OnPoint's Ontario August Take Five

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August 2013

ONTARIO EDITION EDITION

INSIDE THIS ISSUE:

Featured Cases:

Statutory Interpretation; Motor Vehicle Accident Benefits Schedule; Compound vs. Simple Interest

- With Counsel Comments

Family Law; Mobility; Special Needs Child

Officers & Directors; Share Appreciation Rights; Advanced Funding for Litigation; “Bad Faith”

Gambling; Class Proceedings; Certification; Liability - With Counsel Comments

Discrimination; Wrongful Dismissal; Lack of Evidence of Racism - With Counsel Comments

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Zacharias v. Zurich Insurance Company, 2013 ONCA 482Areas of Law: Statutory Interpretation; Motor Vehicle Accident Benefits Schedule; Compound vs. Simple Interest

On December 18, 1990, the Respondent was injured in a motor vehicle

accident. Between December 25, 1992 and January 26, 1996, the Respondent received weekly benefits from the Appellant in the amount of $216.37 pursuant to Part IV of the Statutory Accident Benefits Schedule – Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 (“SABS 1990”). On January 26, 1996, the Appellant terminated the benefits alleging that the Respondent was either not injured, or her injuries had not arisen from the accident. The termination of her benefits prompted the Respondent to commence this action for the payment of past and continuing benefits at a rate of $600 per week dating back to the date of her accident as well as for interest on the overdue amounts pursuant to s. 24(4) of SABS 1990. In her claim, the Respondent alleges that the interest calculated on any overdue amounts that she is entitled to is to be done so compounded monthly. On this point, the Appellant disagreed, arguing that s. 24(4) only provides for simple interest. This appeal only deals with the question of whether simple or compound interest applies to any amounts the Appellant is found to owe the Respondent. The motion judge considered SABS 1990 as

BACKGROUND

~Interest calculated on compound basis under s. 24(4) of 1990 Statutory Accident Benefits Schedule~

CLICK HERE TO ACCESS THE JUDGMENT


http://www.canlii.org/en/on/onca/doc/2013/2013onca482/2013onca482.pdf




August 2013


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Zacharias v. Zurich Insurance Company, (cont.)

The Court of Appeal agreed with the result of the motion judge, but

reached a decision based on a different line of reasoning. The test for ambiguity set out by the Supreme Court of Canada in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 28-29 was applied to determine that the wording of s. 24(4) of SABS 1990 was not ambiguous. The Court of Appeal concluded that interest is meant to be compounded when s. 24(4) is considered in its grammatical and ordinary sense and in a manner that corresponds with the scheme of the legislation and its intent. The change in the wording from s. 24(4) of SABS 1990 to s. 68 of SABS 1994 was intended to increase the effectiveness of the legislative intent to better ensure that insureds are compensated for the

loss of the time value of money and to encourage the prompt payment of benefits by insurers. Therefore, the Court of Appeal concluded that s. 24(4), read in its entire context, clearly intended interest to be compounded on a monthly basis.

APPELLATE DECISION

well as the corresponding s. 68 in the subsequently amended schedule Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and Before November 1, 1996, O. Reg. 776/93 (“SABS 1994”) to conclude that s. 24(4) of SABS 1990 intended provide for interest compounded monthly. She reached her decision on the basis that, because the provision does not specify “simple” or “compound” interest, it was ambiguous and required an analysis relying upon external interpretive aids and

extrinsic materials such as the Report of the Automobile Insurance Board (Ontario: Ministry of Financial Institutions, 1989) to provide evidence of legislative intent to determine the matter. She reasoned that the absence of the words “compounded monthly” may have been a drafting error and the subsequent addition of those words in s. 68 of SABS 1994 “was an instance of language polishing and not a substantive amendment”.




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“The decision of the Court of

Appeal for Ontario in Zacharias v. Zurich Insurance Company, 2013 ONCA 482, is of interest in a number of respects. From the perspective of appellate practice, the case is noteworthy in that the grounds for the Court’s decision were based on an argument that had not been made before the motions judge, was not extensively dealt with in the facta of the parties and was discussed in detail only at the hearing of the appeal. Consequently, the Court requested further written submissions after the conclusion of oral argument. This reflects the Court’s overriding concern to reach the correct result, and to provide the parties with the best possible opportunity to put their positions forward in the interests of fairness.

From the perspective of the merits, the decision is noteworthy in that the Court concluded it was not necessary for the 1990 version of the

COUNSEL COMMENTS, Cont. Zacharias v. Zurich Insurance Company, 2013 ONCA 482

Statutory Accident Benefits Schedule to specifically mention compound interest in order for compound interest to be payable on unpaid accident benefits. The structure of then section 24 in and of itself, the Court held, required the payment of

compound interest. This was based on a close reading of the Regulation.

