June 2011 Ontario Take Five

June 2011

Ontario Edition

ON PO I N TLEGAL RESEARCH

op

Inside this Issue:

This month we have summarized what we feel are the five most interesting cases from the Ontario C.A. in May 2011.

We highlight cases from the following areas of law:

Employment Law; Contracts of Employment - p.3

Civil Litigation; Evidence; Methods of Proof - p.5

Pensions and Benefits Law; Private Pension Plans - p.7

Family Law; Separation Agreements -p.9

Civil Litigation; Civil Procedure - p.11

Classified Section- p.12-13We are pleased to announce that our first edition of Alberta Take Five, summarizing top cases from the Alta. C.A., came out in May. You are currently signed up to receive the Ontario edition. If you would also like to receive the Alberta edition, please contact us to sign up.

OnPoint Legal Research | Take Five

1.888.894.4280 | [email protected]

2

\

We are a firm of legal research lawyers.

For over 10 years, we have completed research and writing projects for lawyers in the private and public sectors across Canada. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients.

Who is OnPoint Legal Research?

Who We Are: Our research lawyers are well versed with both traditional research sources and the latest in research technology. They are academics -- all have completed a clerkship in B.C. or Alberta. In addition, they have all had the benefit of obtaining essential practice experience as lawyers with major downtown law firms.

What We Do:Our research lawyers possess diverse legal backgrounds, enabling us to handle projects of any size on any issue. We work closely with our clients to ensure that we have a thorough understanding of the scope of the project, the specific issues involved, and the perimeters of the desired end product. We complete a variety of projects for our clients, from case summaries to complex memoranda and facta. Click here for more information.

How to Contact Us:t. 1.888.894.4280e. [email protected]. www.onpointlaw.com

“OnPoint has always performed in a timely, effective and professional manner and has done excellent work at a reasonable price. We do not hesitate to use their services.”

Larry Kahn, QC and Marvin Lithwick, Kahn Zack Ehrlich Lithwick

“Our litigation firm does not have the resources to do quick or extensive research, especially in the middle of a proceeding. We find the services of OnPoint Legal Research to be responsive, effective and good value and we have no hesitation in recommending them”

Hugh S. McLellan, McLellan Herbert

“OnPoint is a trusted associate for research on specialty points of law and document review assistance in large cases for my busy sole practice. Sarah and her team never let me down.

On time, on budget …On Point.”

Morag MacLeod, Morag MacLeod LC

Sarah Picciotto, B.A., LL.B. Founder

mailto:[email protected]

June 2011


3

Mason v. Chem-Trend Limited Partnership, 2011 ONCA 344Areas of Law : Employment Law; Contracts of Employment; Express Terms

Under Appeal: Justice Kruzick

The appellant in this case was Mr. Mason.

The respondent was his employer, Chem-Trend Limited Partnership. The appellant worked as a technical salesperson for the respondent for 17 years prior to his termination. As a technical sales representative, the appellant acquired knowledge regarding the company, its products, and its customers and pricing. His sales territory was comprised of the whole of Canada plus certain mid-Atlantic states. When he was hired, the appellant signed a Confidential Information Guide and Agreement, which included a global non-competition restrictive covenant with any former customers of the company, set for a one-year term. Upon his termination, the appellant brought an application to assess the enforceability of this restrictive covenant. At trial, the judge upheld the enforceability of the restrictive covenant

on grounds that it was unambiguously worded and that the appellant understood its terms when he signed and entered the agreement. The judge further considered the reasonableness of the covenant in the context of its geographic scope, restricted activity, and term, and found it reasonable given the respondent’s worldwide operations. The judge found the one-year limit to be relatively short and thus capable of balancing the more onerous geographic and activity restrictions.

BACKGROUND

CLICK HERE TO ACCESS THE JUDGMENT

Classif iedSection

Hiring an associate, selling a practice,

sharing office space?

The Ontario and the B.C. versions of Take Five are received by

thousands of lawyers who have signed up to receive our

monthly newsletter.

Contact us for information about placing a classified ad in either version.


http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0344.htm



4

Mason v. Chem-Trend Limited Partnership, (cont.)

