Andrew H. Monkhouse

The appellant appealed a trial judge's finding that she was an independent contractor rather than a dependent contractor.

The appellant conceded the trial judge used the correct legal test from McKee v. Reid’s Heritage Homes Ltd., but argued he erred in its application.

The Divisional Court found that the trial judge properly considered the factors of economic dependency, exclusivity, and permanency, and that his findings were open to him on the evidence.

The appeal was dismissed with costs fixed at $8,000.

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 appellant was wrongfully dismissed after 14 years of employment.

The motion judge awarded a 17-month reasonable notice period but denied damages for lost bonuses, finding the bonus plan required 'active employment'.

The Court of Appeal allowed the appeal, holding that the motion judge erred in principle by focusing on whether the 'active employment' term was ambiguous rather than whether it unambiguously limited the appellant's common law right to damages.

The Court found the term did not oust the common law entitlement and awarded the appellant damages for the bonuses he would have earned during the notice period.

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.

The appellant employee was placed on a temporary unpaid layoff and later claimed constructive dismissal.

The motion judge granted summary judgment to the employer, finding the employee had acquiesced to the layoff.

On appeal, the Divisional Court set aside the order, holding that the motion judge erred in law by finding acquiescence without first analyzing the terms of the employment contract to determine if the employer had the right to lay off the employee, as required by the Supreme Court's two-step test in Potter.

The plaintiff brought a summary judgment motion in a wrongful dismissal action after termination from employment as a job captain.

The employer alleged just cause based on tardiness, poor performance, and leaving work early without permission.

The court held the employer failed to establish cause, noting the absence of documented warnings, reliance on hearsay evidence, and lack of contemporaneous records.

The court also found that language in an employee handbook did not clearly limit the employee to minimum statutory termination entitlements under the Employment Standards Act.

Reasonable notice of three months' pay plus reimbursement of a promised tuition allowance was awarded.

Following acceptance of a Rule 49 offer to settle shortly before a hearing, the court determined the appropriate costs payable to the plaintiffs up to the date of the offer.

The plaintiffs had claimed more than $700,000 but settled for $84,042 plus costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure and considering the proportionality principles reflected in Rule 76, the court found the plaintiffs’ requested costs excessive given the modest settlement relative to the claim.

The court emphasized the importance of proportional litigation and the costs consequences of advancing inflated claims.

Partial indemnity costs were awarded at a reduced amount.

Following success on a summary judgment motion in a wrongful dismissal action, the plaintiff sought enhanced costs based on an unaccepted Rule 49 offer.

The court held that the offer was too indeterminate to trigger Rule 49 consequences because the amount payable to settle was not fixed or knowable at the time of acceptance.

The court also allowed pre-judgment and post-judgment interest that had been overlooked on the summary judgment motion.

Costs were awarded to the plaintiff on a partial indemnity basis in the amount of $31,000 all inclusive.

Following a successful summary judgment motion for wrongful dismissal, the plaintiff sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found the offer was too indeterminate to trigger costs consequences because the principal amount the defendant would have to pay was not fixed or determinable.

The court awarded the plaintiff costs on a partial indemnity basis, fixed at $31,000 all inclusive, and allowed the plaintiff's claim for pre- and post-judgment interest.

The applicant in a human rights complaint sought to amend his application to add two personal respondents and increase the monetary remedy sought.

The respondent opposed the amendments and brought its own request to allow a witness to testify by teleconference.

The Tribunal denied the request to add personal respondents, finding no compelling reason to do so when the corporate respondent could satisfy any remedy.

The Tribunal granted the request to amend the monetary remedy, noting the absence of prejudice.

The Tribunal also granted the respondent's unopposed request for its witness to testify by teleconference from Australia due to financial hardship.

The applicant filed a human rights application alleging workplace discrimination and subsequently commenced a civil action for breach of contract and negligence, which included an allegation of reprisal.

The respondents requested that the application be deferred pending the resolution of the civil action.

The Tribunal found that section 34(11) of the Human Rights Code did not bar the application because the civil action was largely framed in tort and contract and did not seek relief for the same Code violations.

However, to avoid inconsistent findings due to overlapping facts and issues, the Tribunal ordered the application deferred until the civil action is resolved.