Section 24(2) provided that “amounts payable” under Part IV (weekly income benefits) were overdue if not mailed within ten days after receipt of a completed application for benefits. Section 24(3) provided that weekly income benefits were payable every second week while the insurer remained liable to the insured person. Section 24(4) provided that “The insurer will pay interest on overdue payments from the date they become overdue at the rate of 2 per cent per month.” Since interest was payable on “overdue payments” and payments

Counsel Comments provided by Allan Rouben (on Twitter- @AllanRouben), Counsel for the Respondent, Nancy Zacharias

Allan Rouben


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had to be made every second week, the Court concluded that interest was a component of the “overdue payment.” As long as the overdue payment remained unpaid, interest continued to accrue on the unpaid principal and interest. The result was that interest was payable on unpaid interest.

A significant feature of the case was that subsequent versions of the Statutory Accident Benefits Schedule made it explicit that an insurer was required to pay compound interest on unpaid benefits. Zurich argued that inclusion of the word “compound” in subsequent versions of section 24(4) was meant to reflect a change in the law. The Court of Appeal agreed the change was purposeful, but held it was designed to further the legislative intent to compensate insureds for the time value of money and to encourage the prompt payment of accident benefits.

Zurich’s main position on the appeal was that reference to compound interest in section 282(10) of the Insurance Act, which deals with special awards, showed that the legislature included specific mention of compound interest when it was intended that compound interest be paid. The Court answered this point by making this significant statement of general application: “It is important to note that compound interest does not penalize. It compensates. A penalty for conduct that goes beyond benign delay is provided for in s. 282(10) of the Insurance Act, set out above that requires an insurer to be sanctioned in circumstances where a finding is made that the insurer has demonstrated an unreasonable lack of regard towards its obligations to pay benefits on a timely basis.”

In my view, the decision of the Court of Appeal accords with the language of the Regulation, and furthers the legislative intent that insurers comply with their obligation to make timely payment of accident benefits properly found to be due and owing.”

COUNSEL COMMENTS, Cont.

A note about Counsel Comments:

The opinions and views expressed in Counsel Comments are the opinions of the contributing authors and do not necessarily reflect the opinions or views of OnPoint.




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The Appellant, Mr. Sferruzzi, and Respondent, Ms. Allan, married in

2002 and had a son, Mason, in 2006. Mason was diagnosed with autism when he approximately 16 months old and has significant special needs. Mr. Sferruzzi was an Assistant Crown Attorney with regular weekly hours and worked overtime when needed. Ms. Allan was employed as a senior support provider with an organization that provided residential care to adults with special needs. The parties separated in 2009 and agreed that Mr. Sferruzzi would have sole custody over Mason although Ms. Allan would have regular access with Mason. Since the parties’ relationship ended, Mr. Sferruzzi has been in a relationship with Ms. Packer, who lives in Pickering, and

together they have a three-year old son, Nicholas. Both Mr. Sferruzzi and Ms. Allan live in Waterloo, however, Mr. Sferruzzi wished to move to Pickering to allow Mason and Nicholas to grow up together as siblings and so that he, Ms. Packer, and their children could live together as a family. Mr. Sferruzzi applied to the court to vary an order precluding Mr. Sferruzzi from moving Mason without Ms. Allan’s consent, which she does not give in this case as she believes the move would not in Mason’s best interests. Particularly, Ms. Allan feared that if Mr. Sferruzzi moved to Pickering, she would have reduced frequency of contact with Mason, it would disrupt Mason’s relationships with her extended family and his treatment providers,

Sferruzzi v. Allan, 2013 ONCA 496Areas of Law: Family Law; Mobility; Special Needs Child

BACKGROUND

~For mobility cases, once material change demonstrated, judge “must embark on a fresh inquiry” into best interests of child~







http://www.tvsbarristers.com/

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Sferruzzi v. Allan, (cont.)

and the long distance between then would result in increased travel expenses with Mason subject to long car rides for access visits. Mr. Sferruzzi, on the other hand, alleged that such a move would be in Mason’s best interests. In addition to enabling Mason to grow-up with Nicholas, Mr. Sferruzzi would have the care and support of Ms. Packer to help him raise Mason. Presently, he was having considerable difficulty juggling his workload, household duties and the needs of Mason on his own, was suffering as a result including a bout with depression, and feared the negative impact on Mason. The motion judge noted that a move to Pickering constituted a material change and then placed the burden on Mr. Sferruzzi to prove that such a move was in the best interests of Mason. The motion judge found that this burden had not been met and declined to vary the order to permit the move. Mr. Sferruzzi appealed.

APPELLATE DECISION

The appeal was allowed. The motion judge had erred both in law and

in his misapprehension of the evidence. Gordon v. Goertz, [1996] 2 S.C.R. 27 [“Gordon”] is the leading case on mobility in family law cases and sets out the governing principles for such matters. Once the threshold of demonstrating that the child’s circumstances will undergo a material change, the judge must “embark on a fresh inquiry” into the best interests of the child. This means an investigation into Mason’s best interests in all the circumstances, both old and new. Thus the trial judge had erred in placing the burden of proof on Mr. Sferruzzi to prove that the move was in Mason’s best interests. The trial judge had also misapprehended the evidence of Mr. Sferruzzi and failed to provide great respect to Mr. Sferruzzi’s position as the

custodial parent, as set out in Gordon, particularly regarding the benefits to Mason of moving to Pickering. After careful application of the governing principles from Gordon, the Court of Appeal found that such a move was in Mason’s best interests.




