CIVIL LITIGATION
CIVIL PROCEDURE – Limitation of
actions – Time – Accrual of cause of action.
Application by Andison for leave to
commence an action against his solicitor,
Katz, pursuant to s. 14(1) of the Limitation
of Actions Act. The applicant and Brandt
commenced cohabitation in 1995. Katz
was retained by the applicant to draft a
cohabitation agreement. The agreement
was never finalized, as the applicant and
Brandt married in 1997. The applicant
instead instructed Katz to convert the
cohabitation agreement into a prenuptial
agreement. The agreement contemplated
two scenarios involving different sets of
benefits based on either a marriage breakdown or the applicant’s death. The agreement was signed in April 1997. The marriage ended in February 2004. The
applicant commenced divorce proceedings. Brandt argued that the provisions in
the prenuptial agreement purporting to
waive her entitlement to spousal support
or property division were of no force and
effect. An issue arose as to whether the two
scenarios described in the prenuptial agreement provided for cumulative benefits, or
alternative benefits as per the applicant’s
instructions to Katz. In October 2005,
notice was sent of Katz’s potential negligence to her firm. In 2007, the matter was
set for trial. In 2008, a judge refused the
applicant’s request to adduce extrinsic parole evidence regarding the prenuptial
agreement. The judge’s reasons indicated
that the prenuptial agreement would likely
be interpreted in Brandt’s favour and the
applicant negotiated a settlement. In February 2010, the applicant proposed to commence a professional negligence action
against Katz. The applicant submitted that
the judge’s ruling and subsequent settlement were the determinative dates for calculating the limitation period. Katz argued
that the material facts were known to the
applicant in October 2005, when notice
was given of her potential negligence.
HELD: Application dismissed. It was
uncontradicted that the applicant’s divorce
lawyer raised concerns with the drafting of
the prenuptial agreement in 2005 and saw fit
to put Katz’s firm on notice of a potential
professional negligence claim. Based on the
fact and content of the correspondence at
that time, it was reasonable to assume that
the applicant had knowledge of Katz’s breach
of duty and the resulting harm in the immediate form of legal costs, as well as the potential
for further damages if Brandt was to receive
a favourable interpretation of the agreement.
By August 2007, Brandt’s position regarding
the interpretation of the agreement was clear
and unequivocal. The extent of the damages
determined at the time of the 2008 settlement was not a material fact. By 2007, the
applicant had incurred damages by way of
legal fees and was aware that further damages might flow from Katz’s negligence. The
predicate application was filed beyond the
12-month period stated in s. 14(1) of the Act.
Consequently, it was dismissed with costs.
Andison v. Katz, [2012] M.J. No.
78, Manitoba Court of Queen’s Bench,
D.P. Bryk J., February 28, 2012. Digest
No. 3147-001
CIVIL PROCEDURE – Parties – Class
or representative actions – Certification
– Common interests and issues – Defin-
ition of class – Representative plaintiff.
Application by Dominguez for an order
certifying an action as a class proceeding on
behalf of current and former employees of
the defendants, Denny’s Restaurants and
Dencan Restaurants, in British Columbia,
who came to Canada under a temporary
foreign worker program on or after December 1, 2006. In 2008, Dominguez was
recruited by the defendants from her home
in the Philippines to be a temporary foreign
worker in one of the Denny’s restaurants
operated by the defendants. She came to
Canada through the Temporary Foreign
Worker Program (“TFWP”), a federal government program. Dominguez was
required to send her résumé to International Caregiver Employment Agency
(“ICEA”) to begin the process to enable her
to come to Canada. ICEA in turn operated
its recruitment activities in the Philippines
through Luzern International Manpower
Services Corporation. The majority of the
putative class members were recruited
from the Philippines, through ICEA and
Luzern under the TFWP. All of the putative
class members applying for positions with
the defendants through ICEA and/or
Luzern were required to pay substantial
fees in order to proceed with and complete
the hiring process. Dominguez claimed that
the defendants failed to provide the plaintiffs with as much work as promised, failed
to pay them overtime for hours worked,
and failed to reimburse them for expenses
relating to their employment, such as travel
expenses from the Philippines and agency
recruitment fees. She claimed that, as a
result, they suffered damages arising from
the breach of contract (including breach of
duties of good faith and fair dealing on the
part of the defendants) and breach of fiduciary duty. She also alleged that the defendants were unjustly enriched by their nonpayment of these wages and other expenses.
Dominguez further alleged that these
breaches were systemic in that the defendants failed to implement the necessary systems to ensure that she and other employees were appropriately compensated.
HELD: Application allowed. The
pleadings disclosed causes of action. There
was an identifiable class of approximately
75 people, both residing in British Colum-
bia and elsewhere, and Dominguez was in
a position to fairly and adequately repre-
sent the interests of the resident and non-
resident subclasses. The common issues
were shared by all class members, and
separate representation was not required
at this stage. The agency issues were com-
mon issues and would not require a
detailed examination of each employee’s
circumstances or evidence in that the
focus would be on the agreements and
dealings between ICEA and Luzern and
the defendants. A determination as to
whether they were acting as agents of the
defendants and, if so, whether the defend-
ants liable to repay the agency fees, would
materially advance the litigation in rela-
tion to most of the class. Although there
were separate contracts with each class
member, there was sufficient commonality
among the contracts to raise the same
issues, such that a decision on the inter-
pretation of the terms would be of assist-
ance in understanding the scope of the
contractual undertakings of the defend-
ants in relation to the class members.
