bcit tmgt 7133 legal case briefs by wesley kenzie may 2010

Copyright © 2010 Arthur (Wesley) Kenzie. All Rights Reserved. of 8

TMGT 7133 Law for Intelligence-Based Business Instructor Dean Palmer Assignment 2 Due Date May 19, 2010 Student ID A00242330 Student Name Arthur (Wesley) Kenzie

Case Briefs Hanis v. Teevan, 1998 CanLII 7126 ............................................................. 2 Williams v. Good Call Productions Ltd., 2003 CanLII 14631 ............................ 6 References ............................................................................................... 8

TMGT 7133 Assignment 2 – Case Briefs

Copyright (c) 2010 Arthur Wesley Kenzie. All Rights Reserved. page 2 of 8

Case Name: Hanis v. Teevan, in the Court of Appeal for Ontario. Case citation 1998 CanLII 7126 (ON C.A.). Court File No. C21503. Parties: Dr. Edward H. Hanis is the Plaintiff, and Appellant in this appeal. James J. Teevan, Andrew K. Bjerring, The University of Western Ontario, Glenn Harris, William Trimble and Stewart McBride are the Defendants, and Respondents in this appeal. Guardian Insurance Company of Canada, Herald Insurance Company, Crum & Forster Of Canada Ltd., Gerling Global Insurance Company, and Kansa General Insurance Company Ltd. are the Third Parties. Litigious History: This is a relatively often cited case in Canada that dates back to October 1986, when Dr. Hanis was fired from his position at The University of Western Ontario. Subsequently, on March 3 1987, he was charged by the City of London (Ontario) Police Department with a criminal offence arising out of his alleged misuse of the computing system(s) at the SSCL. In October 1988, however, he was acquitted of these criminal charges. Dr. Hanis brought an action in the Ontario Superior Court against the university in June 1987, Hanis v. Teevan O.J. No. 981 and later amended his claim to include certain senior employees of the university, presumably Teevan, Bjerring, Harris, Trimble and McBride. His extensive and wide-ranging claims were dismissed at the conclusion of a 64-day trial from October 1993 to February 1994 involving 19 witnesses [1][3][4]. However, he brought an appeal to the Ontario Court of Appeal in June 1998, which is the case brief summarized here. Facts: Dr. Hanis (“Hanis”) was originally hired by The University of Western Ontario (“Western”) in 1972. Western dismissed Hanis in October 16, 1986 with cause and without notice. Hanis was an Adjunct Professor without tenure at the time of his dismissal, as well as Director of the Social Science Computing Laboratory (“SSCL”) at Western. Western alleged that Hanis was using SSCL’s computing systems for his own purposes, “fraudulently and without colour of right”. Hanis submitted that he honestly believed that his work, and the work of the consultants who were employed in the computer laboratory as well as under contract with Hanis’ company, was done within reasonable boundaries of personal use, authorized by the University and for the benefit of the University.



Issues: This case is an appeal by Hanis of an earlier decision by the Ontario Superior Court, dated March 17, 1995, dismissing his various claims against Western and certain of its senior employees. The appeal court has identified “the striking feature of this case” as the failure of Western to provide any opportunity for Hanis to respond to their allegations against him prior to his dismissal . Both “procedural fairness” and “breach of employment contract” were issues reviewed in this appeal. A second issue is with regards Hanis’ claims for copyright interest in software he was designing and developing, and which he paid certain employees of Western to develop for him. Decision: Hanis’ claims against Teevan and Bjerring were “abandoned at the opening of trial” and therefore were not considered on appeal. Hanis’ did not appeal the dismissal at trial of his claims against the other individual defendants, nor did he “press” his claim for inducing breach of contract, and so this case related only to Hanis’ claims for wrongful dismissal and those claims arising out of copyright. The appeal was successful in overturning the original dismissal of Hanis’ wrongful dismissal claim, and awarded Hanis $158,034.54 in damages less any income earned from employment during an 18 month notice period following dismissal. This amount, and notice period, had previously been calculated by the trial judge, and was accepted by the appeal panel/judge. The appeal was not successful in overturning the dismissal of Hanis’ claim of copyright interest. Reasons: With respect to the decision to award damages to Hanis for wrongful dismissal, the appeal panel/judge ruled that Western denied procedural fairness to the Plaintiff, and breached the Plaintiff’s employment contract. Either one of these was considered sufficient to trigger damages for wrongful dismissal. Procedural fairness was denied to the Plaintiff in a number of ways. Western submitted their position “ that there is no general duty at common law under which an employer is required to give an employee a hearing before deciding to terminate the employment”. The appeal panel/judge concluded that “such a duty can arise, however, as a term of the employment contract or because the employee is the holder of an office in which the public has an interest”. Western had submitted that the plaintiff did not hold an “office”. However, the appeal panel/judge held otherwise, declaring that “the appropriate definition of "office" in The New Shorter Oxford English Dictionary (1993) is: a position or place to which certain duties are attached, esp. one of a more or less public character; a position of trust, authority, or service.



