had been discriminated against in the
workplace and that her professional reputation and position within MTO had been
affected. Complaints of discrimination
and sexual harassment plainly came
within the scope of the collective agreement as did complaints relating to discipline or dismissal of employees or the
application of the sick leave policy. If her
complaints extended to the union’s processing of her grievances she had the
statutory right to file a complaint. That
complaint, however, fell within the exclusive jurisdiction of the Ontario Labour
Relations Board. The court lacked jurisdiction to deal with applicant’s claims.
Kutsenko v. Ontario (Management
Board of Cabinet), [2011] O.J. No.
2389, Ont. S.C.J., Stinson J., May 26/11.
Digest No. 3109-017 (Approx. 7 pp.)
house by appellant and payment would be
made on completion of that assessment.
HELD: Appeal dismissed. The judge
understood the issues before him. He
made a clear factual finding that appellant’s obligation to pay the contract price
for the seed arose upon its determination
through in-house analysis that the germination count met the “eligibility for
certified 1 seed.” The principle of mitigation had no role to play in the claim, given
that respondent sued for the payment of a
contract debt and not for damages for
breach of contract.
Fischer v. Dyck Forages & Grasses
Ltd., [2011] M.J. No. 167, Man. C.A.,
per Hamilton J.A. (Freedman and
MacInnes JJ.A. concurring), June 1/11.
Digest No. 3109-020 (Approx. 4 pp.)
NEGLIGENCE
OCCUPIER’S LIABILITY – Sub-
rogated action against defendants with
respect to slip and fall of a letter carrier
on their property dismissed.
Motion by defendants for summary
judgment to dismiss plaintiff’s action. In
2007 BC, a letter carrier, slipped on defendants’ walkway while delivering mail to their
premises. She was injured and became
entitled to benefits under the Government
Employees Compensation Act. The Federal Crown became subrogated to her
rights and advanced a claim against
defendants in accordance with subs. 9( 3)
of the Act. Defendants submitted that they
maintained their property with a reasonable standard of care and that the slip and
subsequent injuries were caused by the
negligence of BC. They relied on the
Negligence Act (Ont.) and the Occupiers’ Liability Act (OLA) (Ont.).
HELD: Motion granted. The mere presence of snow and/or ice on a Canadian
walkway in February, did not, in itself, lead
to a conclusion that a homeowner failed to
meet his or her obligation under the OLA
to take such care that was reasonable to see
that persons entering the premises were
reasonably safe while on the premises. The
OLA did not impose a strict liability
regime. Rather, it created a positive obligation upon occupiers to ensure that those
who came on to their properties were reasonably safe. The onus of proof remained
on plaintiff to prove, on a balance of probabilities, that defendants failed to meet the
standard of reasonable care. BC, the
injured party, could not suggest any negligent act or omission and characterized the
property as well maintained. There was no
negligence or breach of statutory duty on
the part of defendants.
Canada (Attorney General) v. Ran-
ger, [2011] O.J. No. 2352, Ont. S.C.J.,
Power J., May 25/11. Digest No. 3109-
018 (Approx. 14 pp.)
REAL PROPERTY
CERTIFICATE OF PENDING LITI-
GATION – Court set aside order grant-
TO YOUR PAID PRINT SUBSCRIPTION Add Free Online Access
ing certificate of pending litigation
because of material non-disclosure and
because plaintiff’s only claim was for
damages.
Motion for an order discharging a certificate of pending litigation (CPL) against
the disputed property. Plaintiff’s parents
had acquired title to the disputed property for $100,500. They provided a down
payment of $25,500 and secured a mortgage for the balance. The parties agreed
when plaintiff and her son moved into the
residence that, in lieu of rent, plaintiff
would pay the mortgage, taxes, insurance,
repairs and utilities. In February 2010
plaintiff told her parents that if they did
not transfer the property into her name
she would stop paying the mortgage,
which she did. To resolve the impasse, the
parents and plaintiff entered into an offer
to purchase for plaintiff to purchase the
residence for $93,000. Plaintiff was
unable to obtain financing. In August
2010 the parents transferred a 20 per cent
interest in the property to their son. Plaintiff had to vacate the property. She sued
her family for damages and obtained an ex
parte order for a CPL.
