The Lawyers Weekly - May 4, 2012

controlled substance. Constable Maetche
testified that he formed reasonable and
probable grounds that there was a con-
trolled substance in the vehicle, and that
Squire was in possession of proceeds of
crime. Squire was arrested for both offences.
Constable Maetche read Squire his Charter
rights and the police caution. Squire indi-
cated he understood his rights and that he
wanted to contact a lawyer. During the
search of the vehicle, Constable Maetche
discovered three large bundles of $27,020
and formed the opinion that this currency
was proceeds of crime. No illicit drugs were
discovered in the truck. Squire signed a
Statement of Relinquishment while he was
still located in the back of the police vehicle,
and without having spoken with counsel in
spite of his indicated desire to do so. He was
then released without charge. The Crown
subsequently brought proceedings for legal
forfeiture, alleging the money was proceeds
of crime, and obtained an ex parte restraint
order against the seized property pursuant
to the Act.
HELD: Application dismissed. The
restraint order was vacated and declared a
nullity, and the Crown was ordered to return
the seized property to Squire forthwith. The
factors identified by Constable Maetche did
not rise to the level of reasonable suspicion.
His observations were not probative that
Squire was involved in any criminality. The
police lacked a lawful basis to detain Squire
for investigative purposes unrelated to the
traffic stop or to deploy the police dog.
Therefore, the evidence acquired from
Squire during his investigative interroga-
tion and the evidence relating to the police
dog’s positive indication was unlawfully
obtained in breach of Squire’s ss. 8 and 9
Charter rights. Squire also was denied his
right to counsel, as he was never provided
with an opportunity to consult counsel.
That breach arose at the point when Squire
was arrested and indicated his desire to
speak with a lawyer without any steps being
taken by Constable Maetche, or any other
officer, to facilitate that request. The impact
of the various breaches on Squire’s Charter
protected interests was serious and favoured
exclusion of the evidence. Admitting any
evidence obtained in breach of Squire’s
Charter rights would have brought the
administration of justice into disrepute. In
the result, all references to Squire’s state-
ments made to the police during his interro-
gation in the back of Constable Maetche’s
police vehicle, the seized property and all
derivative evidence related thereto, the
police dog’s positive indication of the pres-
ence of an odour relating to an illicit sub-
stance, and the Statement of Relinquish-
ment were all excluded from consideration
during any part of the civil forfeiture pro-
ceeding. As a result, the restraint order
could not have properly issued.
Alberta (Minister of Justice and
Attorney General) v. Squire, [2012] A.J.
No. 316, Alberta Court of Queen’s
Bench, W.P. Sullivan J., March 21, 2012.
Digest No. 3201-004
EMPLOYMENT LAW
WRONGFUL DISMISSAL – Dis-
missal without cause – Reasonable
notice period or wages in lieu – Length
of service – Wrongful dismissal dam-
ages.
Action by the plaintiff against the defend-
ant for damages for wrongful dismissal. The
plaintiff, age 46, worked for the defendant
physician as a medical secretary for 12 years.
She was terminated by way of a letter that
provided eight weeks’ working notice. The
letter outlined a list of reasons for the dis-
missal related to performance issues. The
issues included management of the phone
lines, filing, and attendance issues. One
month prior to dismissal, the defendant
wrote a letter to the plaintiff contending that
she had been erroneously overpaid, receiv-
ing $54,000 per year instead of $40,000 per
year due to a mix-up between net and gross
pay, and that her salary would be adjusted
accordingly. The plaintiff submitted that the
performance issues were without merit. She
contended that the work atmosphere had
become poisoned by the defendant’s new
wife inserting herself into the management
of the clinic. She took medical leave upon
receipt of the termination letter. She found
new work approximately six months later.
The plaintiff took the position that there was
no cause for her dismissal. She also took the
position that her length of service was 19
years, as she was employed by the previous
physician at the same clinic.
HELD: Action allowed. The defend-
ant’s evidence posed difficulties. There was
no written evidence of prior discipline
related to unsatisfactory performance.
During the period of alleged unsatisfac-
tory performance, the plaintiff regularly
received raises. The plaintiff established
that the workplace deteriorated upon the
defendant’s new wife establishing a pres-
ence at the clinic. There was insufficient
evidence to support a dismissal for cause.
The dismissal of the plaintiff was most
likely motivated by her refusal to accept a
reduction in salary. The sudden significant
arbitrary reduction in her salary was a
form of constructive dismissal. The appro-
priate notice period was based on 12. 5
rather than 19 years’ service, as there was
insufficient evidence that the defendant
had assumed the contractual obligations
to the plaintiff owed by the previous phys-
ician. Based on her antecedents, the plain-
tiff was entitled to nine months’ pay in lieu
of notice based on her salary of $54,812
per year.
Drake v. Blach, [2012] O.J. No. 1251,
Ontario Superior Court of Justice, T.D.
