
Blair and Rouleau JJ.A., Feb. 4/11.
Digest No. 3040-015 (Approx. 3 pp.)
LIABILITY – Appellant was in best
position to prevent fraud with respect to
mortgage and should bear the loss.

Appeal from summary judgment dismissing appellant’s action and respondent bank’s counterclaim for damages in respect of moneys owed under a residential mortgage. The issue was who, as between two allegedly innocent victims of mortgage fraud, should bear the loss occasioned by the fraud. The motion judge found that appellant was in the best position to detect and prevent any fraud.

HELD: Appeal dismissed. A simple review by the bank of the mortgage documents submitted by or on behalf of appellant could not and did not reveal any prospect of fraud to the bank. Had appellant taken the simple precaution of reading the many documents she signed, the fraudulent nature of the mortgage transaction would have been immediately apparent. Appellant was not

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arbitration and remitted matter to ori-

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