onstrated a confusion of the issues of causation and mitigation that made it impossible
to engage in meaningful appellate review. In
light of the impact of this error on the
awards for loss of future earning capacity
and past wage loss, a new trial was required.
Wahl v. Sidhu, [2012] B.C.J. No.
460, British Columbia Court of Appeal,
L.S.G. Finch C.J.B.C., D.M. Smith and
K.C. MacKenzie JJ.A., March 8, 2012.
Digest No. 3147-010
EMPLOYMENT LAW
IMPLIED DUTIES OF EMPLOYEE
– Fiduciary duties.
Appeal by former employees from the
judgment finding Cass and Vandenberg
liable for breach of fiduciary duty, the calcu-
lation of damages, and the finding of joint
and several liability. Cross-appeal by the
employer from the denial of permanent
injunctive relief. GasTOPS was involved in
the maintenance of marine and aviation gas
turbine engines. It also provided engineer-
ing consulting services and developed
related computer software programs. In
October 1996, the individual appellants,
who were designers of GasTOPS core pro-
grams, resigned from their senior manage-
ment positions. One week later, Forsyth and
Brouse incorporated MxI Technologies and
Cass and Vandenberg immediately com-
menced employment with MxI. Within
hours of the resignations, several employees
met with the Forsyth and Brouse and subse-
quently became employed by MxI. After an
attempt at negotiating a co-operation and
subcontracting agreement between the
companies fell through, GasTOPS com-
menced an action against Forsyth, Brouse,
Cass, Vandenberg and MxI Technologies for
damages and injunctive relief for breach of
fiduciary duty and breach of contract. Gas-
TOPS alleged that that the personal appel-
lants failed to give reasonable notice of their
intention to resign and that they breached
their fiduciary duties and implied contrac-
tual obligations through misappropriation
of confidential information, trade secrets
and corporate opportunities, which the
appellants denied. The trial judge found that
the individual appellants breached their
fiduciary duties and implied contractual
obligations to Gas TOPS and that their two
weeks’ notice of resignation was insufficient.
He found that Forsyth and Brouse were
aware that their resignation would cause the
majority of employees within their division
to seek employment with their new com-
pany rather than remain with GasTOPS,
which caused serious consequences for Gas-
TOPS, as existing and potential customers
looked to MxI for technical advice because
Gas TOPS was unable to meet its contractual
obligations. In addition, he found that the
appellants misused GasTOPS’s confidential
information by making its trade secrets and
confidential business information available
to MxI and using such information to
develop and springboard the company’s
marketing strategy and competing products.
The trial judge found that the appellants
engaged in unfair competition by usurping
business relationships and soliciting identi-
cal contractual opportunities they had either
personally nurtured or became aware of in
the course of employment with GasTOPS.
He concluded that the length of time since
the resignations militated against injunctive
relief and that a disgorgement of profits
earned by MxI, in the amount of $12,306,495
and payable by the personal appellants,
adequately redressed GasTOPS’s loss. The
appellants sought to appeal the finding that
Cass and Vandenberg owed GasTOPS a
fiduciary duty as former employees. In addi-
tion, they challenged the 10-year period the
trial judge used to calculate the improper
profits to be disgorged and the inclusion of
certain amounts in the calculation of those
profits. Finally, they argued that there was
no basis for joint and several liability.
HELD: Appeal allowed. The development permit expired one year after it was
issued, on May 5, 2009. The Board failed to
consider on the merits whether the development permit had in fact expired. A proper
interpretation of the scope of the Board’s
jurisdiction should have given consideration
to the administrative structure as a whole.
Considering the ongoing validity of a
development permit engaged similar issues
to considering the suitability of conditions in
a development permit, to considering the
correctness of a stop work order issued if the
permit expired, and other development
issues. The Board erred in declining jurisdiction over this issue. The plain wording of s.
22.1 of the bylaw stated that a development
permit “shall no longer be valid after one
year from the date of approval of the permit”.
Niginan obtained its permit on May 5, 2008.
As no building permit was issued, and no
construction had commenced, the permit
expired one year later, on May 5, 2009.
McCauley Community League v.
