Andrew H. Monkhouse

Following a successful motion by the defendants to strike the plaintiff's Statement of Claim with leave to amend, the defendants sought substantial indemnity costs of $51,710.82.

The court found no basis for substantial indemnity costs and considered the partial indemnity claim of $34,100.37 excessive due to over-lawyering.

Taking into account the plaintiff's recent termination and lack of severance, the court fixed costs at $15,000 on a partial indemnity basis, payable in the cause.

Following a decision removing the plaintiff's counsel in either the class action or individual action and staying the individual action, the successful defendant sought partial indemnity costs of $20,000.

The plaintiff opposed, arguing for no costs or a nominal amount due to divided success and duplication of work.

The court found the defendant was successful on the motion, which involved complex issues of conflict of interest and standing.

After a slight reduction for duplication of research from a prior scheduling motion, the court fixed costs at $16,050 plus disbursements and HST.

The defendant brought a motion to remove the plaintiff's counsel from either the proposed class action or the plaintiff's related individual wrongful dismissal action due to a conflict of interest, and to temporarily stay the individual action.

The court found that counsel's duty of commitment to the plaintiff in the individual action conflicted with the sui generis duty owed to the proposed class members, as the actions shared overlapping issues regarding common employment and vacation pay calculation.

The court ordered counsel removed from one of the actions and temporarily stayed the individual action pending the certification motion.

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 plaintiff sought costs of a class action certification motion on a substantial indemnity basis, arguing they 'beat' a Rule 49 offer to settle.

The court noted that the offer was non-monetary and the parties had settled most issues prior to the hearing.

The court held that a settlement is not a victory and awarding costs for negotiating a settlement would disincentivize resolution.

Exercising its discretion under section 131 of the Courts of Justice Act, the court declined to award costs to either party.

In a certified class action regarding whether document reviewers were employees or independent contractors, the plaintiff moved for a further and better affidavit of documents.

The court reviewed 11 categories of requested documents.

The court ordered the production of the defendant's insurance policy under Rule 30.02(3), but dismissed the remaining requests, noting that a party has no obligation to create documents that do not exist, and that requests for privileged communications and judicial inspection were premature or improper.

The plaintiff brought a motion to certify a class action against the defendants regarding the alleged misclassification of non-managerial sales representatives as independent contractors rather than employees.

The parties consented to certification but disputed whether the class should be divided into two subclasses (lead generators and appointment bookers) and whether a second representative plaintiff was required.

The court certified the class action, divided the class into two subclasses for efficiency, and held that the single plaintiff could represent both subclasses as there was no actual conflict of interest.

The plaintiff brought a motion to strike the defendant's jury notice, which was served four and a half months after the close of pleadings.

The defendant argued that the plaintiff had acquiesced to the late jury notice by not formally objecting and by including it in the trial record.

The court found that the plaintiff had objected to the late notice via email and that including it in the trial record was an error of caution, not an admission.

Given the defendant's delay in seeking leave to file a late jury notice and the prejudice to the plaintiff, the court struck the jury notice and ordered the matter to proceed as a non-jury trial.

Following the successful dismissal of the defendant's counterclaim under the anti-SLAPP provisions of the Courts of Justice Act, the plaintiff sought damages under s. 137.1(9) and full indemnity costs under s. 137.1(7).

The court dismissed the claim for damages, finding no evidence that the counterclaim was brought in bad faith or for an improper purpose.

The court awarded costs of $95,173.26, noting that while full indemnity costs are presumptive, the awarded amount was fair and proportionate given that the main action was continuing and some work would be useful in that proceeding.

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.

A senior executive sued for wrongful dismissal after being terminated for alleged financial fraud, while the employer counterclaimed in civil fraud, unjust enrichment, and breach of fiduciary duty arising from accounting treatment, inventory reserves, and intercompany transfers.

The court found the employer failed to prove the alleged dishonest conduct, failed to substantiate its fraud theory through direct witnesses or documentary support, and did not establish just cause.

Applying the Bardal factors, the court fixed reasonable notice at 19 months and awarded salary, bonus, benefits, RRSP contributions, punitive damages, and moral damages.

The counterclaims for civil fraud and unjust enrichment were dismissed.

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.