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Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Morland-Jones v. Taerk, 2014 ONSC 3061

[21] The antics have only gotten worse since then. Ms. Morland-Jones has shouted at the Taerks from her front yard, and Ms. Taerk has given Ms. Morland-Jones “the finger” from her front driveway. The Defendants have apparently called the police on the Plaintiffs numerous times in recent years; the Plaintiffs have responded by retaining a criminal lawyer to attempt to have a peace bond issued that would restrict the Defendants’ movements. All of that has been to no avail.

[22] Now the Plaintiffs have pursued civil litigation. To their credit, or perhaps to the credit of their counsel who has advised them well in this regard, the Defendants have not counterclaimed. Having acted provocatively to egg the Plaintiffs on and to prompt this gem of a lawsuit, the Defendants did not need to bring any claim themselves. The Plaintiffs have been their own worst adversaries.

[23] In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

[24] As I explained to Plaintiffs’ counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs. Litigation must focus on legal wrongs and legal rights – commodities which are in remarkably short supply in this action. As my colleague Perell J. put it in High Parklane Consulting Inc. v Royal Group Technologies Ltd., [2007] OJ No 107 (SCJ), at para 36, “[i]t is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another…”

2. McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39

[1] John Michael McCormick became an equity partner at Fasken Martineau DuMoulin LLP in 1979. In the 1980s, the equity partners — those partners with an ownership interest in the firm — voted to adopt a provision in their Partnership Agreement whereby equity partners were to retire as equity partners and divest their ownership shares in the partnership at the end of the year in which they turned 65. A partner could make individual arrangements to continue working as an employee or as a “regular” partner without an equity stake, but such arrangements were stated in the Agreement to be “the exception”.

[2] In 2009, when he was 64, Mr. McCormick brought a claim alleging that this provision in the Partnership Agreement constituted age discrimination contrary to s. 13(1) of the British Columbia Human Rights Code.[1]

[3] Fasken applied to have the claim dismissed on the grounds that the complaint was not within the jurisdiction of the tribunal and that there was no reasonable prospect that the complaint would succeed.[2] In its view, Mr. McCormick, as an equity partner, was not in the type of workplace relationship covered by the Code.

[4] The issue before this Court, therefore, is how to characterize Mr. McCormick’s relationship with his firm in order to determine if it comes within the jurisdiction of the Code over employment. That requires us to examine the essential character of the relationship and the extent to which it is a dependent one.

3. DBDC Spadina Ltd. v. Walton, 2014 ONSC 3052

[12] On November 26, 2014, College Lane and Gerrard Church 2006 granted collateral debentures to 231 in the amount of $1.35 million each which were registered against title to both the College and Gerrard Street Properties.

[13] The applicants took the position that by seeking to enforce the collateral mortgages, 231 and the Waltons were attempting “to make 14 College Street and 66 Gerrard liable for mortgages that were granted without consideration to the corporate owners”, and the applicants sought to declare both charges void as against them and others pursuant to section 2 of the Fraudulent Conveyances Act.[1]

[14] The larger context in which that claim by the applicants was made can be found in their Amended Amended Notice of Application dated December 17, 2013, where the applicants pleaded that the respondents owned the College and Gerrard Street Properties and numerous “Other Properties”, and went on to allege that the respondents had diverted $22 million in proceeds from the Schedule B Companies in which the applicants had invested into the Other Properties. The applicants seek certificates of pending litigation and blanket charges over all of the Other Properties, a motion which will be heard in July. As set out in their factum, the applicants seek a tracing of their funds into the College and Gerrard Street Properties and constructive trusts in respect of both properties in their favour.

The most-consulted French-language decision was Hydro-Québec c. Construction Kiewit cie, 2014 QCCA 947

[12] Dans un jugement de 81 pages, la Cour supérieure accueille en partie la réclamation de Kiewit à la suite de l’exécution des travaux de construction du barrage de Grand-Mère pour le compte de sa cliente, Hydro-Québec.

[13] Le juge souligne que, à plusieurs reprises, Hydro-Québec a demandé à Kiewit d’effectuer des changements et de mettre en place des mesures d’accélération des travaux, sans tenir compte des coûts supplémentaires et des impacts engendrés. De son côté, Kiewit, de bonne foi, a continué son travail, croyant que les questions monétaires se régleraient plus tard comme l’indiquait Hydro-Québec. Ce faisant, Hydro-Québec n’a pas traité Kiewit comme un véritable partenaire et a profité de l’entrepreneur, manquant ainsi à son obligation de collaboration. De l’avis du juge, c’est la faute la plus importante d’Hydro-Québec et Kiewit doit être dédommagée. Il ajoute, au paragraphe [201], que cette faute n’est pas attribuable à un ou des individus en particulier, mais plutôt à la « façon de faire institutionnelle » dont Hydro-Québec a fait preuve.

[14] D’autre part, il rappelle qu’au cours du procès Hydro-Québec a déposé des offres réelles monétaires sans condition. Kiewit a donc touché 12 515 187 $ en cours d’instance, somme qui doit être déduite de toute autre compensation.

[15] Le juge rejette l’argument d’Hydro-Québec selon lequel les réclamations de Kiewit visent à récupérer les sommes manquantes résultant de plusieurs erreurs dans sa soumission. Selon lui, la soumission reflétait le juste prix à l’époque.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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