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The Respondent, Look Communications Inc. (“Look”)

was a telecommunications company and the Appellants were former corporate officers and directors of Look. Look had adopted a Share Appreciation Rights Plan whereby Look awarded share appreciation rights (“SARs”) to its directors, officers, employees and consultants, based on the market value of its shares. If Look sold all or substantially all of its assets, the SARs could be exercised and the holder would be entitled to be paid the difference between the market price of the shares on that date and the price of the shares on the date the SARs were granted. The Appellants were all granted SARs under the plan. Between 2005 and 2008, Look’s business suffered serious decline and, as a result, in late 2008 Look’s shareholders and the court approved the sale of Look’s assets. The sale closed and Look paid just over $20 million (32 percent of the net sale proceeds) to its officers, directors, employees and consultants through bonuses and equity cancellation payments. These had been approved by Look’s Board of Directors, which included the decision to make

payments to terminate the SARs based on a share valuation of $0.40 per share as opposed to the $0.20 market value of the shares at that time, contrary to the terms of the SARs that required using the market value. Once informed of the payments in January 2010, Look’s shareholders strongly disapproved and, in anticipation of such disapproval, Look’s Board of Directors authorized $1,550,000 to be paid for retainers to law firms to act for them personally. Once the retainers were paid, the Appellants resigned. In the summer of 2011, Look’s new management and Board of Directors sued the Appellants for various breaches, claiming repayment of the bonuses and equity cancellation payments pursuant to s. 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“CBCA”). The Appellants, in turn, turned to Look to seek advanced funding and indemnification from Look for their legal costs to defend the claims. When Look refused to provide any such funding, the Appellants brought a motion for declaratory relief, arguing that Look’s by-laws and various indemnification agreements provided them with a right

Cytrynbaum v. Look Communications Inc., 2013 ONCA 455Areas of Law: Officers & Directors; Share Appreciation Rights; Advanced Funding for Litigation; “Bad Faith”

BACKGROUND

~Prima facie case of “bad faith” sufficient to refuse advanced funding under Canada Business Corporations Act~







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Cytrynbaum v. Look Communications Inc., (cont.)

to the funding. Look, on the other hand, argued that such advanced funding should be refused, pursuant to s. 124(4) of the CBCA because the Appellants had acted dishonestly and in bad faith. The trial judge found in favour of the Respondents, determining that Look had established a prima facie case of bad faith and, as a result, the advance funding should be refused.

APPELLATE DECISION

On appeal, the Appellants argued that s. 124(4) of the CBCA only applied to derivative actions and that to permit Look to raise the issue of bad faith at a

preliminary stage would effectively deny the Appellants any right to advance funding provided in Look’s by-laws and agreements, particularly where such a finding was interim and inconclusive and, as they alleged, not supported by the evidence. The Court of Appeal disagreed. S. 124(4) of the CBCA does apply to claims for advanced funding in actions brought by the corporation and establishes a strong prima facie test for determining whether such funding should be denied. The trial judge had correctly began by providing the Appellants with the benefit of the presumption of good faith and held that Look had rebutted that presumption based on ample evidence of bad faith. The strong evidence of self-interested behaviour supported the finding of bad faith sufficiently to meet the threshold under s. 124(4) of the CBCA. The appeal was dismissed.

SOME OF ONPOINT’S RECENT WORK:Providing New Perspective

We were asked to research whether a judge retains supervisory jurisdiction over a society after having delegated his supervisory authority to an officer of the society in an earlier order. Taking a broader view of the matter, we queried whether the matter might be more appropriately argued as res judicata, and found an old SCC case to support that position in nearly identical circumstances. This aspect of the case was decided in the client’s favour on this basis.




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Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501Areas of Law: Gambling; Class Proceedings; Certification; Liability

BACKGROUND

~Self-exclusion form not sufficient proof of vulnerability of gamblers for purposes of certifying class action~

Since its inception, the Ontario Lottery and Gaming Corporation (“OLG”)

has provided a self-exclusion form for gamblers. Those who requested the form were interviewed by casino staff and their photograph was taken and circulated amongst security officers at OLG’s gaming facilities around the province. The security officers were to rely on their memory of the photographs to identify the patron if they attempted to enter or were discovered in one of OLG’s gaming facilities. The Appellant, Peter Aubrey

Dennis, was a problem gambler and had signed one of OLG’s self-exclusion forms. Prior to signing the form, Dennis had spent well over $350,000 at OLG’s various gaming facilities. Upon signing the form, OLG repeatedly failed to refuse Dennis entry to its facilities or to identify and remove him once he gained entry. As a result, Dennis claimed that he has lost approximately $200,000 in addition to various other specified losses. Dennis asserts that the self-exclusion program was doomed to fail from the beginning,


