Andrew H. Monkhouse

The plaintiff in a proposed class action regarding employee misclassification brought a motion to substitute herself with a new representative plaintiff.

The defendant opposed, arguing the new plaintiff's claim was statute-barred and her interests were misaligned with the class because she recently sought work with the defendant as an independent contractor.

The court granted the substitution, finding the new plaintiff had a tenable claim because discoverability of Employment Standards Act entitlements may be delayed when an employer represents a worker as an independent contractor.

The court also found her recent job search did not preclude her from adequately representing the class.

The defendant moved to dismiss the plaintiff's wrongful dismissal action, arguing the court lacked jurisdiction because the plaintiff was an employee covered by a collective agreement and the dispute should be resolved by a labour arbitrator.

The plaintiff argued he was misclassified as an independent contractor and his claim was rooted in a pre-employment contract.

The court dismissed the motion, finding it premature as the existence of a pre-employment agreement is a disputed factual issue that must be determined at trial, not on a pleadings motion.

The plaintiff, Fransic Battiston, sought costs of $162,504.90 after successfully obtaining judgment against Microsoft Canada Inc. for wrongful dismissal.

The defendant argued for a reduction in costs, claiming partial success on some issues and questioning the reasonableness of the hours billed.

The court found the plaintiff to be the successful party, rejecting the defendant's argument of divided success.

However, the court denied the plaintiff's request for substantial indemnity costs due to the plaintiff's failure to be forthright in disclosing the amount of costs when asked during Rule 49 settlement offer negotiations.

The court awarded the plaintiff partial indemnity costs of $120,000, inclusive of disbursements and taxes.

The plaintiff, a long-term employee, was terminated without cause.

The trial addressed the appropriate notice period, entitlement to cash bonuses and merit increases (both for the fiscal year of termination and during the notice period), entitlement to vesting of unvested stock awards, and the defendant's claim of failure to mitigate damages.

The court awarded a 23.75-month notice period, damages for lost bonus and merit increases during the notice period, and damages for unvested stock awards, finding the termination provisions in the stock agreements unenforceable due to lack of proper notice.

The claim for a bonus for the fiscal year of termination was dismissed, and the defendant failed to prove a failure to mitigate.

The plaintiff brought a motion to certify a class action alleging misclassification of salespersons and sales managers as independent contractors, which resulted in the denial of Employment Standards Act entitlements and Canada Pension Plan/Employment Insurance contributions.

The parties largely consented to certification, with the court approving the class definition and common issues, though excluding punitive damages due to a lack of factual basis.

The court also approved a revised litigation plan.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, sought to schedule a motion to stay an individual action and remove plaintiff's counsel due to an alleged conflict of interest, prior to the certification motion for a proposed class action.

The plaintiff, Kabir Singh, opposed this scheduling, arguing these issues should be determined at the certification hearing.

The court, applying section 12 of the Class Proceedings Act, 1992, found that hearing the conflict and stay issues before certification would ensure a fair and expeditious determination, preventing potential delays and issues with adequacy of representation if a conflict were found later.

The court ordered the defendants' motion to be heard before the certification motion.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion to strike various paragraphs from the plaintiff's Amended Statement of Claim, alleging no reasonable cause of action or insufficient particulars.

The plaintiff claimed constructive dismissal, misrepresentation, Human Rights Code violations, and malicious investigation.

The court struck paragraphs related to malicious investigation, misrepresentation, Human Rights Code violations, and negligent infliction of mental suffering, but granted leave to amend for all.

Allegations of common employer and certain paragraphs pleading evidence were allowed to remain.

The court emphasized that pleadings define the scope of discovery and that leave to amend should generally be granted at this stage.

The defendants, Aviva General Insurance Company and RBC Insurance Agency Ltd., sought directions to schedule Aviva General's proposed summary judgment motion before the certification hearing in a class action.

The plaintiff, Kabir Singh, opposed this sequencing request.

The court dismissed the defendants' request, finding that the summary judgment motion would not dispose of the entire proceeding, would require a full evidentiary record, and would likely lead to delays, increased costs, and potential interlocutory appeals, thus not promoting judicial efficiency or settlement.

The applicant, Medha Joshi, brought a motion under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to dismiss a $700,000 counterclaim by Allstate Insurance Company of Canada.

Joshi's initial claim was for wrongful dismissal, alleging discriminatory insurance practices by Allstate against residents of Brampton, primarily visible minorities, which she had publicly discussed.

The court found that Joshi's expressions related to a matter of public interest.

Allstate failed to satisfy the court that its counterclaim had substantial merit or that Joshi had no valid defence, particularly regarding the absence of malice for malicious falsehood and the availability of absolute, qualified, and fair comment privileges for defamation.

Allstate also failed to demonstrate sufficiently serious harm.

Consequently, the motion was granted, and Allstate's counterclaim was dismissed as a Strategic Lawsuit Against Public Participation.

The appellant employer appealed a trial judgment awarding the respondent employee damages for wrongful dismissal.

The trial judge found no cause for termination and awarded damages based on a 19-month notice period, a 2015 bonus, aggravated damages of $25,000, and punitive damages of $100,000.

The appellant challenged each component of the award.

The Court of Appeal dismissed the appeal, finding no reversible errors of law or palpable and overriding errors of fact.

The court upheld the trial judge's reasoning on the notice period, bonus entitlement, aggravated damages based on the employer's threatening conduct and bad faith, and punitive damages reflecting the employer's strategic use of a counter-claim to intimidate the employee.

The plaintiff was terminated without cause after six years of employment as Vice-President of Finance.

Following a threatening email from the plaintiff regarding his severance package, the employer conducted a forensic investigation and discovered he had downloaded copyrighted media using peer-to-peer software on his work computer.

