Alan Riddell

Following a successful application for wrongful dismissal where the applicant was awarded ten months' notice, the parties could not agree on costs.

The applicant sought $74,524.59 on a substantial indemnity basis, while the respondent argued for partial indemnity costs of approximately $30,000.

The court found that neither party's offers to settle triggered Rule 49.10 and that substantial indemnity costs were not warranted.

The court awarded the applicant costs on a partial indemnity basis for the application, a motion to amend, and an abandoned motion to compel, fixing the total all-inclusive costs at $47,000.

The applicant, a 36-year-old controller with six years of service, was terminated without cause.

The employer paid her statutory entitlements under the Employment Standards Act (ESA) and relied on the termination clause in her employment contract to deny common law notice.

The applicant brought an application arguing the termination clause was void.

The court found that the 'for cause' provision violated the ESA by allowing termination without notice for common law cause, which is a lower standard than the ESA's 'willful misconduct' standard.

Applying Waksdale, the court held that this rendered the entire termination clause void.

The court also found the 'without cause' provision independently violated the ESA by excluding benefits and bonuses during the notice period.

The court awarded the applicant 10 months of common law notice, less mitigation earnings and statutory amounts already paid.

On appeal from a summary judgment order in a wrongful dismissal action, the Court of Appeal considered whether an employee's pre-acquisition service could be waived for purposes of calculating statutory termination and severance pay under the Employment Standards Act.

The employee was hired in 1980 by Bakermet, became a one-third owner, and received $17.16 million when the company was sold to ArcelorMittal in 2008.

He continued employment under successive fixed-term agreements until termination in 2015 at age 58.

The motion judge found the employee had waived pre-2008 service and was limited to six months' notice under the 2014 employment agreement.

The Court of Appeal reversed, holding that statutory entitlements cannot be waived, that the termination clause violated the Employment Standards Act, and that the employee was employed on an indefinite basis despite fixed-term language.

The court also rejected the employer's counterclaim for breach of restrictive covenants and fiduciary duties.

Following a summary judgment motion where the plaintiff was awarded $92,500 for wrongful dismissal and successfully defeated the employer's counterclaim regarding restrictive covenants, the plaintiff sought partial indemnity costs of $168,646.51.

The defendant argued no costs should be awarded as the damages matched their termination offer, and that the costs claimed were disproportionate.

The court found the plaintiff was substantially successful, noting the importance of defeating the restrictive covenants, and awarded the plaintiff all-inclusive costs of $150,000.

The plaintiff, Steven Kerzner, brought a motion for summary judgment in a wrongful dismissal action against American Iron & Metal Company Inc. (AIM).

Kerzner sought common law notice based on 35 years of service, arguing that termination provisions and restrictive covenants in his fixed-term employment contracts were invalid and unenforceable.

AIM counterclaimed for breach of non-solicitation and non-competition clauses and fiduciary duties.

The court found that the termination provisions were valid based on a 2008 release limiting service to 7 years for ESA purposes, but the non-competition and non-solicitation clauses were unreasonable and unenforceable given the fixed-term nature of the contract and broad geographic scope.

The court dismissed AIM's counterclaim for breach of restrictive covenants and fiduciary duty, and held that Kerzner was entitled to the contractual termination payment without a duty to mitigate.

An application for wrongful dismissal where the enforceability of a termination clause limiting notice to Employment Standards Act minimums was at issue, along with the effect of an erroneous initial termination and subsequent re-hiring.

The court found the termination clause enforceable, supported by consideration.

It ruled that the initial termination was effective, but the employee's immediate re-hiring occurred under the same contractual terms.

The applicant was awarded seven weeks' notice under the ESA, plus benefits and mobile phone costs, significantly less than the nine months' common law notice sought.

Following dismissal of an appeal from a costs assessment arising out of a defamation action commenced under the Simplified Procedure, the court determined the appropriate costs of the appeal.

The responding party sought more than $29,000 in costs relying on an offer to settle and substantial indemnity rates.

The court emphasized the principles of proportionality and the reasonable expectations of the losing party in fixing costs, drawing on appellate authority cautioning against rigid cost formulas.

Finding the matter straightforward and the claimed fees disproportionate, the court fixed costs in line with a reasonable settlement offer previously made by the appellant.

The plaintiff brought a motion seeking an order compelling foreign affiants of the defendants to attend in Ottawa or London, England for cross‑examination on affidavits filed in support of a forum non conveniens motion.

The defendants opposed the request and proposed that the cross‑examinations occur by video conference from Iraq, noting that they had not attorned to the jurisdiction of the Ontario court.

Applying Rule 34.07 of the Rules of Civil Procedure and the governing “just and convenient” test for examinations of persons residing outside Ontario, the court held there is no presumption for or against video conferencing.

Considering proportionality, travel costs, logistical challenges, and modern availability of technology, the court determined that video conferencing was the most appropriate method.

The motion was dismissed and the cross‑examinations were ordered to proceed by video conference, with arrangements and initial costs divided between the parties.

Appeal from an assessment officer’s decision awarding costs following settlement of a defamation action commenced under the Simplified Procedure.

The appellant argued the assessment failed to properly apply proportionality and the reasonable expectations of the losing party.

The court held that the assessment officer appropriately considered the Rule 58.06(1) factors, including the significance of reputational harm and the defendant’s litigation conduct, and reasonably discounted the claimed fees.

The officer’s conclusions reflected no error in principle, and the substantial indemnity costs awarded for the assessment hearing were also upheld.