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August 2013


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Dennis v. Ontario Lottery and Gaming Corporation, (cont.)

that OLG failed to use “best efforts” to exclude him from its facilities and that OLG “knew or ought to have known that the measures it had implemented to deny Self-Excluded Customers entry to its Gambling Venues were ineffective or likely to prove ineffective”, including the “obvious” limitations of using memory-based enforcement. Dennis initiated a class action based on negligence, breach of contract and occupiers’ liability, and his spouse, Zubin Phiroze Noble, sought damages under the Family Law Act, R.S.O. 1990, c. F. 3 (“FLA”). Dennis and Noble sought certification of their claims under the Class Proceedings Act, 1992, S.O. 1992, c. 6. Dennis sought to represent a primary class consisting of all residents in

Ontario and the United States, or their estates, who signed a self-exclusion form between December 1, 1999 and February 10, 2005. Noble wished to represent a secondary class consisting of family members of those in the primary class who suffered damages under the FLA. At trial, the judge denied certification on the basis that the issues involving liability were not common as proof was required that individual class members were vulnerable, pathological problem gamblers who used OLG’s gaming facilities despite signing the self-exclusion form. The dissenting judge, however, felt that signing the self-exclusion was sufficient proof of vulnerability and thus the issues respecting liability were common and certifiable.




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Dennis v. Ontario Lottery and Gaming Corporation, (cont.)

APPELLATE DECISION

The Court of Appeal agreed with the majority of the trial judge’s decision that this was not a suitable case for certification and dismissed the appeal. The main issue on

appeal was whether this was a case of individualized inquiry or one of systemic wrong. Certification is proper for liability issues when they turn on the unilateral actions of the defendant and do not depend on individual circumstances. The Appellants argued that several issues such as the interpretation of the self-exclusion form, whether the exclusion of liability clause was enforceable, whether OLG breached its contractual best efforts obligation and whether OLG owed and breached a duty of care in tort, were common issues. However, in this case, the alleged failures of the OLG turned on the vulnerability of the class members and the finding that the harm suffered by the primary class members resulted from their own actions by returning to OLG’s gambling facilities and losing money. In order to assess whether OLG was at fault and liable to the primary class members for their self-inflicted harm they suffered, the Court had to go beyond the question of whether they had signed the self-exclusion form or not to investigate the individual circumstances of each gambler. The appeal was dismissed.

We are pleased to welcome a new research lawyer to OnPoint:

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After completing her M.A. in History and her J.D. at UBC, Melania further developed her research and writing skills while serving as a clerk to the

Supreme Court of British Columbia. Melania then completed her articles at Young, Anderson. She went on to practice at the firm as an associate where

she was involved with a variety of litigation and research projects, including drafting submissions for the Court of Appeal of British Columbia and the

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“The Court of Appeal’s decision in Dennis stands as

a missed opportunity by the Court to maintain a coherent and generous approach to the Class Proceedings Act, 1992 so as to fully realize its benefits as articulated by the Supreme Court of Canada in Hollick v. Toronto (City)1 and other cases.

The appellants sought certification of their action in circumstances well suited for the kind of “top down” analysis that has been the hallmark of successful certification motions in past cases. The case involved: •the interpretation of a one page

standard form contract signed by all proposed class members;

•the conduct of a single defendant, the respondent OLG, which acknowledged that it had adopted a standardized method of performing the contract across its system of gambling venues; and

•allegations of systemic breaches of duties owed by the defendant in that standardized method

1 [2001] 3 S.C.R. 158

COUNSEL COMMENTS, Cont. Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501

of performance, in contract, negligence and occupiers’ liability.

The Court of Appeal was faced with sharply divergent views from the courts below. The motions judge and Divisional Court majority had accepted OLG’s submission that the appellants could not establish a duty of care in negligence without proving the vulnerability of each proposed class member (i.e., the degree to which each was driven to return to the casino to gamble by a compulsion that was a function of problem gambling, a recognized psychological disorder) on an individual basis.

The dissenting judgment of Wilson J. at Divisional Court, on the other hand, agreed with the appellants’ argument that in the context of this “one-size-fits-all” program - - in which the degree of any one person’s illness as a problem gambler played no role in the design or implementation of OLG’s enforcement measures - - whether the respondent owed a duty of care

Counsel Comments provided by Lori Stoltz, Counsel for the Appellants, Peter Aubrey Dennis and Zubin Phiroze Noble


August 2013


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COUNSEL COMMENTS, Cont.in negligence was appropriately determined with regard for what OLG knew or ought reasonably to have known about the class of persons at whom the program was targeted. It was therefore an issue that could properly be determined on a common basis without the need for individual hearings.

