Andrew Jay McCreary

The plaintiffs brought a second status hearing motion to extend the time to set their wrongful dismissal action down for trial.

The defendants opposed, arguing the action should be dismissed for delay after the plaintiffs missed the court-ordered set down date.

The court found the plaintiffs provided an acceptable explanation for the delay, noting that an intervening appeal by the defendants had significantly shortened the time available to complete mediation.

The court held that the plaintiffs' counsel reasonably relied on the defendants' apparent cooperation and that the defendants would suffer no actual prejudice if the action proceeded.

The motion to extend the set down date was granted.

Two organizations, the Ontario Chamber of Commerce (OCC) and the Canadian Association of Counsel to Employers (CACE), brought motions for leave to intervene in an appeal concerning the enforceability of 'without cause' and 'with cause' termination provisions in an employment contract.

The respondent employee opposed the motions, arguing the appeal was a private dispute and intervention would cause duplication and imbalance.

The motion judge found the appeal raised broader public policy issues regarding employment standards legislation.

To avoid the appearance of unfairness and duplication, the court granted leave to intervene to the OCC but dismissed CACE's motion.

At a case conference, the plaintiff sought to prevent cross-examinations on affidavits filed for his motion to enforce a settlement, arguing the action was under the Rule 76 Simplified Procedure which prohibits such cross-examinations.

The defendant corporation opposed, arguing the motion to enforce a settlement is akin to a summary judgment motion requiring cross-examinations.

The court held that Rule 76 is not an absolute bar to cross-examinations in this context and that the two-step approach for enforcing settlements requires both parties to put their best foot forward.

The court extended the deadline for cross-examinations and ordered the plaintiff to pay costs of the case conference.

The plaintiff, a real estate agent, brought a motion for summary judgment after the defendant terminated his fixed-term contract without notice.

The court found that the termination clause did not clearly allow for termination without notice, and any ambiguity was resolved against the defendant who drafted the contract.

The plaintiff was entitled to damages for the remainder of the one-year term.

The court awarded damages of $21,034.01, accounting for the plaintiff's mitigation of damages by finding new employment and a decline in the real estate market.

In a wrongful dismissal action, the Plaintiff sought a further affidavit of documents and a litigation timetable, while the Defendant brought a cross-motion for a sealing order or, alternatively, an order requiring the Plaintiff to provide notice before filing confidential materials.

The court denied the sealing order as premature but granted the Defendant's request for 30 days' notice before the Plaintiff files any designated confidential documents.

The Plaintiff's request for unredacted documents was granted, but broad requests for other staff's performance reviews and hours were denied.

The court declined to impose a litigation timetable, finding the Plaintiff largely responsible for delays.

Costs were awarded to the Defendant.

The Employer applied for judicial review of an Ontario Labour Relations Board decision certifying the Union as the bargaining agent for heavy equipment operators.

The Employer argued it was denied procedural fairness when the Board found its pleadings deficient regarding the status of 18 employees and refused to allow amendments.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the Board applied established pleading standards for construction industry status disputes.

The Court also held the Board's refusal to allow amendments was reasonable due to the prejudice the delay would cause the Union.

The applicant alleged discrimination with respect to goods, services, and facilities on the basis of disability, claiming the respondents issued a trespass notice against her at a courthouse specifically to exacerbate her PTSD.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found that the applicant failed to point to any evidence that would establish a link between the issuance of the trespass notice and her disability.

The application was dismissed for having no reasonable prospect of success.

The plaintiff moved to reopen a prior decision that had set aside an Anton Piller Order obtained against a former employee who joined a competitor, seeking to introduce fresh evidence allegedly showing the defendant and a third‑party competitor misled the court about future competition and misuse of confidential information.

The court applied the test for admission of fresh evidence, requiring proof that the evidence could not have been obtained earlier with reasonable diligence and that it would probably have changed the result.

The alleged new material largely concerned post‑hearing developments, including lobbying activities, industry publications, and a later government refit contract, which at most demonstrated potential future competition.

The court held that such evidence was irrelevant to the purpose of an Anton Piller Order, which is limited to preserving evidence of past wrongdoing.

The moving party therefore failed to show the evidence would have altered the earlier decision or remedied the prior failure to provide full and frank disclosure.

The respondent requested an adjournment of the scheduled hearing due to the unanticipated illness of its counsel.

The applicant's counsel did not oppose the request.

The Tribunal granted the adjournment, finding that the illness constituted an exceptional circumstance justifying the request, and directed the Registrar to reschedule the hearing for four consecutive days.

The applicant union sought judicial review of an arbitrator's decision denying a retirement gratuity to a teacher who resigned following a criminal conviction for sexual assault.

The arbitrator found that under the collective agreement, the teacher did not retire 'for the reason of age' but rather because of his criminal conviction, and thus was not entitled to the gratuity.

