The Lawyers Weekly - March 2, 2012

more, the goal of restitution was achieved through the arbitration award, as requiring Rossetto to compensate Mady for the time, money and resources he misappropriated, as well as the delay occasioned by his conduct, put Mady back in the same position it would have been in but for the breach.

Mady Development Corp. v. Rossetto,
[2012] O.J. No. 145, Ontario Court of
Appeal, D.H. Doherty, R.P. Armstrong
and A. Hoy JJ.A., January 17, 2012.
CRIMINAL LAW
YOUNG PERSONS – Publication,
records and information – Publication
bans and confidentiality orders.

Application by the Toronto Star for access to pre-sentence reports and a victim impact statement filed as exhibits in three young offender proceedings in which the young persons were found guilty of serious criminal offences. The newspaper wished to access the records in order to allow its reporter, who had covered the trial proceedings, to accurately describe what he heard in court and to properly report on the cases, including the bases upon which the court made its sentencing decisions.

HELD: Application dismissed. Since
the victim impact statement was read out
in its entirety in court, the reporter had
complete access and that aspect of the
application was moot. The protection of
the privacy of young persons fostered
respect for dignity, personal integrity and
autonomy of the young person. While
pre-sentence reports were not entirely
“private documents”, they were comprised
of the very private information of young
people and their families. The privacy of
these reports touched upon the liberty
and security interests of young persons.
The court was satisfied that labelling was
a serious issue, and that publication had
been found to implicate secondary devi-
ance. Refusing access to the pre-sentence
reports was necessary in order to prevent
a serious risk to the proper administra-
tion of justice because reasonably alterna-
tive measures would not prevent the risk.
The salutary effects of the publication
ban outweighed the deleterious effects on
the rights and interests of the parties and
the public, including the effects on the
right to free expression, the right of the
accused to a fair and public trial, and the
efficacy of the administration of justice.

EMPLOYMENT LAW
WRONGFUL DISMISSAL – Dis-
missal without cause – Remedies –
Punitive damages.

Appeal by the employer from a trial judgment awarding the respondent long-term disability benefits to age 65 and “ancillary” damages of $15,000 on account of the appellant’s wrongful conduct in respect of the respondent’s termination from employment and the litigation. The appellant dismissed the respondent in 2003 without cause after the respondent had worked for 24 years for the appellant. The appellant paid the respondent the minimum statutory requirement for pay in lieu of notice of 32 weeks and severance, plus benefits for eight weeks. The respondent found alternate employment that paid significantly less and provided no disability benefits. The appellant had provided both short-term disability and long-term disability benefits to its employees under a company-sponsored disability benefits plan. One and a half years after the respondent commenced his new employment, he was diagnosed with cancer of the larynx and required surgery and post-surgery treatment. The trial judge concluded that the respondent established that he was totally disabled.

HELD: Appeal allowed in part. There
was evidence before the trial judge which,
if accepted, supported the conclusion that
the respondent was totally disabled
within the meaning of the plan from and
after March 2005 to the date of trial, and
was likely to remain so to age 65. The trial
judge accepted, as he was entitled to do,
the evidence led by the respondent
regarding his total disability. There was
evidence at trial that the respondent was
unable to work after March 2005 due to
the restrictions imposed by his treating
physicians on suitable work environ-
ments, his continuing condition, and his
skill set. There was no evidence that the
respondent failed to mitigate by not seek-
ing alternate employment or re-training
after 2005. The award of “ancillary” dam-
ages was set aside. The trial judge’s rea-
sons indicated that this award was based
on what he characterized as “cavalier,
harsh, malicious, reckless, outrageous
and high-handed” conduct by the appel-
lant in its treatment of the respondent on
termination and during the litigation.
The impugned award, therefore, was in
the nature of punitive damages. The
respondent did not claim punitive dam-
ages in his statement of claim and did not
seek or put this relief in issue at trial.

FAMILY LAW

CHILD PROTECTION – Protective agencies and institutions – Supervision or guardianship – Permanent appointment or Crown wardship – Care and custody of children – Access by parents.

Alternative Dispute Resolution Directory

ROBBY BERNSTEIN MEDIATOR and ARBITRATOR

Upper Canada ADR Mediation & Arbitration

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Former C.E.O.
Corporate Director

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