The appellants argued before the Court of Appeal that to accept the approach taken by the motion judge and Divisional Court majority would be to unduly limit the circumstances in which plaintiffs could successfully assert a duty of care in negligence in a class proceeding or even succeed in having it certified. Such an approach cannot be right if the Class Proceedings Act is to achieve its recognized object of achieving, “the efficient handling of potentially complex cases of mass wrongs”.2 Proposed class members will always differ in some way, whether it be in their need for a drug or device alleged to have been unsafe, their dependency on representations by a corporation issuing shares, their vulnerability to abusive treatment by residential caregivers, or some other characteristic pertinent to the litigation at issue.

There was a similar split in the arguments and judicial treatment directed to the question of standard of care. The motion judge and Divisional Court majority had accepted OLG’s submission that what standard of care was required of OLG and whether it had been breached, again, required individual inquiry on the issue of vulnerability. Since OLG only ever adopted one enforcement mechanism (so-called “memory-based enforcement”3) to be applied across the entire system of its gambling venues, however, the appellants argued that these questions were solely referable to what OLG knew or ought reasonably to have known about the class of persons likely to sign their self-exclusion agreement and the measures reasonably necessary and available to prevent their re-entry to its casinos.

Unfortunately, the Court of Appeal’s reasons for decision failed to treat duty of care and standard of care as distinct elements for analysis, addressing only general questions of “liability”, “fault” and “legal responsibility” which necessarily included the confounding element of causation (which the appellants agreed

2 Dabbs v. Sunlife Assurance Co. of Canada, [1998] O.J. No. 3622 (C.A.), para 63 This entailed circulating the photographs of all 10,428 class members to OLG’s 27 gambling venues across the province and directing security staff to remember their faces and deny them entry at the venue door, if and when recognized.


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COUNSEL COMMENTS, Cont.from the outset was fairly characterized as an individual rather than common issue).

The Court failed, as a result, to take this opportunity to provide the degree of clarity and expansiveness of principle governing the question of duty of care in proposed class actions as was established by Cloud v. Canada (Attorney General) for standard of care. Given the Court’s emphasis in Dennis upon the need for “an undifferentiated class of individuals” who have been “exposed to the same risk on account of the defendant’s conduct”4, moreover, it is perhaps even arguable that the bar for certification has been raised for plaintiffs in future cases.”

4 Dennis v. Ontario Lottery and Gambling Commission, [2013] O.J. No. 3468 (C.A.), para 53




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General Motors of Canada Limited v. Johnson, 2013 ONCA 502Areas of Law: Discrimination; Wrongful Dismissal; Lack of Evidence of Racism

BACKGROUND

~Lack of evidence of racism at trial; employee’s failure to attend training session not racially-motived~

The Respondent, Yohann Johnson, was a black man who had worked

with the Appellant, General Motors of Canada Limited (“GM”), between 1997 and 2005 as a production supervisor in one of GM’s body shops. In June, 2005, Johnson was tasked with providing training to group leaders in the body shop on new policies and guidelines. Many of the group leaders, who were unionized hourly employees, were unhappy with having to take the training. On June 28, 2005, one of the group leaders, Alex Markov, was scheduled to train with Johnson but failed to attend the session. When asked later that day by his supervisor why he had failed to attend, Markov claimed that it was because of an incident that had taken place in 1997 between Markov, Johnson and another GM employee, Ray Michaud. Markov claimed that Johnson had laughed at a remark made by Michaud, which remark, in Markov perception, had been an insensitive and disparaging reference to the murder of Markov’s brother.

The next day, June 29, Johnson was scheduled to train another employee, Ted Hayes. Hayes attended the session but told Johnson that he had learned he

could be excused from the training session if he claimed that he was “prejudiced like the last guy whose brother was killed by a black man.” Johnson did not ask Hayes the source of his information, but made inquiries of another body shop employee, Hugh Hicks, about the death of Markov’s brother. Hicks told Johnson that he had heard from others that Markov’s brother had been killed by a black man.

Based solely on Hayes and Hicks’s statements, Johnson concluded that Markov had refused to train under him because he was a black man. The following morning, June 30, Johnson complained for the first time that Markov’s refusal to train with him was the result of racism. Immediately following Johnson’s complaint,GM undertook the first of three investigations.

On the same day, June 30, a meeting was held where, at the suggestion of the union representative, Markov agreed to resign as a group leader and assume a different role as a utility replacement representative whereby he would be responsible for filling in for other plant employees within the body shop as required. Johnson accepted this resolution. The next day, the plant closed for GM’s two-week summer shut-






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General Motors of Canada Limited v. Johnson, (cont.)

down.

A few days after the resumption of plant operations, Johnson observed Markov in the body shop performing group-leader duties. Johnson concluded that Markov had been restored to his group leader position, in violation of the agreed-upon resolution. He reported this to the plant manager. Within hours, Markov had been suspended for five days. Johnson was again satisfied with this resolution. However, Markov exercised his right under the collective agreement to appeal his suspension. The suspension was overturned and GM was criticized for permitting Markov to perform group leader duties. At trial, Johnson’s supervisor testified that Markov was simply filling in as a replacement for an absent group leader pursuant to his duties as a utility replacement representative.