The Divisional Court applied the reasonableness standard of review and upheld the arbitrator's decision, finding her interpretation of the collective agreement language to be intelligible, defensible, and within the range of acceptable outcomes.

A former senior employee moved to set aside an ex parte Anton Piller Order obtained by his former employer after he resigned and joined a competing shipbuilding company.

The employer alleged the employee had downloaded thousands of pages of confidential documents and might misuse them in connection with government shipbuilding bids.

On review, the court held that the stringent requirements for an Anton Piller order were not met, particularly the requirements of very serious damage and a real risk that evidence would be destroyed.

The court also found that the moving party had failed to make full and frank disclosure on the ex parte motion, including misstatements regarding an alleged competing government bid and the competitive relationship between the companies.

Given the absence of serious harm, the availability of less intrusive remedies, and the disclosure deficiencies, the Anton Piller order was set aside.

The appellant appealed the dismissal of his action for common law severance damages for wrongful dismissal.

He argued that a clause in his employment contract was void because it attempted to contract out of the Employment Standards Act regarding the inclusion of bonuses in termination pay.

The Court of Appeal upheld the motion judge's finding that the clause, read in context, preserved the appellant's statutory entitlements.

The appeal and the respondent's cross-appeal on costs were both dismissed.

The applicant filed a human rights application alleging discrimination in employment.

The application was deferred pending the outcome of an Employment Standards Act claim.

After the ESA claim concluded, the applicant failed to file a request to reactivate the human rights application within the 60-day time limit under Rule 14.4, waiting over 12 months to do so.

The applicant argued that a severe back condition and ignorance of the rules caused the delay.

The Tribunal rejected these explanations, finding the applicant was capable of filing lengthy submissions during the period of alleged incapacity and had been informed of the rules.

The application was dismissed for delay.

The employee brought a motion for summary judgment seeking a declaration that a termination clause in his employment agreement was void for contracting out of minimum standards under the Employment Standards Act, 2000.

The dispute centered on a provision stating that bonuses would not be included in termination pay calculations except as otherwise agreed or required by statute.

The employee argued the clause unlawfully waived ESA rights contrary to s. 5(1).

The court held the provision, read harmoniously with the clause limiting termination entitlements to ESA minimums, did not contract out of the statute and simply confirmed bonuses would be included where required by law or later agreement.

The motion was dismissed and the action was summarily dismissed.

The respondent requested to defer the applicant's human rights application pending the outcome of her concurrent claim under the Employment Standards Act.

Both proceedings involved the same facts surrounding the termination of her employment and alleged breaches related to pregnancy and parental leave.

The Tribunal granted the deferral to avoid adjudicative duplication and the risk of inconsistent findings, noting that the remedies available under both statutes are potentially similar.

The applicant filed an application alleging discrimination in employment on the basis of disability.

A preliminary hearing was scheduled to address the respondent's requests for dismissal or deferral.

The applicant failed to appear at the hearing despite receiving proper notice.

The respondent requested that the application be dismissed as abandoned.

The Tribunal granted the request, noting that applicants have a responsibility to participate in proceedings and attend scheduled hearings.

The application was dismissed.

The applicant, who had diabetes and other health issues, mistakenly believed she had contracted tuberculosis and informed her employer.

She was dismissed shortly after, ostensibly for poor judgment in coming to work and for making a discriminatory remark about a co-worker.

The Tribunal found that the employer failed to inquire into her medical situation and that the dismissal was partly motivated by a desire to avoid accommodating her future disability-related absences.

The Tribunal awarded compensation for lost wages and $20,000 for injury to dignity, feelings, and self-respect.

The City of Ottawa applied for judicial review of an arbitrator's award which found that the City failed to provide uninterrupted eating periods to paramedics, contrary to the Employment Standards Act.

The City argued that the collective agreement provided a greater benefit by paying for all eating periods and using best efforts to keep them uninterrupted.

The Divisional Court dismissed the application, finding that the arbitrator's conclusion that the collective agreement did not provide a greater benefit than the statutory right to time off was not patently unreasonable.

Following an appeal in which the appellant IBM enjoyed substantial success, the Court of Appeal fixed the appellant's costs at $12,500 all inclusive.

The employee was dismissed for cause after making a threat of violence while on short-term disability.

A jury found no just cause for dismissal and awarded 9 months' notice, 4 months' Wallace damages, $1,000 in aggravated damages, and $22,000 in punitive damages.

The employer appealed.

The Court of Appeal upheld the jury's findings on lack of just cause and Wallace damages, but reduced the notice period to 4 months, finding 9 months unreasonable for a short-tenure, non-managerial employee.

The Court also set aside the aggravated and punitive damages because the jury had explicitly rejected the only pleaded independent actionable wrong (intentional infliction of mental distress).