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TOPMarch 2017

Effect of Retirement on Spousal Support Obligations

By: Melanie Manchee, Melanie A. Manchee Professional Corporation

Spousal support payors and recipients are increasingly looking to the court for determination of issues around support obligations after, or in anticipation of, retirement. Some clarification has emerged from recent decisions from the Superior Court, Divisional Court and one decision from the Court of Appeal.

Forseeability

For some time there was confusion created by the issue of foreseeability of retirement on a motion to change (vary) spousal support. The argument was: if it is foreseeable that almost everyone will retire at some point, and retirement is not specifically addressed in the original order or agreement, how can it be used as a ground for variation, since, per the principles of Miglin v. Miglin (2003), 66 OR (3d) 736; 224 DLR (4th) 193; 34 RFL (5th) 255; 302 NR 201; [2003] CarswellOnt 1374, it was "foreseeable" at the time of the order or agreement that retirement would happen at some point. There now appears to be consensus, after Droit de Famille 091889, [2009] CarswellQue; 2009 QCCS 3389, that, with an open ended spousal support provision, actual retirement may be considered by courts to be a material change in circumstances, and thus there is jurisdiction to consider variation, even when retirement was not addressed in the original order or agreement. The need to address foreseeability only arises if the original order or agreement included termination previsions which are later challenged.

 

Court Terminates Pollution Enforcement Action As Against Canadian Subsidiary of Chevron

By: Jack D. Coop, Fogler, Rubinoff LLP

On January 20, 2017, the Ontario Superior Court of Justice released a summary judgment decision in the case of Yaiguaje v Chevron Corporation, terminating a civil claim by Ecuadorian plaintiffs against Chevron Canada Limited ("CCL"). That judgment has now been released to the public, and may be found here.
 
The decision is an important one to environmental lawyers, particularly given the recent growth of interest by governments in encouraging corporate social responsibility by companies operating extractive industries on foreign soil.
 
Background

In 2013, the plaintiffs obtained an Ecuadorian judgment for US $9.5 Billion against the parent company, Chevron Corporation. The judgment arose out of alleged pollution caused by Chevron Corporation in Ecuador. When the Plaintiffs were unable to enforce their claim in Ecuador (insufficient assets) or the U.S. (claim dismissed as unenforceable in the U.S. and fraudulent), they attempted to do so in Canada, against CCL, a "seventh level indirect subsidiary" of the parent.
 
An earlier motion by CCL to dismiss the action, as unenforceable in Canada, went all the way to the Supreme Court of Canada. The Supreme Court ruled the Ontario courts had jurisdiction to consider the Ecuadorian enforcement action, but made it clear that its ruling was without "prejudice [to] future arguments with respect to the distinct corporate personalities of Chevron [Corporation] and Chevron Canada".

 


 

Privacy and Property: The Supreme Court clarifies the limits of PIPEDA

By: Kyle Kuepfer & Scott Venton, Fogler, Rubinoff LLP 

The Supreme Court of Canada has recently released a decision that will help clarify the relationship between legitimate business concerns and the privacy interests of individuals. In Royal Bank of Canada v Trang ("Trang"), the Supreme Court removed a number of hurdles that judgment creditors often face when attempting to execute against a judgment debtor's real property. Whereas a judgment creditor was previously required to obtain a debtor's consent or a court order before obtaining a mortgage discharge statement (a prerequisite to a sheriff's sale), the Trang decision allows the same creditor to obtain the debtor's implied consent simply by filing a writ of seizure and sale with the sheriff. At a broader level, Trang makes clear that individuals cannot hide behind the Personal Information Protection and Electronic Documents Act ("PIPEDA") to escape their legal obligations.

The facts in Trang are relatively straightforward. Royal Bank of Canada was a judgment creditor of the Trangs, who owned property that was subject to a mortgage held by Scotiabank. Pursuant to their judgment, RBC filed a writ of seizure and sale against the property. However, when RBC attempted to undertake a sheriff's sale, the sheriff declined to sell the property without first obtaining a mortgage discharge statement from Scotiabank, as required by the Execution Act. Scotiabank refused to provide the mortgage discharge statement, asserting that PIPEDA precluded it from doing so without the Trangs' consent.

At the Ontario Court of Appeal, the majority of a five-judge panel agreed with Scotiabank, concluding that a mortgage discharge statement is "personal information" that is protected from non-consensual disclosure under PIPEDA. Relying on its earlier reasoning in Citi Cards Canada Inc. v Pleasance, the Court of Appeal maintained that RBC's request for the Trangs' financial information did not fit cleanly into any of the exceptions to the consent requirements contained in PIPEDA.
 

 

Looking Beyond Salomon v. Salomon

By:  Alexander Gay, Department of Justice

The last few weeks has seen a great deal of judicial activity on the corporate responsibility front.  The Ontario courts issued a ruling in a long legal battle between Ecuadorian villagers that are looking to collect on a foreign judgment against a related Canadian company for environmental damages in Ecuador:   Yaiguaje v Chevron Corporation, 2017 ONSC 604 (CanLII).  We also saw the issuance of a decision by the British Columbia courts where Guatemalan miners allege that a Canadian mining company is responsible in tort law for the actions of a subsidiary operating in Guatemala that had security guards shoot at miners:   Garcia v. Tahoe Resources Inc., 2017 BCCA 39 (CanLII).  While I do not wish to pronounce myself on the merits of each one of these cases, what I do know is that the law as it stands in common law jurisdictions is struggling to deal with a new corporate reality, namely a reality where related companies that form part of a larger group of companies are allowed to act in concert, yet continue to enjoy distinct legal personality that shelter them from collective responsibility.  The principles of limited liability found in Salomon v. Salomon do not lend themselves to assigning legal responsibility in this new corporate shell game.  While the law has been able to ignore the shortcomings of Salomon v. Salomon principles and rely on various other legal measures to address corporate responsibility between related companies - namely the piercing of corporate veils or the attribution of liability under tort law - the courts have to find a better way to hold related companies that act in concert responsible for wrongdoings.  

 

Published Monthly by The Toronto Lawyers Association.
 

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