Edmonton (City), [2012] A.J. No. 239,
Alberta Court of Appeal, F.F. Slatter
and J.D.B. McDonald JJ.A. and J.M.
Ross J. (ad hoc), March 13, 2012. Digest
No. 3146-012
TORT LAW
MUNICIPAL LAW
PLANNING AND DEVELOPMENT
– Development permits – Municipal
boards and tribunals – Jurisdiction.
Appeal by the McCauley Community
League from the Subdivision and Development Appeal Board’s dismissal of its appeal
from a development permit given to
Niginan Housing Ventures. Niginan owned
land that was zoned under the City of
Edmonton Zoning Bylaw 12800 as RA8
Medium Rise Apartment Zone. This zone
allowed apartment housing, but it did not
allow extended medical treatment services
as either a permitted or a discretionary use.
On May 5, 2008, the City issued a development permit to Niginan for the construction of a 42-unit building for individuals
with chronic substance abuse and other
health issues. As the City considered the
development residential, it was a permitted
use for the zone in question. Consequently,
no notification of the issuance of the permit
was given to anyone. In 2010, the Community League learned that the permit had
been issued. However, it believed that the
permit had expired because no construction had commenced within one year of
issuance. It asked the City to issue a stop
work order, which the City refused on the
basis that the permit had not expired. The
City was of the view that the time limit did
not start running until the permit became
valid and the permit did not become valid
until all of the conditions of approval were
met. The Community League appealed to
the Board. The Board obtained a legal opinion, which was not disclosed to the parties,
and concluded that because the City did not
make an appealable decision, the Board did
not have the jurisdiction to determine
whether the permit had expired.
DEFAMATION – Defamatory statements – What constitutes defamatory
words – Innuendo – Reliance on ordinary meaning – Defences – Justification
or truth – Publication – In mass media.
Appeal by the defendants from an award
of damages for defamation. The plaintiff was
a former senator and union executive. The
defendant Baines was a prominent news-
paper columnist who wrote primarily about
penny stocks and their promoters. The
remaining defendants were the editors and
publisher of the Vancouver Sun newspaper.
In 2008, the defendants wrote and published
a column about the plaintiff’s involvement in
events that occurred in the 1980s. The plain-
tiff commenced a claim alleging that the col-
umn was libelous and defamatory. He alleged
that the ordinary meaning and context of the
article was that he was guilty of corruption in
his capacity as a member of the executive of
the union, abused his position for personal
benefit and financial gain through providing
an executive jet to two fraudulent stock pro-
moters in exchange for shares in companies,
and had avoided conviction by a plea bargain
with the US government. The plaintiff
alleged that the column suggested a close
connection between himself and the promot-
ers’ fraudulent scheme. At trial the defend-
ants denied that the impugned words bore
the defamatory meanings attributed to them
and asserted that the literal meaning of the
words was true. The trial judge allowed the
plaintiff’s claim. He found that the plaintiff
was one of several persons utilized by the
promoters in conducting their fraudulent
stock-trading scheme and that the evidence
did not establish that the plaintiff received
free shares in any of the companies con-
trolled by the promoters. The trial judge
concluded that the inferential meaning of the
impugned words was defamatory as an
ordinary person would conclude that the
plaintiff was corrupt due to association with
two convicted criminals in their fraudulent
scheme and the receipt of some personal
benefit. He awarded the plaintiff general
damages of $30,000 on the basis that a sig-
nificant award was necessary to reflect the
seriousness of the defamatory assertions and
the defendants’ refusal to publish a retraction
or clarification. On appeal, the defendants
argued that the trial judge erred in finding
that the words complained of were capable of
being defamatory.
Classifieds
MISSING HEIRS
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Two newly renovated offices on
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FAMILY LAWYER
wanted for Barrie office of 4 city firm.
Generous fee split. Please email
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1235 BAY STREET
Executive office in Yorkville with
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DUNDAS & UNIVERSITY
Looking for one or two tenants to
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Contact Rose at 416-596-7025 or
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LAWYER
Dupont and Bathurst, Toronto.
Required for small Law Firm
specializing in Workplace Safety and
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