The appropriate definition of "office" in Webster's New World Dictionary of the American Language, Second College Edition, (1976) is: a position of authority or trust, esp. in a government, business, institution, etc. (the office of president). There is no doubt that the plaintiff was in a position of authority and trust. He used his own ideas and skills in setting up the SSCL. The way in which he did so was not governed by detailed instructions received from a person in authority over him. His responsibility was to achieve a goal for the University, and he discharged that responsibility with considerable success”. Knight v. Indian Head School Division No. 19 (1990), 69 D.L.R. (4th) 489 was considered for precedence with regards to Procedural Fairness, concluding that “all three of the elements necessary to give rise to a duty to act fairly existed in the case at bar. The decision of the University was final and specific. The appellant held an office and the decision to terminate the employment of the appellant was of great significance to the appellant. The appellant, in my opinion, was entitled to procedural fairness in connection with the decision to dismiss him. He did not receive procedural fairness, because he was given no opportunity before termination to answer the allegation of breach of trust made against him”. The appeal panel/judge acknowledged that the “trial judge had recognized the appellant's right to procedural fairness, but found that it was in conflict with the University's right to dismiss the appellant for the breach of fiduciary duty of which the learned trial judge had found the appellant guilty. He asked himself which right should prevail, and concluded that it should be that of the University, because of the continuing and surreptitious nature of the breach of duty in the face of ample warning that he should cease the conduct involved in the breach, and because the University was entitled to rely on evidence of breach of duty acquired after the dismissal. With respect, the learned trial judge erred in holding that the rights of the appellant and the University were in conflict. Both rights could have been given effect to if the University had given the appellant an opportunity to respond to the accusations against him before dismissal. As was pointed out by L'Heureux-Dubé J. in the Knight case, one of the purposes of imposing procedural fairness is to enable the employee to try to change the employer's mind about dismissal”. Evidence had been presented in the initial trial that Hanis was “energetic, efficient, imaginative and innovative”, that he was “a very good administrator”, and that he “attracted a great deal of money to the University in the form of research grants”. Evidence was also presented that personal use of computing resources at Western was generally seen as a “positive thing”. The allegations against Hanis stand out in contrast to such evidence, and the appeal panel/judge also contrasted the trial judge reaching an unfavourable conclusion regarding the credibility of the appellant with the trial judge in the previous criminal proceeding 5 years earlier, who “appears to have formed a quite different impression as to the credibility of the appellant”. With respect to the decision to uphold the trial judge’s dismissal of the Plaintiff’s claims for copyright, the appeal panel/judge ruled that there was insufficient evidence to prove copyright: that declaring the software as a “personal research project” of the Plaintiff’s is irrelevant to the issue of copyright; that the elements necessary in law for an estoppel against Western were not present; and that the payments to consultants and the



assignments of copyright from them were “ineffective” because the consultants themselves had no copyright to assign to the Plaintiff. Ratio: In a wrongful dismissal action, either breach of employment contract, or failure to honour procedural fairness, can be determinative of awarding damages. In a claim for copyright, ideas are insufficient evidence, but rather an expression of ideas is necessary. Also, copyright ownership is dependent on the facts, not simply on written copyright assignment agreements.