The appeal was allowed. The Court of Appeal

determined the application judge properly found an absence of ambiguity in the agreement’s wording. However, the Court found that the judge erred in concluding that a complete prohibition on competition with the respondent was not an overly broad restriction on the appellant’s activity. Examining the agreement as a whole, the Court found the presence of a separate covenant related to trade secrets and confidential information constituted significant protection for the respondent. The Court found that the one-year

restriction on competition related to any former customer was unjustifiable in the context of a 17-year employee, given the extent to which some former customer information would become dated. Further, it held that a prohibition on any dealings with any former customers was unjustifiable given the appellant’s level in the company. The restriction was ambiguous in its practical implementation and was overly broad. As a result, the Court concluded the restrictive covenant was unreasonable and unenforceable.

APPELLATE DECISION

Web-based Search & Registration

Open

Close the deal.

Visit

www.dyedurhambc.com or connect through BC Online

No faxes. No Couriers. No Paper.

No Footprint.

Information & Legal Support ServicesCORPORATIONLand TitleLitigationCorporatePPSADue DiligenceProcess ServingContinuing Legal Education


http://www.dyedurhambc.com

June 2011


5

Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341Areas of Law: Civil Litigation; Evidence; Methods of Proof Under Appeal: Justice Wilson

BACKGROUND

The appellant in this case was State Farm

Mutual Automobile Insurance Company. The respondents were various members of the Pepe family, led by the principal respondent, Mr. Massimo Pepe. The respondent Mr. Pepe was injured in a single-car accident. Ms. Shirley Aguirre, his girlfriend at the time, was in the car and was also injured. The respondent claimed that the accident occurred when he swerved to avoid an oncoming vehicle that crossed into his lane, left the road, and hit a tree. The appellant insured the respondent’s vehicle. The policy in question covered injuries caused as a result

of the negligence of an unidentified driver. The unidentified driver coverage had two components: partial coverage pursuant to the terms of the standard automobile policy, and additional more expansive coverage pursuant to the terms of what was known as the Family Protection Endorsement Plan. The latter was available to the respondent only if he could demonstrate that “other material evidence” could corroborate his version of the events. The respondent relied on the evidence of his passenger, Ms. Aguirre, to provide that corroboration. She agreed that the accident had been caused by the negligence

of the unidentified driver. The appellant argued that the more extended coverage was not available to the respondent, since Ms. Aguirre’s evidence could not fulfill the corroboration requirement. Both parties brought motions under Rule 21.01(1) for a determination of whether Ms. Aguirre’s evidence could meet the necessary corroboration requirement. The motions judge ruled in the respondent’s favour, and held that Ms. Aguirre’s evidence could corroborate his claim for the purposes of the coverage.






6

Pepe v. State Farm Mutual Automobile Insurance Co. (cont).

The appeal was dismissed. The Court

of Appeal determined that while the policy specified which persons could not provide corroborative evidence, those people included spouses and dependent family members only. The respondent’s girlfriend at the time,

Ms. Aguirre, did not fall within the description of those who could not provide independent witness evidence to corroborate the respondent’s account of the accident. The close personal relationship between the respondent and Ms. Aguirre and her interest in the outcome of his claim

Did you know...Our research lawyers are available to research and

“ghostwrite” presentations and articles on your behalf.

did not prohibit her from providing corroborative evidence. The Court further reasoned that Ms. Aguirre’s evidence was material to the respondent’s claim and was independent of his assertion that the accident was caused by an unidentified driver.

APPELLATE DECISION


June 2011



7

The appellant in this case was Gordon Creber. The

respondent was his employer, Revois Canada Ltd. The appellant commenced work for the respondent in October 1998 as a vice president in the corporate actuarial group. Upon his termination in February 2006, he held the position of senior vice president and chief financial officer. The appellant, age 52 at the time of termination, was also a member of the company’s

Revios Canada Ltd. v. Creber, 2011 ONCA 338Areas of Law: Pensions and Benefits Law; Private Pension Plans; Early Retirement Under Appeal: Justice Pollak

registered pension plan and had entered into an executive supplementary pension agreement designed to top up benefits following retirement. Following termination, the respondent commenced an action for a declaration that the appellant was not entitled to an unreduced pension at age 62 under either the plan or the top-up agreement. The appellant brought a motion for summary judgment to dismiss this action. The motion judge interpreted the pension document to find in favour of the respondent, and declared that the appellant was

not entitled to an unreduced pension plan at age 62 under either plan. The appellant appealed on grounds that early retirement was not defined in either the plan or the agreement, that the reference to early retirement in the agreement was linked to the plan provisions relating to early commencement of a deferred pension, and that as a result he was entitled to receive an unreduced pension at age 62.

