I recently submitted a paper entitled “The Role of Anger in Mediation” for the Masters course I’m taking at Osgoode Hall Law School in ADR. The paper was well received, and I am in the process of trying to have it published. It is fairly lengthy, but it may be of interest to anyone who participates in mediations, either as a party, as counsel or as mediator. I attach a copy on the link below.
In an action against a company whose financial status is questionable, it is common to consider whether or not it might be possible to sue an individual representative of the company, such as its owner or president, in the hope that if a judgment is not enforceable against the company, it might be enforceable against the individual. Sometimes, such an action is brought as a tactical step, intended to intimidate or unsettle the company’s decision-maker into a quick settlement.
The law is very clear on the point. As a general rule, an individual representative of a corporate entity will not be liable for wrongful conduct unless it can be established that the individual committed what the cases refer to as an “independent tort”. In other words, the alleged wrongful conduct on the part of the individual has to be independent from the tort or breach of contract allegedly committed by the company. Otherwise, and if the individual was simply making decisions on behalf of the company, there is no personal liability.
An interesting twist on the point arose on the facts of a recent Court of Appeal decision, Richards v. Media Experts M.H.S. Inc. and Mark Sherman.
In that case, Ms. Richards sued her former employer, Media Experts, for damages for wrongful dismissal. She also sued Mr. Sherman, the executive chairman of Media Experts, for damages for the torts of intentional and negligent infliction of nervous shock. The alleged shock arose out of the act of termination.
The courts have become very sensitive to any attempt to fix liability on an individual where the claim against his company is problematic.
Mr. Sherman brought a motion to have the claim dismissed as against him, and succeeded. The motion judge noted that the Plaintiff’s employment contract contained a clause limiting the company’s liability for wrongful dismissal to compensation equal to 12 months’ pay. The judge went on to conclude that to permit a claim to proceed against Mr. Sherman would allow the Plaintiff to circumvent that clause, by obtaining compensation over and above the contract amount.
The recent decision of the Ontario Court of Appeal in Di Battista v. Di Battista Farms Ltd. et al. is a useful reminder of the requirements for certainty before a contract will be found to be binding and effective.
In this case, Tony Di Battista worked with his three brothers in construction. Together with their nephew, they started Di Battista Farms Ltd. which owned property in Kleinburg, Ontario.
A dispute arose, and Tony was bought out by the other shareholders. As part of the buyout, they signed a memorandum of agreement indicating that they would all cooperate with either or both of Tony or their nephew if either decided to try to obtain a building permit to build a house on a part of the property.
The word “cooperation” is open-ended and lacks specificity.
About 15 years later, Tony decided to try to obtain a building permit and asked his brothers to consent to his application for a severance of a section of the property. They refused. Tony then sued to enforce the memorandum of agreement.
The judge hearing the matter dismissed Tony’s application, finding that there was not sufficient certainty in the contract. Tony appealed to the Court of Appeal. The Court of Appeal agreed with the judge and dismissed the appeal. Continue reading
The recent Superior Court of Ontario decision in Robert Moore Pharmacy Ltd. et al. v. Shoppers Drug Mart Inc. is an interesting reminder of the legal status of the duty of good faith as it applies to franchises.
In Ontario, franchises are regulated by a specific statute, the Arthur Wishart Act. This statute appears to have been enacted in response to a number of cases in which franchisors appeared to be taken advantage of franchisees in some significant way. I say that because its provisions are extremely favourable to franchisees.
The obligations that it places on a franchisor are onerous. A franchisor’s failure to comply with even the most technical of requirements under the Act may well have disastrous results for it.
Among the more significant policy principles behind the Act is the obligation on franchisors to act in good faith.
In this case, the Plaintiff was a Shoppers Drug Mart franchisee. Its franchise agreement provided for an original one-year term and the potential for two one-year renewal terms. The renewal terms were to come into existence automatically if neither party took the steps to terminate the agreement during its existence by giving notice. Continue reading
A great deal has been written about the revolutionary changes in communication created by social media. The statistics indicate that more and more people are “meeting” online and ultimately marrying. On Facebook, people stay in touch with their friends, parents keep track of what their children are doing, and people post photographs in addition to other information for viewing both publicly and by those identified as “friends” who are given access to private photograph libraries.
The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.
The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.
In personal injury practice, it has become commonplace for insurers to retain investigators to conduct surveillance on Plaintiffs claiming to be seriously injured in the hope of obtaining evidence, primarily photographic, of the Plaintiff engaging in activities which are inconsistent with the claimed injuries.
With Facebook, personal injury plaintiffs who are not careful about their Facebook accounts can hand such evidence over to defendants and their insurers on a platter. This is clearly demonstrated by the recent case of Stewart v. Kempster, a Superior Court decision released in late December, 2012. Continue reading
I would like to take this opportunity to wish everyone a happy and healthy New Year.
I have been writing this blog since the fall of 2011. Since then, there have been over 6,000 visits to it by people all over the world. I am truly overwhelmed by this level of interest, and I am sincerely grateful to you and all of the other readers who have taken the time to review these posts.
I’ve noticed that some of my posts have attracted more interest than others. I continue to try to put forward posts about cases that people might like to consider from a different point of view.
If any of you has any particular issues which you would like me to address, either with reference to a recent case or otherwise, please click on my e-mail address under “Contact” in the right side column, or click on “Leave a Reply” below. I would be delighted to hear from you.
A news story last week involved a woman who filed a Human Rights complaint against a barber who refused to cut her hair. It appears that the barber was a Muslim and declined the woman’s business on religious grounds.
The National Post reported the story in terms of this having been a clash of rights. Soon afterwards, George Jonas wrote a commentary in the National Post criticizing the choice of words and insisting that this was not a matter of competing “rights” at all.
Of course, Mr. Jonas is absolutely right. While the barber had every right to decline the woman’s request for a hair cut, the woman had absolutely no right to require that particular barber to cut her hair or to do anything else. The barber could have declined the business on religious grounds or for any other reason if he chose to do so. The woman could have gone anywhere else she wanted to do for her haircut (and presumably did). Instead, she has filed a complaint with the Human Rights Tribunal of Ontario.
I have only had limited experience with that distinguished institution and its predecessor, the Ontario Human Rights Commission. Unfortunately, my experience tells me that this woman is going to have little difficulty making this poor barber’s life extremely miserable. Continue reading
Irvin Schein 