There was sufficient evidence or a basis in
fact to support a certification of the com-
mon contract issues, which included the
duty of good faith and fair dealing. The
issues relating to breach of fiduciary duty
were common issues. The breach of fiduci-
ary duty claim was advanced on the basis
of the shared experience of the temporary
foreign workers. A consideration of that
issue would involve a review of the rel-
evant contract terms and the circum-
stances which directly arose from the
employment relationship with the defend-
ants and which affected all of them. These
factors did not depend on any individual
assessment of each class member. The
claims of unjust enrichment were com-
mon issues with the proviso that it was to
be determined whether or not there was
juristic reason for the enrichment. The
proposed issues relating to systemic
defects were proper common issues.
Dominguez satisfied the low evidentiary
burden to suggest that hours were not
recorded properly and even if recorded,
overtime was not paid. The proposed
issues concerning the assessment of dam-
ages on a class-wide basis and the aggre-
gate and punitive damages were proper
common issues that would advance the
litigation. A class proceeding was the pref-
erable procedure. It would save judicial
resources, provide access to justice for
vulnerable temporary workers, and pro-
mote behaviour modification.
CONSTITUTIONAL LAW
CANADIAN CHARTER OF RIGHTS
AND FREEDOMS – Legal rights – Pro-
tection against unreasonable search and
seizure – Remedies for denial of rights.
Application by tobacco manufacturer for
the return of a truck load of cigarettes
seized by the Minister. The applicant manufactured tobacco products on a First
Nations Reserve and sold unmarked cigarettes to purchasers on reserves, as well as
in other countries. The applicant held all
the necessary permits and filed monthly
reports with the Minister. The driver transporting the cigarettes was stopped and
presented an expired Interjurisdictional
Transporter Registration Certificate. The
driver offered to get the current permit, but
the officer called the Ministry. The officer
spoke to a senior investigator who purportedly authorized him to search the van and
seize any tobacco products. The officer
testified that he was not aware of any cigarette manufacturing on the reserve and he
stopped the van for traffic safety purposes.
HELD: Application allowed. The inves-
tigator lacked the authority to authorize the
search and seizure. The cigarettes were not
in plain view and were not the reason for
the traffic stop. The investigator confirmed
that the permit had been renewed for 2010,
yet failed to convey this information to the
officer. The investigator authorized the
search and seizure on his belief that there
were “some problems” with the permit.
There were no reasonable and probable
grounds for the search, which resulted in
the driver being detained for two and a half
hours, so it constituted a s. 8 Charter viola-
tion. The return of the seized products was
the appropriate remedy.
CONTRACTS
PERFORMANCE AND DISCHARGE
– Termination – By notice – Breach of
contract – Fundamental breach – Misrepresentation – What constitutes –
Fraudulent misrepresentation.
Action by a geology company, Hungry
Hill Geological Ltd., for unpaid monies
owing under an independent contractor
agreement and for damages for failure to
honour an independent stock option
agreement. Counterclaim by a mining
company, TTM Resource Management,
for damages for misrepresentation and
overpayment for services provided. TTM
was a public mining company that owned
a mining project in British Columbia. In
2007, after a falling out with the company
it was using for the drilling, TTM hired
Beck, who had worked on the site as a
geologist, away from the drilling company.
Beck indicated that he was interested, but
was not a professional geoscientist. He
and his wife incorporated Hungry Hill,
and Hungry Hill entered into agreements
with TTM to provide geological services to
the mining project for $18,000 per month
plus expenses and an option to purchase
200,000 shares. Thereafter, Hungry Hill
provided invoices for its wages and
expenses. After a dispute arose between
the parties, TTM accused Hungry Hill of
charging exorbitant rates and surcharges,
and Beck’s wife terminated her position as
chief operating officer. Beck continued to
work for TTM through Hungry Hill until
TTM terminated the contract. At the time
that the contract was terminated, there
were outstanding invoices. When TTM
learned that neither Beck nor his wife held
a B.Sc. in geology, he decided not to pay
the amount owing on the invoices. Hungry
Hill claimed it was owed $110,259 in outstanding invoices and 15 per cent interest.
In addition, it claimed a loss of profit of
$146,000 resulting from its loss of opportunity to exercise the stock option. TTM
denied that it owned any money to Hungry Hill under either agreement and
alleged that it had just cause to terminate
both contracts for express or implied misrepresentations of one of the principals of
Hungry Hill and misrepresenting, inflating and overcharging for the value of services Hungry Hill provided.
HELD: Action allowed in part and
counterclaim dismissed. The agreement
provided that Hungry Hill was entitled to