Ray J., March 21, 2012. Digest No. 3201-
005
FAMILY LAW
MARITAL PROPERTY – Equaliza-
tion or division – Asset types – Business,
commercial or non-family assets –
Unequal division of property – Matri-
monial home – Child support – Spousal
support.
Appeal by the husband from two orders
determining matrimonial issues. The par-
ties separated in 2008 after a nine-year
marriage. They both had children from
prior relationships whom they raised
together. One of the wife’s children
remained a child of the marriage and she
received $692 in monthly support from
the child’s biological father. At the time
when the parties met, the wife was unem-
ployed and living on social assistance. The
husband owned an excavating and truck-
ing company in partnership with his
brother, as well as a holding company,
which were valued at $444,770. He also
owned the residence that became the
matrimonial home, in which he had
$365,000 of equity. In addition to the
matrimonial home, which was valued at
$945,000 and had a mortgage of $61,000,
the parties’ marital assets included the
husband’s RRSPs valued at $119,117, the
wife’s RRSPs valued at $68,416 when she
disposed of them in 2010, the wife’s pen-
sion entitlement valued at $18,138 and
two motor vehicles. The parties had a joint
debt of $7,949. For the first four years of
the relationship, the wife stayed at home
to care for the children. She then worked
various retail positions. In 2010, she left
her most recent position, where she earned
$17 hourly, when she and her daughter
moved to Calgary. The wife remained
unemployed but was looking for work. The
trial judge determined that the husband
was entitled to 60 per cent of the value of
his business. All other debts and assets,
including the matrimonial home, were
apportioned equally. With respect to sup-
port, the court attributed income to the
husband on the basis that he received
some funds in cash. The court averaged
the amounts that the husband’s holding
company withdrew from the partnership
over the last five years, plus expenses paid
by the company for the husband’s personal
benefit, and concluded that the father’s net
income was $236,607, which was to be
grossed up 18 per cent for the purposes of
support. The husband’s support obligation
for the wife’s daughter was based on his
income, less the amount of support her
biological father paid, payable until her
19th birthday. The wife was found to be
entitled to support, which was reviewable
after two years. She was attributed with
income based on her ability to earn $17
hourly. On appeal, the husband argued
that the trial judge erred in finding that
the two vehicles were family assets, failed
to deduct the costs of disposition when
valuing the business, failed to reapportion
the family residence in the husband’s
favour, erred in finding that the wife was
entitled to support, and in the determina-
tion of the husband’s income.

CUSTODY AND ACCESS – Best
interests of child – Status quo or main-
tenance of stable environment – Joint
custody – Primary residence – Contest
between parents and non-parents.
Cross-motions by the mother, the father,
the maternal grandmother and the maternal
aunt for custody and primary care of the
child. The father initially applied for sole
custody, with primary residence to the grand-
mother, without access for the mother. The
respondent was the child’s biological mother.
The two third parties were the child’s mater-
nal aunt and maternal grandmother. The
child had five siblings, a biological sister who
resided with the parties, two half-brothers
who resided with the grandmother, and two
of the father’s children who resided with their
mother. The father submitted that it was in
the child’s best interests to reside with the
grandmother, who provided daycare for her
and in whose home she had often slept over-
night. In addition, residing with the grand-
mother would permit her to continue to
attend a Catholic School. The father also
sought a non-removal order, as the mother
had allegedly threatened to relocate with the
child to the United States. The mother
claimed custody of the child and denied any
relocation plans or threats. She contended
that the grandmother made it difficult to see
her other two children and did not keep her
informed on matters involving the children.
The mother sought to have the child reside
with her and the aunt, as the aunt could pro-
vide daycare. The aunt filed a third party
claim for custody and primary residence on
the basis that the child spent 90 per cent of
her time with her. The parents reconciled.
The grandmother filed a third party claim
and minutes of settlement providing that she
and the parents have joint custody of the
child with primary residence with the grand-
mother. There was no provision for access by
the aunt, as unsubstantiated child protection
concerns had arisen in respect of the aunt’s
partner. The minutes of settlement were
rejected by the court. The aunt’s reply stated
that neither parent had accepted responsibil-
ity for the child and that their current recon-
ciliation was unstable. She sought sole cus-
tody and primary residence. The mother fell
out with the aunt and denied that the aunt
had spent significant time with the child. The
grandmother moved for sole custody and
primary care of the child with access for the
aunt. The father now sought sole custody
with or without the mother, characterizing
the grandmother as evil. The mother sought
joint custody with the father with access for
the grandmother and aunt.
HELD: Motions by aunt and mother
allowed in part, and other motions were
dismissed. The four parties were awarded
joint custody, with primary residence with
the aunt, weekday daycare provided by the
grandmother, one weekend of access per
month by the grandmother, and three week-
ends per month of access by the parents. All
of the parties were involved in parenting the
child to some extent and were able to co-
operate in reaching decisions that were in
her best interests. A joint parenting plan was
in the child’s best interests. Although alle-
giances between the parties were likely to
change and shift, the parties had shown a