In the interesting case of Indcondo Building Corporation v. Sloan, released July 18, 2012, the Ontario Court of Appeal dealt with a situation in which a couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance. 

In 2001, Indcondo Building Corporation obtained a judgment against one David Sloan for about $8 million.  After obtaining the judgment, Indcondo found out that Mr. Sloan had transferred title to his home to his wife about 45 days after having been served with the Statement of Claim issued by Indcondo. 

A couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance.

As a result, in 2002, Indcondo sued the Sloans to set aside that transfer as a fraudulent conveyance. 

Two years later, Mr. Sloan declared bankruptcy.  That had the effect of bringing Indcondo’s action to a halt. 

Shortly thereafter, Indcondo asked the Trustee in Bankruptcy whether or not he planned to continue the attack on the conveyance of the matrimonial home.  The Trustee indicated that because the estate had no money, any such action would have to be undertaken by Mr. Sloan’s creditors.  Continue reading →

In Bennett v. Sears Canada Inc., the Court of Appeal recently dealt with an interesting case involving a former employee claiming post-retirement health and welfare benefits.

In this case, Bennett was employed by Sears Canada Inc. which offered some of its employees such benefits upon retirement provided they qualified.  One of the qualifying requirements was that the employee “must retire from active employment with 20 years or more continuous full-time service”. 

Bennett began working at Sears on a part-time basis in October, 1977.  She did so until May, 1999 when she became a full-time employee.  Approximately 10 years later, Sears terminated her employment due to corporate restructuring.

As a result, during the 32 years that she had worked with Sears, she had worked on a part-time basis for about the first 22 years and on a full-time basis for about the last 10 years.

In 2005, four years before termination, she inquired of the Human Resources Department in the store in which she worked about her eligibility for pension-related retiree benefits.  That request was conveyed to an employee in the HR Service Centre at the Head Office of Sears in Toronto.  Continue reading →

As most people recognize, unless there exists an employment agreement that says otherwise, an employer is entitled to fire an employee with reasonable notice or pay in lieu of reasonable notice.

If an employee is fired without notice or pay in lieu thereof, the termination is wrongful and in breach of the employment agreement between the employer and the employee.  The employee may sue for damages for wrongful dismissal.

Most people are also aware of the fact that in such circumstances, the terminated employee has an obligation to mitigate his or her damages by making reasonable efforts to find alternate employment.

The situation becomes particularly interesting where the former employer offers the former employee re-employment at the same or a related company.  Is the employee obliged to accept such an offer in mitigation of his or her damages?  Continue reading →

The recent decision of the Superior Court in McGregor v. Atlantic Packaging Products Ltd. provides a number of important insights into key aspects of employment litigation.

McGregor had been employed for 25 years by GT French Paper.  He held the title of Vice President of Sales when that employment ended.  He had signed a restrictive covenant prohibiting him from competing in the same business for 18 months.

Just cause is difficult enough to establish in the best of circumstances.

After the end of that employment, he approached the Defendant, Atlantic Packaging, for employment.  Atlantic was a competitor of GT French.  He was hired as a branch manager in a new plant opened by Atlantic Packaging in April, 2005.  He was terminated without any suggestion of just cause about 2 ½ years later at which time he was offered a severance package.  He did not accept the severance package and started this lawsuit in February, 2008.  Over two years later, in April 2010, Atlantic amended its Statement of Defence to allege just cause for the first time. 

When the matter reached trial, the only defence put forward by Atlantic was that of just cause.  Atlantic argued that McGregor had made fraudulent misrepresentations during the hiring process as to sales revenues that would be realized by Atlantic Packaging if he were brought on board. 

The first aspect of the case that is of interest has to do with the nature of the evidence of both sides, which conflicted in a number of important respects. 

Simply put, the trial judge preferred the evidence of McGregor where these conflicts arose.  She found that on critical issues, his evidence was corroborated by e-mails, memos or other documents.  Continue reading →

In my last post, I made a comment about a judge having failed to recuse himself upon the request of counsel at the beginning of a trial on the grounds of reasonable apprehension of bias arising out of a connection between the trial judge’s wife and certain individuals with an interest in the outcome of the case. 

I also referred to an experience which I had had several years earlier in which I was able to have a summary judgment overturned on the basis of bias as evidenced by remarks made by a motions court judge. 

In a recent Court of Appeal decision, Lloyd v. Bush et al., the Court dealt with another situation in which a judge betrayed an apparent bias during the course of a trial, resulting in the decision being set aside and a new trial being ordered.  The circumstances were so unusual (and hopefully interesting) as to bear close examination.

As I had indicated in my last post, the rather high threshold established by the cases for the overturning of a decision on the basis of a reasonable apprehension of bias can be met without a finding of actual bias.  It is sufficient to demonstrate that on an objective basis, a reasonable person with knowledge of all of the facts would conclude that it is more likely than not that a judge would not decide fairly.  The appearance of potential bias is sufficient.

Lloyd v. Bush was a case in which bias was clearly demonstrated by the trial judge’s own statements and actions in several respects.  Continue reading →

I have been involved in a number of cases in which motions have been brought to force an opposing lawyer to give up a file and get off the record for a variety of reasons, but most typically due to an alleged conflict of interest.  In my view, and as a general rule, the threshold to be met to obtain an Order declaring opposing counsel to be in conflict is not particularly high.  But what about judges?

In any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

A number of years ago, I defended a client in a small town in Ontario in a contract case.  The Plaintiff moved for judgment before one of only two judges regularly sitting in that jurisdiction.  For whatever reason, that judge obviously took a significant dislike to my client and not only did I lose, the judge went of his way to make a number of harsh and derogatory statements about him which I found to be uncalled for. 

I launched an appeal in that summary judgment, and I was successful.  However, not only did the Court of Appeal set aside the judgment, it also granted an Order declaring a bias on the part of that particular judge and requiring that the judge refrain from participating in any motions, pre-trial conferences or the trial itself as that matter progressed.  Continue reading →