When Johnson learned that Markov’s appeal had been allowed, he asked for another investigation into his complaint of racism. GM undertook a second investigation. Itconcluded that there was no evidence that Markov’s failure to attend training was the result of racism. Johnson expressed his dissatisfaction at this outcome to the assistant plant manager, who offered, on its own initiative, to undertake a further investigation. The following day, Johnson began an approved medical leave.

GM subsequently undertook a third investigation, which also concluded that

there was no evidence of racism. In the course of the third investigation, Markov added a detail that he had not previously mentioned: he claimed that, several hours after the 1997 incident in which Johnson had allegedly laughed at an inappropriate joke told by Michaud, Johnson and Michaud went to see Markov, repeated the joke, and laughed again.

Johnson remained on medical leave for the next two years. In mid-July, 2007, Johnson met with the plant physician, who concluded that Johnson was fit to return to work. GM subsequently offered Johnson positions similar to his previous position at other GM plants, but he refused to take them, claiming that he was disabled and unable to work in any plant where he might encounter Markov. Johnson instead sought a position at General Motors Acceptance Corporation, in GM’s training centre, or in head office. At the end of September, 2007, GM wrote to Johnson, confirming that he had been offered alternative employment and had not provided further evidence of medical disability. GM’s letter stated that in the circumstances it concluded Johnson was resigning from his employment with GM.

Johnson commenced the action in January, 2008, claiming constructive dismissal as a result of a poisoned work environment.

Markov, the employee who Johnson alleged was racist, died prior to the trial of the action.

The trial judge found in favour of Johnson,




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APPELLATE DECISION

The central issue in this case was whether the trial judge had erred in finding that Markov’s refusal to attend the training session with Johnson was racially

motivated. If there was no racism found, then the trial judge’s remaining findings against GM are no longer valid. The Court of Appeal came to the conclusion that the trial judge’s finding of racism was unreasonable and unsupported by the evidence. There was no direct evidence of racism at trial and the trial judge was unable to assess Markov’s credibility as he had died prior to trial. However, the uncontradicted evidence of the investigators was that Markov was “very sincere” in his explanation of his refusal to attend the training session. The only racially-related comment by a GM employee was that made by Hayes, which had no evidentiary value. The Court of Appeal found that the trial judge drew an unreasonable inference when he concluded, on the basis Markov’s later claim about a second encounter with Johnson and Michaud in 1997, that Markov’s refusal to attend training was racist. The Court of Appeal found that trial judge had also failed to consider other evidence supporting Markov’s explanation for skipping the training session. The Court of Appeal concluded that there was no evidence to support the trial judge’s factual finding that Markov’s absence from training was racist, and that this was sufficient to decide the appeal.

However, the Court went on to examine the the trial judge’s finding that the GM plant was a poisoned work environment, and that Johnson has been constructively dismissed. The Court reviewed the law on poisoned work environment and constructive dismissal. An objective standard applies to the determination of whether a work environment is poisoned. The Court found that even if Markov’s failure to attend training had been racist, that alone would not support a finding of a poisoned work environment. The

holding that, amongst other things, Markov’s refusal to train under Johnson was solely racially-based. This finding was based on the fact, noted above, that Markov in the course of GM’s third investigation claimed for the first time that Johnson and Michaud had repeated the allegedly offensive joke. Without the benefit of Markov’s testimony, the trial judge found that this was a fabrication, and inferred that it was designed to conceal Markov’s racist motivations. The trial judge also found that GM created a poisoned work environment for Johnson, GM did not take Johnson’s complaint sufficiently seriously, and GM’s letter considering Johnson to have resigned was a constructive dismissal.


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Court observed that the offending conduct must be “persistent and repeated unless the incident in question is sufficient, standing alone, to taint the entire workplace.” The Court noted that Johnson was satisfied when Markov was suspended, and only revived his complaint of racism when Markov’s suspension was overturned. The Court found that “Dissatisfaction with the results of a legitimate grievance process cannot anchor a claim for constructive dismissal.”

Regarding GM’s attempts to accommodate Johnson’s return to work, the Court stated that GM did not have an obligation to “to immunize Johnson from any future contact with Markov or other body shop employees.” The Court noted that Johnson had not provided further medical evidence of disability, and that in the absence of such evidence GM was entitled to rely on the advice of its plant physician that Johnson was fit to return to work. It found that, having regard to all the circumstances and to the offers of employment made by GM, its decision to treat Johnson’s refusal to return to work as a resignation was reasonable.

Notably, the Court commented that while the trial judge “appears to have concluded that GM repudiated Johnson’s employment contract by failing to provide him with a discrimination-free employment environment,” this “misconceives GM’s obligations in the circumstances.” While the Court does not elaborate on this point, it suggests that an employer’s response to its employees’ conduct is more important than the unauthorized acts of individual employees when considering whether a workplace is poisoned.