BACKGROUND





8

Engineers and Scientists specializing in

Transportation

Injury Biomechanics

Product

Property

Aviation

www.meaforensic.comMEA is an approved Continuing Education provider at the Law Society of BC.

The appeal was dismissed. The Court of Appeal

determined the motion judge did not err in the interpretation of the pension documentation. The appellant’s employment with the respondent ended when he was 52, and as a result, he did not qualify to receive early retirement benefits. Although early retirement was not defined in the definition section of the plan at issue, it was defined in the provisions and its meaning was clear and unambiguous. Early retirement occurred when a plan member’s employment ended and the plan member was between the ages of 55 and 65. The Court reasoned that the deferred pension

provision did not create an early retirement date, but rather allowed a person entitled to a deferred pension to begin receiving that pension before reaching age 65, but after attaining the age of 55. The right to begin receiving the pension early was not equivalent to early retirement. The Court held that to accept the appellant’s interpretation would be to apply an interpretation that was at odds with the conditions for entitlement created by the plan.

Revios Canada Ltd. v. Creber, (cont.)

APPELLATE DECISION


http://www.meaforensic.com

June 2011

The parties separated in 1991 after an 18-year

marriage. They had three children. The wife was a full-time homemaker from the birth of the first child until the separation date, a period of more than 13 years. Following the separation date, she commenced employment as a corporate law clerk. The husband was a chartered accountant. Pursuant to a separation agreement entered into by the parties in 1991, the wife obtained custody of the children and the husband agreed to pay $1,611 per

month in child support for each child. The husband also agreed to pay spousal support of $1,250 per month until 1996, and on a sliding scale basis thereafter until 1999. In 1996 and 1997, the husband negotiated significant reductions in his child support payments without disclosing to the wife his exercise of valuable stock options, his receipt of generous severance packages, and his returns to work after periods of unemployment. The husband had not paid any child support since 2002, and ignored the wife’s repeated requests for financial disclosure. The records eventually revealed that

the husband’s real income from 1995 to 2010 was $4,900,000, and the wife’s real income was $783,738. The wife eventually applied for arrears of child and spousal support, and for ongoing spousal support. The application judge awarded the wife retroactive spousal support from 1995 to 2010 and retroactive child support for 1995 to 2007 in excess of the amount provided for in the amended agreement. The husband appealed.



9

Back to photos of books and scales of justice....

BACKGROUND

S.P. v. R.P., 2011 ONCA 336Areas of Law: Family Law; Separation Agreements; Maintenance and SupportUnder Appeal: Justice Paisley





10

The appeal was allowed in part. The Court

of Appeal determined the application judge was correct to grant standing to the wife to make a claim for retroactive child support for the youngest child and to award retroactive child support. The Court further found the husband’s failure to advise the wife of his true financial situation was highly reprehensible. He improperly reduced his child support payments and presented a misleading picture of his financial circumstances. The Court held the application judge did not err by awarding retroactive child support to 1995 due to the husband’s blameworthy conduct in negotiating a significant reduction in child support in 1996. Since the wife’s income was lower than anticipated, and the husband’s income was quite high for the years in question, it was appropriate for the amount of the child support to be higher than the amount provided for in the agreement. The Court held that while the application judge did not err in making some variation

to the amount of spousal support owing under the separation agreement, he did err by ignoring the terms of the separation agreement altogether. The application of the strongly worded release in the agreement to the circumstances under which the agreement was signed, and the ensuing financial circumstances of the parties, did not allow for a spousal support award

that continued after 1999. The wife acknowledged in the agreement that no material change would give her the right to claim or obtain spousal support, except to the extent provided for by the terms of the agreement. This was a fully enforceable provision that provided a complete answer to the wife’s claim for spousal support beyond 1999.

S.P. v. R.P., (cont.)

