Professional Documents
Culture Documents
661; 2008
SCC 20
Held: appeal dismissed
Ratio: when employee ended employment contract without notice,
employer required to pay damages in lieu of notice, BUT
requirement is subject to employee making a reasonable effort to
mitigate damages by seeking alternate source of income.
Employer bears onus of demonstrating both that employee has failed
to make reasonable efforts to find work and that work could have Mitigation Ch.1(IV)(A)
been found. Would a reasonable person take the job? Relevant
factors include salary offered is the same, working conditions,
critical element that employee not obliged to work in atmosphere of
embarrassment
Nan v. Black Pine Manufacturing Ltd. (1991), 55 B.C.L.R. (2d) 241, Betterment Ch.4(II),(III)
[1991] B.C.J. No. 910
Facts: negligent destruction of property, issue was proper measure of
damages, D didn’t prove that property replacement would be a
betterment
Held: appeal dismissed
Ratio: reinstatement was the beginning of an assessment of damages
and judge not wrong on facts in concluding it was the end as well,
without any deduction for pre-loss depreciation or post-reinstatement
betterment
They lost their family home, which is the nature of their damage and
not some diminution in the value of their land. Fair compensation
requires that they be given back what they had before (the only way
is to award sum reasonably necessary to restore property to condition
in which it was before D effectively destroyed it)
Jamieson Laboratories Ltd. v. Reckitt Benckiser (2015), 130 C.P.R.
(4th) 414, 2015 FCA 104
Facts: Jamieson prohibited with injunction from using word
OMERGARED and recall of products and materials using the word.
Held: appeal dismissed
Ratio: Reckitt at risk of irreparable harm if injunction not issued to
prohibit Jamieson potential infringing behaviour, balance of
Interlocutory
convenience favoured Reckitt, Jmieson engaged in re-branding well Ch.8(V)
Injunctions
aware that Reckitt might take legal action against it.
Reckitt made serious issue of potential trademark infringement.
Potential harm would be impossible to quantify if Jamieson was
permitted to continue to undermine market position in Canada. To
avoid potential damage to its reputation, Jamieson granted variation
to injunction to remove the word and replace it within 30 day period
for complying with injunction
Potash Corp. of Saskatchewan Inc. v. Barton (2013), 427 Sask. R.
206, 2013 SKCA 141
Facts: Barton agreed to provide info on antitrust pricing activities to
private law firms engaged with PCS, PCS sued Barton and obtained
interlocutory injunction, injunction set aside and PCS discontinued
action. After injunction P did not work as lawyer again, sought
damages for loss of income and mental distress (psychological
stress), reimburse for solicitor fees because injunction resulted in
Interlocutory
Barton needing legal assistance Ch.8(XI)
Injunctions
Held: appeal allowed in part, cross appeal dismissed
Ratio: award for mental distress should be increased (to 50k), Barton
entitled to damages for loss of income and pension benefits
Appeal from refusal to award punitive damages dismissed
Injunction prevented Barton from obtaining work and made serious
allegations that called reputation into question, entitled to damages
for loss of income and pension benefits until 65, damages calculated
based on base income of 109k
PCS’s actions high handed and vindictive but did not amount to
abuse of process and therefore no basis to award punitive damages
Sibley & Associates LP v. Ross (2011), 106 O.R. (3d) 494; 2011
ONSC 2951
Facts: P brought up action against former employee and mother for
damages for conversion and fraud, applied for interim Mareva
injunction
Held: application granted in part
Ratio: In cases of fraud, Mareva requirement that there be risk of
Mareva
removal or dissipation can be established by inference, as opposed to Ch.8(XI)(B)
Injunctions
direct evidence. Inference can arise from circumstances of fraud
itself
Evidence of fraud was so strong in this case that coupled with
surrounding circumstances, gave rise to inference that there was real
risk that D would attempt to dissipate or hide assets or remove them
from jurisdiction. Appropriate to grant Mareva order freezing D’s
bank accounts
Carey v. Laiken, [2015] 2 S.C.R. 79, 2015 SCC 17
Facts: contempt proceedings against C alleging breach of terms of
Mareva by returning 400k to S for whom holding it in trust.
Injunction enjoined any person with knowledge of order from
disposing of or dealing with assets of various parties (such as S)
Held: appeal dismissed, in contempt. Mareva injunction prohibited
dealing with money held in trust and C’s conduct showed he
understood that.
Ratio: all that is required to establish civil contempt is proof beyond
reasonable doubt of intentional act or omission that is in breach of a
clear order of which alleged contemnor has notice. Even assuming
existence of funds protected by solicitor-client privilege at the time Mareva
Ch.8(XI)(B)
of transfer, C’s assumed duty to guard privilege did not conflict with Injunctions
duty to comply with order.
Contempt proceedings: liability phase (where case on liability
proceeds and defence is offered), and if liability is established, a
penalty phase. Once contempt has been found, finding is usually
final and may only be revisited in certain circumstances (if they
comply with their order, purges contempt, new facts or evidence
come to light). Evidence here should have been filed in the first
hearing.
Party faced with contempt motion is not entitled to present partial
defence at liability stage and then have a second “bite at the cherry”
at penalty stage. Would defeat the purpose of the first hearing.
Mountain v. Mountain Estate (2012), 112 O.R. (3d) 721, 2012
ONCA 806
Specific
Facts: G claimed oral agreement with parents if he stayed on farm Ch.9(IV)
Performance
and farmed with them, would receive farmland and assets if his
parents stopped farming. Died and no assets transferred to G before
death. H (wife) and L (daughter) as D, L filed counterclaim, H died
before trial.
Held: appeal allowed, new trial required
Ratio: trial judge erred in concluding that because there were no
signed documents, no oral agreement.
Valid and binding oral agreement doesn't depend on existence of
formal written document but terms for the purchase and sale of real
property are the parties, property and price. If those are agreed on
then contract may be found without need for evidence of written
agreement.
Also erred in application of doctrine of part performance. Doctrine
of part performance not limited to consideration of acts of P and
need not be consistent only to alleged contract
McConnell v. Huxtable (2014), 118 O.R. (3d) 561, 2014 ONCA 86
Facts: action brought for unjust enrichment seeking remedial
constructive trust in real property owed by respondent, sought
monetary reward. Respondent brought motion for summary
judgment dismissing action as statute-barred as not brought within 2
year limitation period in Limitations Act 2002. Motion judge found
10 year limitation in Real Property Limitations Act applied. No
legislative gap and no limitation period for action
Laches Ch.11(V)
Held: appeal dismissed, 10 year limitation
Ratio: claim for unjust enrichment in which claimant seeks remedial
constructive trust in another’s property is an action to recover land
within Real Property Limitations Act. “Recover” means to obtain
land by judgment of court, and seeking equitable interest in land
through imposition of constructive trust. 10 year limitation applied,
P’s alternative claim for monetary award sheltered under s4.
Limitations Act applied to equitable claims
Tang v. Zhang (2013), 41 B.C.L.R. (5th) 69, 2013 BCCA 52
Facts: deposit “on account of damages” and because vendors able to
sell property for higher price, no damages suffered and not entitled
to deposit
Held: appeal allowed, deposit forfeited
Ratio: Agnosti v Winter wrongly decided, no longer good law. In
light of purchaser’s failure to complete purchase, deposit forfeited to
vendors. Deposit generally forfeited by buyer who repudiated
Remedy
contract and such forfeiture not dependent on proof of damages. Ch.11(IX)
Stipulation
Contractul term forfeiting deposit “on account of damages” did not
alter nature of deposit