The employer then alleged after-acquired cause.

The court found the misconduct did not amount to just cause, as there was no nefarious intent, no actual harm to the employer, and the conduct was not incompatible with continued employment.

The court also struck down the termination clause for violating the Employment Standards Act, 2000, and awarded the plaintiff 12 months' reasonable notice.

A claim for punitive damages was dismissed.

Following a successful 11-day trial where the plaintiff was awarded $604,627.09 and the defendant's $1.75 million counterclaim was dismissed, the plaintiff sought substantial indemnity costs of $546,684.73.

The defendant argued for a reduced award of $200,000, claiming the plaintiff's costs were unreasonable.

The court awarded the plaintiff the full amount claimed, finding the costs proportionate to the result, justified by the defendant's unfounded fraud allegations, litigation misconduct (including refusal to admit facts, late disclosure, and causing trial delays), and the complexity introduced by the counterclaim.

The court also noted the plaintiff's counsel's superior preparedness compared to the defendant's.

Following the successful certification of a class action against Deloitte, the substituted representative plaintiff sought costs of $480,170.08 on a partial indemnity basis.

Deloitte argued the costs should be significantly reduced due to the narrowing of the claim, the disqualification of the initial representative plaintiff, and alleged over-lawyering.

The court rejected Deloitte's argument that there was divided success, but agreed the claimed amount was excessive.

Applying the factors under Rule 57.01(1), the court reduced the counsel fee and awarded the plaintiff costs fixed at $353,790.88 all-inclusive.

An employer appealed a summary judgment awarding an employee 18 months reasonable notice at common law for wrongful termination.

The motion judge found that the employer breached the termination clause in the employment agreement by failing to consider the employee's years of service, position, and age when fashioning the termination package, thereby repudiating the entire employment agreement.

The Court of Appeal set aside the summary judgment, finding that the motion judge decided the case on a legal theory of liability that was neither pleaded nor advanced by the employee, denying the employer the opportunity to lead responsive evidence and compromising hearing fairness.

The matter was remitted for a new hearing before a different judge.

The plaintiff brought a motion to enforce a settlement agreement in a wrongful dismissal action, specifically disputing the statutory deductions made by the defendant from a $25,000 payment.

The plaintiff argued the payment should be treated as a "retiring allowance" with lower tax, CPP, and EI deductions, while the defendant treated it as employment income based on the settlement wording "payable as wages and subject to all necessary statutory deductions." The court found that the parties had an enforceable settlement and that the defendant had met its obligations, as the agreement left it to the defendant to make "necessary deductions." The court clarified that the ultimate authority to characterize the payment and determine appropriate deductions rests with the Canada Revenue Agency and the Tax Court, not the Superior Court on a motion to enforce settlement.

The plaintiff sought to certify a class action alleging that document reviewers, hired as independent contractors by Deloitte and Procom, were actually employees entitled to benefits under the Employment Standards Act.

The court found some basis in fact for an employer-employee relationship with Deloitte but not with Procom or ATD (a predecessor).

The court certified three common issues against Deloitte but adjourned the motion, requiring the plaintiff to revise the class definition and replace the representative plaintiff due to reliability and disinterest concerns.

The plaintiff, Paul Holmes, brought a motion for summary judgment for wrongful dismissal and breach of contract against Hatch Ltd. after 17 years of employment.

The core issue was the enforceability and interpretation of a termination provision in his employment contract, which stated that the termination package would "take into account your years of service, position and age" as a minimum, or such greater amount as required by statute.

The court found that Hatch Ltd. failed to provide sufficient credible evidence that it genuinely considered these common law factors when determining the termination package, instead relying solely on its interpretation of "contractual obligations" to provide only ESA minimums.

This failure constituted a fundamental breach and repudiation of the employment agreement, rendering the termination clause invalid.

Consequently, the plaintiff was entitled to common law reasonable notice, which the court determined to be 18 months.

Partial summary judgment was granted, declaring this entitlement, with the calculation of specific damages and mitigation issues to be addressed in future proceedings.

The court determined the costs award following a successful summary judgment motion for wrongful dismissal.

The plaintiff sought substantial indemnity costs of $52,000, while the defendant proposed $5,000 to $10,000.

The court initially adjusted the parties' agreed partial indemnity estimate of $35,000 to $30,000 due to both parties prolonging litigation.

Further adjustments were made for counsel's hourly rates and the simplified procedure rule, leading to a partial indemnity award of $27,500.

The plaintiff's Rule 49 offer did not trigger substantial indemnity due to an unpleaded human rights allocation and an insufficient differential in after-tax values.

The plaintiff, a long-term employee, was terminated for cause by the defendant employer, Best Buy, on grounds of conflict of interest and dishonesty.

The plaintiff moved for summary judgment for wrongful dismissal.

The court found that the employer failed to establish either ground for just cause.

The alleged conflict of interest (operating a competing repair service) was based on outdated ads and never materialized, and the accusation of reselling products for profit was unsubstantiated.

The dishonesty claim was also not proven, as the plaintiff's explanations were reasonable or related to a personal medical condition.

The court granted summary judgment, finding the plaintiff was wrongfully dismissed and entitled to 11 months' notice, calculating total damages.

The plaintiff, Deborah Fisher, brought a summary trial action against Group Five Inc. and Thom Hirtz for wrongful dismissal.

The primary issue was whether Fisher was an employee, dependent contractor, or independent contractor.

The court found Fisher to be an independent contractor, dismissing her claim for wrongful dismissal damages but granting her an uncontested claim for unpaid work.

The court also provided a hypothetical assessment of notice period and mitigation had she been found an employee or dependent contractor.