APPELLATE DECISION




11

Back to photos of books and scales of justice.... Wolfe v. Pickar, 2011 ONCA 347Areas of Law: Civil Litigation; Civil Procedure; Estoppel; Jurisdiction Under Appeal: Justice Rogin

The appellants in this case were Mr. Wyeth

Pickar, Mr. James Pickar, and Wyeth Corporations. The respondents were Dr. Bernard Wolf and DMW Kildeer Incorporated. The respondents commenced an action against the appellants for damages for breach of contract, wrongful use of confidential information, and breach of fiduciary duty. The respondent Mr. Wolfe claimed he had developed a low-dose hormone replacement therapy and that the appellants misused confidential information disclosed to them pursuant to an agreement between the parties. Subsequently, the appellants commenced an

action in Pennsylvania for a declaration that any claims the respondents might have against them for breach of contract, misappropriation and breach of fiduciary duty were barred by the Pennsylvania statute of limitations. The Pennsylvania court found that the respondents’ claims were indeed barred by the Pennsylvania statute of limitations. The respondents contested this finding before the Ontario Superior Court of Justice. The motions judge declined to apply the doctrine of res judicata and issue estoppel. He found that the issue decided in the Pennsylvania court was not the same

as the issue before him, and that Ontario could properly accept jurisdiction over the action because the real and substantial connection test was met and Ontario was a convenient forum for the action. The respondents’ research was all done in Ontario, all negotiations took place in Ontario and the appellants’ alleged misuse occurred in Ontario. Further, the motions judge found that both appellants were in a relationship with the respondents that originated in Ontario in which activity in Ontario was central.

BACKGROUND


The appeal was dismissed. The Court of Appeal determined that the Pennsylvania court did not decide the question put before the Ontario court in this action. Further, the

Court found the Pennsylvania court did not decide that the Ontario court should find that Pennsylvania law applied and, as a consequence, that the respondents’ claims were time barred. The Pennsylvania order only applied to any claims the respondents might assert in Pennsylvania. The Court found that the appellants in this case had attorned to the jurisdiction of the Ontario court by bringing their dismissal motion. The Ontario court therefore had consent-based jurisdiction, and there was no need to examine whether Ontario could assume jurisdiction over the appellants.

APPELLATE DECISION



604.879.4280 | [email protected]

12

Nelligan O’Brien Payne, an Ottawa based multi-service law firm with 52 lawyers, has an immediate need for a bilingual lawyer to work in our Ottawa offices. The candidate we seek must have both an Ontario and Quebec Call, able to work in both official languages and be willing to work both in a team environment and independently. Some travel will be required. Knowledge of aboriginal law, corporate/commercial law, employment law, and governance matters would be an asset.

Qualified candidates are invited to submit their resume in strict confidence by July 8, 2011 to:

Nelligan O’Brien Payne LLPSuite 1500, 50 O’Connor Street, Ottawa, ON K1P 6L2Attention: Caroline Choquette CHRPEmail: [email protected]

LaBarge Weinstein, a business law firm located in the west end of Ottawa, is seeking a lawyer to join its corporate securities group. The position primarily involves transactional work on mergers & acquisitions and financing for public companies. Private company and international financing work is also involved. The position also involves responsibility for day-to-day corporate, securities and commercial legal requirements of clients. The candidate must have a minimum of 3 years of solid public company, corporate finance and mergers & acquisitions experience. For more details about the firm and the position, please click here.

Interested applicants may apply by forwarding their resume to Shelly Hagmann at [email protected].

Take Five Classified

Corporate Securities Lawyer Required

Bilingual Lawyer Required

http://www.nelligan.ca

604.879.4280 | [email protected]

13

Take Five Classified, p.2

Searching for an associate, selling a practice, or renting office space? Take Five is received by over 1,400 lawyers in B.C. and over 600 lawyers in Alberta and Ontario

who have signed up to receive the newsletter every month.

Contact us to find out more about placing an ad in our Take Five Classifieds.

Office Space

Nelligan O’Brien Payne, a multi practice law firm headquartered in Ottawa, is currently seeking a professional to share office space

Office Space Available

Nelligan O’Brien Payne, a multi practice law firm headquartered in Ottawa, is currently seeking a professional to share office space in their Kingston office located at The Woolen Mill, 4 Cataraqui Street.

We can provide a fully furnished office, the use of a fully furnished reception area, access to common areas, some storage space in the basement and fax and photocopier access. Space is available as of July 1, 2011.

For further details, please contact: Caroline Choquette at (613) 231-8318 or [email protected]

http://www.nelligan.ca

June 2011 Ontario Take Five

Documents

Transcript of June 2011 Ontario Take Five