HELD: Motion granted. Plaintiff
elected not to disclose to the judge who
granted the CPL the real reason she was
not in possession of the house: that
although the parties entered into an
agreement for the purchase of the property, the transaction did not close because
she could not obtain financing by the various dates set for closing. That constituted
material non-disclosure. Had the judge
been aware of that circumstance, he may
well not have ordered that a CPL issue. In
any event, plaintiff’s only claim was for
damages. There was no claim for possession of the property. There was no justification for preventing defendants from
dealing with the property as they saw fit.
The order granting the CPL was set aside.
Sepanary v. Sepanary, [2011] O.J. No.
2369, Ont. S.C.J., Pierce J., May 25/11.
Digest No. 3109-019 (Approx. 6 pp.)
WORKERS’ COMPENSATION
SALE OF GOODS
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REMEDIES OF SELLER – Appel-
lant owed respondent contract price for
seed purchased on basis of its own
assessment.
Appeal from a decision in favour of
respondent in an action to recover the
amount owing under a contract for the
sale of seed. Respondent agreed to sell
seed “eligible for certified 1 seed” to appellant for $1.50 per pound, less cleaning
costs. Appellant was entitled to and did
retain an analyst to test the germination
count of the seed after it was delivered to
ensure the germination count met the
required threshold. Satisfied by its analysis, appellant paid $150,000 on deposit
for the seed. When it began to receive
customer complaints about the germination count of some of the seed, appellant
purported to have the deposit applied in
full payment of the price for the seed. That
was equivalent to $1.25 per pound. Appellant returned the unsold seed, which
respondent resold. The trial judge granted
judgment to respondent for $21,007,
being the difference between the contract
price of $1.50 and $1.25 per pound for the
seed sold by appellant, less cleaning costs
for the returned seed. The judge found as
a fact that the contract contemplated the
assessment of the seed to determine the
germination count would be done in-
JUDICIAL REVIEW – Judicial
review of decision of Workers’ Compen-
sation Appeal Tribunal not available
where internal review was available.
Appeal from a procedural matter in
judicial review proceedings instituted
respondent regarding a decision of
respondent Appeal Tribunal. Respondent
J was unsuccessful in appealing from a
decision of appellant board denying his
entitlement to interest on benefits delayed
because of an initial decision. He petitioned the court to review the appeal
decision. At the hearing of his petition, J
was permitted to argue a ground not
argued before the Tribunal, specifically,
that a new interest policy implemented
by the board prior to the decision under
review was contrary to the right to interest conferred by s. 5 of the Workers’
Compensation Act (B.C.). The board
challenged J’s entitlement to raise that
issue. The judge found that, while it
would have been better if J had raised the
issue before the Tribunal, the Tribunal
had not been limited in the court proceedings in its ability to make all arguments supporting the interest policy and
as such, would not be prejudiced by per-mitting J’s judicial review to proceed on a
consideration of this issue. As a result of
the court’s finding in J’s favour on this
issue, the entire policy was remitted to
the board for reconsideration.
HELD: Appeal allowed. The decision
allowing J to raise the new ground for
judicial review was set aside and his petition was dismissed. The judge properly
interpreted the policy review process
within the board as precluding workers
such as J from obtaining binding rulings
to have invalid or improper policies struck
down. The Tribunal itself had no power
pursuant to the Act to override a decision
by the board of directors of the board. By
drafting the Act in that way, the legislature indicated its confidence in the board
of directors and its intention that the
board of directors’ decisions be afforded
significant deference and protection if
reviewed by the courts. The internal
review procedure available to J was
adequate. Further, no proper court review
of the new interest policy could be conducted in the absence of a complete review
of the policy by the Tribunal.
Johnson v. British Columbia (
Workers’ Compensation Board), [2011]
B.C.J. No. 983, B.C.C.A., per Ryan J.A.
(Low and Neilson JJ.A. concurring),
June 2/11. Digest No. 3109-021
(Approx. 18 pp.)
