Daniel Ableser

Following the release of the Court of Appeal's decision allowing the appeal and awarding the statutory pre-retirement death benefit to the appellant, the respondent requested that the court address her entitlement to support under the Succession Law Reform Act (SLRA).

The trial judge had previously dismissed the respondent's SLRA application because she had awarded the death benefit to the respondent, finding no further need for support.

Because the Court of Appeal's decision removed the basis for that dismissal, the court set aside the trial judge's order dismissing the SLRA application and remitted the matter to the Superior Court of Justice for determination.

The deceased was a member of a pension plan who died before the commencement of his deferred pension.

At the time of his death, he was living with a common law spouse but remained legally married to his separated spouse, whom he had designated as a beneficiary along with their daughters.

The Court of Appeal held that because the deceased and his legally married spouse were living separate and apart, the spousal priority under s. 48(1) of the Pension Benefits Act did not apply.

Consequently, the designated beneficiaries were entitled to the death benefit under s. 48(6).

The plaintiff employer sued its former president for breach of a non-competition covenant and breach of fiduciary duty after he successfully bid against the employer on a public municipal tender.

The trial judge used blue-pencil severance to cure an ambiguous and unreasonable temporal restriction in the non-competition covenant and found the employee liable.

On appeal, the Court of Appeal held that blue-pencil severance was unavailable because the severed words were not trivial and there was no evidence the parties would have unquestionably agreed to the contract without them.

The Court also found no breach of fiduciary duty, as the employee did not use confidential information or compete unfairly.

The employee's cross-appeal was allowed and the action dismissed.