Legal Issues: Employer’s obligations and more

Here are some recent cases that came across my desk.

Many cases are reported about the employer’s obligation to accommodate employees’ needs.

In a recent action involving a secretary in a law firm, the secretary suffered from a variety of symptoms and multiple chemical sensitivities. The law firm therefore renovated the 30th floor of the office building and moved the complainant employee’s desk to that floor. However, the secretary never returned to work. She was dismissed by the firm and filed a complaint with the Human Rights Commission.

It dismissed the complaint and held that the dismissal was reasonable because:

(a) The firm reassigned the secretary to a new work place, but she refused to test the new environment;

(b) The secretary refused to supply an updated medical report requested by the law firm.

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The plaintiff and defendant entered an Agreement of Purchase and Sale of property. The property was to be subdivided into six lots and re-zoned.

Five lots were to go to the purchaser and the sixth, with an existing house, was to be retained by the vendor. If the sale could not be completed by the filing of the subdivision plan or a date set out in the agreement, the vendor could terminate the deal and keep a $250,000 deposit (as forfeiture).  At trial, the court held that the house of the vendor required renovations, which held up the subdivision plan and therefore forfeiture of the deposit was proper.

On appeal, the British Columbia court overturned the trial judge. The purchaser was not in a position to complete the deal, quite separate and apart from the issue of remedial work to vendor’s house. No extension had been agreed to so that vendor could terminate.

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A purchaser signed an agreement to purchase a house and obtained a one-year mortgage with a trust company.

The mortgage was cancelled right before closing, because the mortgagor’s credit rating was very low and there were various debts outstanding and collection proceedings against the purchaser.

The purchaser’s lawyer was able to obtain an extension for closing. The mortgage broker arranged a new mortgage (eight per cent for one month, nine per cent for rest of year) with lender’s and broker’s fees payable.

The purchaser mortgagor went into default and the mortgagee sued on the covenant. The purchaser pleaded damages against the mortgagee (cost of loan) and sought indemnity from the lawyer and mortgage broker.

The court refused to hold that the cost of the loan was excessive under the above circumstances and financial status of the mortgagor. There was an urgent need for the mortgage loan, and it was not available elsewhere and not unconscionable.

This is a decision that is based on the reality of the mortgagor’s financial position and the practicality of her avoiding being sued for failure to close a purchase.

Donald H. Lapowich, Q.C. Hon. FRGD is a partner at the law firm of Koskie, Minsky LLP in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and acts for professionals including lawyers, real estate agents, insurance brokers/agents and dentists.