The appeal was allowed and the claim against GM was dismissed.




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2020

“The decision provides an example of the relatively rare situation where the Court of Appeal overturns a trial decision on the facts. Following an

extensive review of the evidence, the Court found that the trial judge’s factual conclusions, and in particular, the findings of racist actions and poisoned work environment, were unsupported by the evidentiary record.

From a legal perspective, the case does not diverge from prior precedent in this area. But two findings of the Court are noteworthy: 1) there is no obligation on the part of an employer to provide a discrimination-free environment, and 2) the issue in assessing a claim of constructive dismissal based on poisoned environment is not what the plaintiff perceived, or the outcome of the investigation, but rather, whether the company took reasonable steps to investigate and address the concerns in light of the nature and extent of the alleged discrimination.”

COUNSEL COMMENTS, Cont. General Motors of Canada Limited v. Johnson, 2013 ONCA 502

Counsel Comments provided by Brett Ledger, Counsel for the Appellant, General Motors of Canada Limited

Brett Ledger


“Excellent speakers – I only dream of being as well educated and well spoken.”

“For a lawyer in private practice who wants to research the law with confidence, it was well worth the price of admission.”

“I really enjoyed the course. I found the information very practical and pertinent to my work.”

Research to a

T

We are pleased to be serving Four Seasons' full afternoon tea during our afternoon presentation. Enjoy an assortment of finger sandwiches, scones with Devonshire cream, opera cake, French macarons, lemon tartlets, and other assorted petit fours, along with a selection of teas or coffee.

FOURTH ANNUAL ONPOINT LEGAL RESEARCH FEATURE COURSE

Legal Research: From Issues to Solutions 2013

Comments from past attendees:

November 28, 2013The Four Seasons Hotel

Vancouver, BC 9:00 am - 4:15 pm

Includes Full Afternon High Tea Service

Earn 6 CPD CrEDits

inCLUDEs 2 HOUrs EtHiCs/PraCtiCE MGMt

COMPOnEnt

“A practical and comprehensive summary of legal research tools and techniques. The presenters really

knew their craft.”

Earn 6 CPD CrEDits

inCLUDEs 2 HOUrs EtHiCs/PraCtiCE MGMt

COMPOnEnt


OnPoint Legal Research L.C. has been researching and preparing memoranda and facta for other lawyers for over 14 years. In

the fourth annual presentation of this course, OnPoint research lawyers and guest research lawyers from Davis LLP, Borden Ladner Gervais, and Dentons Canada LLP will draw from their experience to demonstrate how to map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider” tips, discuss legislative research techniques, and lead an interactive session on how to approach a sample legal issue.

Who should attend?

We have created this course for all levels. It is appropriate for senior lawyers wanting a refresher course or needing to be updated on the lastest techniques, junior lawyers wishing to become better researchers, and students wanting to start off their careers with valuable tips from research specialists.

Paralegals will also benefit from this course.


Ellen Vandergrift, OnPoint Legal Research- Ellen clerked at the Court of Appeal of Alberta before articling and practicing at Fraser Milner Casgrain. She subsequently spent several years as legal counsel to the Queen’s Bench and has now been with OnPoint for over eight years. She is well-suited to appellate work and particularly enjoys researching and analyzing complex legal issues and preparing facta.

Our Panel Knows Research

Chair: Sarah Picciotto, Founder of OnPoint Legal Research- As a clerk to the B.C.S.C. in 1998, Sarah learned the importance of sound legal research. She gained practical experience as a litigator with Edwards Kenny & Bray before leaving practice to establish OnPoint in 2000. Sarah is committed to providing OnPoint’s clients with a competitive edge. She is dedicated to ensuring that OnPoint produces nothing less than exceptional work and offers outstanding service.

Monika Gehlen, Davis LLP- Monika is a partner with Davis LLP, where she specializes in written advocacy, appellate practice, legal opinions, and strategic advice. As a member of the firm's Legal Research and Litigation Practice Groups, Monika has extensive experience in the research and analysis of complex legal issues.

Do-Ellen Hansen, Borden Ladner Gervais- As a partner at Borden Ladner Gervais, Do-Ellen provides complex research analysis and advice on diverse legal issues to private and Crown corporations, banks, and insurers. In the course of her practice, she regularly prepares legal opinions and analyses, litigation briefs, and legal arguments for trials, appeals, and arbitrations.

Michelle Maniago, Borden Ladner Gervais-Michelle Maniago practises in the area of civil litigation and arbitration at Borden Ladner Gervais, with an emphasis on commercial and corporate disputes. She also practises as a legal research lawyer and works with both solicitors and litigators to prepare legal opinions. Prior to joining the firm, Michelle had the opportunity to hone her legal research skills as a clerk with the B.C.C.A.