Case Name: Williams v. Good Call Productions Ltd., in the Ontario Superior Court of Justice. Case citation 2003 CanLII 14631 (ON S.C.). Court File No. 02-CV-240143CM1. Parties: Jerome Williams is the Plaintiff, and Defendant by Counterclaim. Good Call Productions Ltd. is the Defendant, and Plaintiff by Counterclaim. Litigious History: There is no prior litigious history to this action. Facts: Jerome Williams (“Williams”) contracted with Good Call Productions Ltd. (“Good Call”) to produce a DVD of a basketball game for promotional purposes. The initial contract price for this work was $50,000 and all of this amount had been paid. However, Good Call presented an additional invoice to Williams for $41,997.50 to cover additional work which Williams had requested, and refused to release the DVD until this additional invoice was paid. An agreement in principle was negotiated directly between Williams and Good Call whereby a final payment would be made, dependent on a viewing of the final DVD by Williams. This viewing was unsuccessful, however, since Good Call provided a flawed DVD to Williams, and the Plaintiff then cancelled the agreement. Counsel was then retained by both parties, and negotiations continued, but from this point all negotiations were done through respective counsel. Again an agreement was reached, this time as recorded in an email dated November 15, 2002, but counsel for Williams subsequently asked again for a final viewing. Good Call then changed counsel, and their new counsel declared the agreement non-binding. Issues: This action is a contract dispute between the Plaintiff Williams and the Defendant Good Call. The Plaintiff is seeking a summary judgement. The Defendant has made a counterclaim but details of this counterclaim are not provided. Counsel for Good Call argued that because the Plaintiff asked for a final viewing of the DVD after their November 15, 2002 agreement, that this constituted a counter-offer by the Plaintiff that had the effect of cancelling any binding agreement made prior to that. Counsel for Good Call also argued that if the November 15, 2002 agreement was a binding agreement, the fact that the Plaintiff subsequently added a condition that had not been agreed to by both parties, effectively repudiated and/or rescinded the agreement. Finally, counsel for Good Call argued that for reasons of economic duress their client should not be held to be a party to the November 15, 2002 agreement.



Decision: The action was decided in favour of the Plaintiff, with costs, since a settlement had been reached between the parties prior to judgment, and this settlement was accepted by the court. This settlement required the Defendant to produce the final DVD upon payment by the Plaintiff of $10,000. Reasons: With regards to the issue of the Plaintiff’s request for a final viewing of the DVD, this condition was introduced by the Plaintiff after a binding agreement was already in place, and as such could not be argued that it was a mere counter-offer. At most, this new condition might cause a repudiation of the prior agreement, however it was decided that this condition was not a fundamental material breach, and did not go to the root of the agreement, and so the argument of repudiation was rejected. Repudiation was also rejected due to it being raised by the Defendant only at the time of hearing this case, which goes against the principles enunciated in G.H.L. Fridman’s The Law of Contract in Canada, 4th edition (Toronto: Carswell, 1999) at pages 640-641. Economic duress as an argument advanced by the Defendant, was rejected based on the definition of economic duress enunciated by Finlayson, J.A. in Stott v. Merit Investment Corp. (1988) 48 D.L.R. (4th) 288 (C.A.) at page 305. Ratio: Once a binding agreement is in place, introduction of a new condition by one of the parties is not the equivalent of a counter-offer having been made. A test of repudiation requires there to be a change or new condition that is a fundamental material breach going to the root of the agreement reached. A request to inspect a final product to ensure it is satisfactory in all pertinent respects does not meet this test. A test of economic duress will fail if negotiations between parties have been done through retained counsel, rather than directly between the parties. In implementing a settlement, the parties and their counsel must act reasonably to maintain the integrity of the settlement process.



References [1] Canadian Legal Information Institute, Hanis v. Teevan, 1998 CanLII 7126 (ON C.A.), Reference found on May 17, 2010 at http://www.canlii.org/en/on/onca/doc/1998/1998canlii7126/1998canlii7126.html [2] Canadian Legal Information Institute, Williams v. Good Call Productions Ltd., 2003 CanLII 14631 (ON S.C.), Reference found on May 17, 2010 at http://www.canlii.org/en/on/onsc/doc/2003/2003canlii14631/2003canlii14631.html [3] Meadows, Jonathan, Harper Grey LLP, Discussion of Hanis v. Teevan [2008] O.J. No. 3909 dated January 2009, Reference found on May 17, 2010 at http://www.harpergrey.com/articles-insnetletter-541.html [4] Canadian Legal Information Institute, Hanis v. University of Western Ontario, 2005 CanLII 47727 (ON S.C.), Reference found on May 17, 2010 at http://www.canlii.org/en/on/onsc/doc/2005/2005canlii47727/2005canlii47727.html

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bcit tmgt 7133 legal case briefs by wesley kenzie may 2010

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