Meghan Maddigan, Legal Community Liason, Courthouse Libraries BC- Meghan is the point person for training at the library and is committed to helping lawyers succeed in their practice through outreach. Prior to joining Courthouse Libraries BC in 2010, Meghan practiced law for five years with a small firm where she gained first-hand experience learning what is required to conduct successful legal research in private practice.

Eric Sherbine, Dentons Canada LLP- Eric Sherbine is a Research Specialist with Dentons Canada LLP, where he provides legal and business research services. He has substantial legal research experience in both Canada and the United States. Prior to immigrating to Canada, he practiced as an employment and labour lawyer in the US.

Agenda- Legal Research: From Issues to Solutions 2013

8:30- 9:00 Registration and Pastries and Coffee

9:00- 9:15 Welcome from Sarah Picciotto, Founder of OnPoint

9:15- 10:00 Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course”

- The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:00-10:45 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part One: The General"

- Insider tips from research lawyers who perform computer research every day - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool

10:30- 10:45 Coffee break

10:45- 12:00 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part Two: The Specific"

- Pointers on when to use which resource for what task - Cost-efficient uses of electronic resources - Important resources for keeping current

12:00- 1:00 Lunch (on your own, but save room for Full Afternoon Tea Service at 2:30)

1:00- 2:00 Meghan Maddigan- "Tackling Legislative Research Like a Pro”

- Making it modern: How to ensure you are looking at the most current, in-force laws - So many sources, so little time: Where to start and finish when looking at legislation - Working backwards: How to trace specific provisions through time - Who said what: Finding judicial consideration of legislation

2:00- 2:30 Eric Sherbine, "Handling American Research Sources" - Available resources for specific tasks - Free vs. paid sources - What can you reasonably expect to research without U.S. training - Answers to lawyers' commonly asked questions about conducting U.S. research 2:30- 2:45 Break- Prepare for Full Afternoon High Tea Service during next presentation

2:45-3:15 Monika Gehlen , "Presenting Your Work- Writing to Win" - Written advocacy: not just for litigators - The importance of structure and signposts - Persuasive language - The facts, the law, and the boundaries of written advocacy 3:15- 4:15 Group Panel- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Agenda (cont.)

Research to a

T

We are pleased to be serving Four Seasons' full afternoon tea during our afternoon presentation. Enjoy an assortment of finger sandwiches, scones with Devonshire cream, opera cake, French macarons, lemon tartlets, and

other assorted petit fours, along with a selection of teas or coffee.

Date: November 28, 2013- 9:00 to 4:15 (registration and coffee and pastries starts at 8:30) Format: Live Program with MaterialsFeature: Four Seasons' Full Afternoon High Tea Service at 2:30Location: The Four Seasons Hotel, VancouverPrice: Early Bird (before Oct.31): Regular: $475; Paralegal: $375; Student: $225 Starting Nov.1: Regular: $525; Paralegal: $425; Student: $265

SURNAME GIVEN NAME INITIAL

FIRM NAME PHONE EMAIL

Course Registration Form

Position: SOLE PRACTIONER PARTNER ASSOCIATE STUDENT PARALEGAL OTHER __________ Year of Call ______

I’m paying by: Cheque Credit Card (MC or VISA)

CARDHOLDER NAME: CARD NUMBER : EXPIRY:

SIGNATURE:

By Fax: 604.648.8930 By Mail: OnPoint Law Corporation, 178-2498 W.41st Ave, Vancouver, BC V6M2A7

By Phone: 604.879.4280 Email: [email protected]

REGULAR PRICING (Starting Nov.1, 2013)

Regular -------$525 + $26.25 GST = $551.25Student ------ $265 + $13.25 GST = $278.25Paralegal ----- $425 + $21.25 GST = $446.25

EARLY BIRD (Register by October 31, 2013)

Regular -------$475 + $23.75 GST = $498.75Student ------ $225 + $11.25 GST = $236.25Paralegal ----- $375 + $18.75 GST = $393.75



PB

8

OnPoint is a law firm of on-call

research lawyers, all of whom have completed clerkships and litigated with downtown law firms.

Who is OnPoint?

For over 13 years, our firm has completed research and writing projects for lawyers in the private and public sectors, from case summaries to complex memoranda and facta.

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.

“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

“OnPoint’s lawyers are knowledgeable, efficient, effective and reliable. Their work is always proficient and timely. It is a pleasure to work with them. They are an invaluable resource to our firm.”

Angiola De Stefanis, Alliance Lex Law Corp.

“All of us at Taylor Veinotte Sullivan use OnPoint’s researchers on our cases. OnPoint’s expertise in a wide range of complicated commercial litigation is invaluable to a firm of our size and is also a real costs savings to our clients” Carey Veinotte, Taylor Veinotte Sullivan

Sarah Picciotto, B.A., LL.B. Founder of OnPoint Legal Research Law Corp.

T.604.879.4280 [email protected]


OnPoint's Ontario August Take Five

Documents

Transcript of OnPoint's Ontario August Take Five