Employment and Labour Law

Former employees and related parties moved for summary judgment dismissing a counterclaim alleging confidentiality breaches, fiduciary breaches, contractual breaches, inducement of breach, client solicitation, and misuse of confidential business information after the employees left to work for a competitor.

Applying the modern Rule 20 framework, the court held the record did not permit fair and just adjudication of most issues because key facts were disputed, credibility was engaged, and the claim and counterclaim substantially overlapped.

Partial summary judgment was nevertheless granted dismissing the fiduciary duty claim against the receptionist and apprentice hairstylist, as the record disclosed no basis on which either occupied a fiduciary position.

The balance of the action and counterclaim was ordered to proceed to trial, with motion costs left to the trial judge.

In this costs endorsement arising from a wrongful dismissal proceeding, the plaintiff argued that his judgment for 27 months' notice exceeded both his own and the defendant's Offers to Settle, entitling him to substantial indemnity costs or, alternatively, partial indemnity costs forthwith.

The defendant responded that the monetary value of the judgment could not yet be fixed because mitigation income earned during the notice period remained to be deducted.

The court agreed that it was not yet possible to determine whether Rule 49 costs consequences applied.

If the parties could not later agree, costs for the motion could be addressed on a further motion or at trial together with remaining issues.

A long-service legal secretary sued for wrongful dismissal after her employer retired and later asserted cause when she claimed additional notice.

Applying the contextual just cause analysis from McKinley, the court held the alleged insolence, performance deterioration, and absenteeism did not amount to cause, particularly after 26 years of service and in light of condonation.

The court also rejected the mitigation defence and applied the Bardal factors to fix reasonable notice at 21 months.

Damages of $46,407 for wrongful dismissal and $7,500 in aggravated damages were awarded, but punitive damages were denied.

In a wrongful dismissal action previously dismissed for delay, the plaintiff filed non-compliant motion materials that did not clearly identify the relief sought or legal basis.

The court held that the proposed motion appeared on its face to be frivolous, vexatious, and an abuse of process, and that it bore the hallmarks of a proceeding suitable for the abbreviated Rule 2.1 process.

The registrar was directed to issue Form 2.1A notice, the scheduled motion date was released, and both the motion and action were stayed pending the written hearing process.

The applicant sought to enforce a non-competition clause in a locum agreement against a chiropractor who later practised in a nearby town and treated former clinic patients.

The court held the agreement had not expired, but found the restrictive covenant unenforceable because any proprietary interest existed only until the clinic was sold and a non-solicitation clause would have adequately protected the clinic’s interests.

The clause was found to restrain competition generally by prohibiting treatment of former patients rather than merely solicitation.

The application was dismissed and the respondent received costs.

The plaintiff sought an interlocutory injunction to prevent a former employee from continuing employment with an alleged competitor, relying on a non-competition and confidentiality agreement.

Applying the RJR-MacDonald framework, the court held there was no sufficient serious issue because the restraint was overly broad and appeared directed at restraining competition generally rather than protecting a proprietary interest.

The court further found no evidence of irreparable harm or misuse of confidential information, and concluded the balance of convenience favoured the former employee, who would otherwise lose his job and ability to support his family.

The motion was dismissed and costs were fixed in favour of the responding party.

On a summary judgment motion arising from an employee's terminal illness, leave of absence, and subsequent death after an asset sale, the court rejected claims of dismissal, constructive dismissal, bad faith termination, and exemplary damages.

The court held there was no act of termination by the employer and no basis for common law damages.

However, applying the Employment Standards Act and O. Reg. 288/01, the court concluded the contract of employment had been frustrated by illness before death.

The estate was therefore entitled to statutory termination pay and severance pay.

Following a wrongful dismissal judgment, the court released an addendum correcting the pre-judgment interest rate from the post-judgment rate to the proper statutory pre-judgment rate under the Courts of Justice Act.

On costs, the successful plaintiff sought substantial indemnity costs based on offers to settle, but the court held rule 49.10 was not triggered because the judgment was not as favourable as the operative offer.

The court nevertheless considered the offers under rule 49.13, but reduced costs to reflect the plaintiff's unsuccessful assault, human rights, punitive, and aggravated damages claims and to disallow certain disbursements.

Partial indemnity costs of $24,053.70 were awarded against one defendant only, with no costs for or against the bankrupt individual defendant.

The applicant filed a human rights application alleging discrimination in employment, claiming he was forced to retire due to the employer's failure to accommodate his disability during a facility closure.

The Tribunal held a preliminary hearing to determine if the application should be dismissed under section 45.1 of the Human Rights Code.

The Tribunal found that the applicant had previously filed grievances on the exact same issues, which were dismissed by the Grievance Settlement Board.

Concluding that the substance of the application had been appropriately dealt with in the prior proceeding, the Tribunal dismissed the application.

The applicant alleged discrimination and harassment in employment on the basis of disability, claiming she suffered a panic attack at work and was subsequently terminated or forced to resign.

The respondents requested the application be dismissed for having no reasonable prospect of success.

The Tribunal found the applicant failed to establish she had a disability, as the medical evidence provided was vague and did not support her claim of a panic attack.

Consequently, there was no reasonable prospect of proving a connection between the respondents' actions and a Code ground.

The application was dismissed.

The applicant sought to reactivate her human rights application after it was deferred pending the outcome of an Employment Standards Act claim.

The ESA claim concluded on October 24, 2013, but the applicant did not file her request to reactivate until February 5, 2014, well past the 60-day deadline under the Tribunal's Rules.

The Tribunal found that the applicant's ignorance of the time limit and a subsequent family death did not constitute good reasons to relieve against the time limit.

The application was dismissed for delay.

The respondents requested to defer the human rights Application pending the resolution of the applicant's wrongful dismissal action in Small Claims Court.

The Tribunal found that the issues in the civil claim (reasonable notice) and the human rights Application (sexual discrimination and harassment) were distinct.

The Tribunal concluded that deferral was not warranted as there was no real risk of inconsistent findings, and the human rights allegations would not be addressed in the civil proceeding.

The request to defer was denied.

The applicant brought a human rights application against the respondents.

Following the first day of hearing, the Tribunal issued an interim decision ordering the mutual production of documents.

The applicant was ordered to produce employment insurance records, income documents, and evidence of mitigation efforts.

The personal respondent was ordered to produce notes and records relating to the applicant's employment.

The applicant filed a human rights application alleging discrimination with respect to employment because of disability, specifically a failure to accommodate his return to work following an eye injury.

The Tribunal issued a Notice of Intent to Defer because the facts of the application were part of an ongoing union grievance proceeding.

The organizational respondent supported deferral to avoid duplication and inconsistent results.

The Tribunal deferred the application pending the completion of the grievance process, noting that grievance arbitrators have the authority to decide human rights claims.

The applicant alleged discrimination in employment on the basis of sex and disability.

She claimed the respondent changed her working conditions due to her use of fertility drugs, delayed her disability claims, failed to accommodate her workplace injury, and terminated her employment because of her disability.

The Tribunal dismissed the allegations regarding fertility drugs and disability claims for having no reasonable prospect of success.

However, the Tribunal found that the respondent failed to accommodate the applicant's disability when she attempted to return to work and that her disability was a factor in the termination of her employment.

The Tribunal awarded $2,884.62 for lost wages and $10,000 for injury to dignity, feelings, and self-respect, and ordered human rights training and policy development.

The applicants filed separate human rights applications alleging discrimination in employment on the basis of disability following workplace injuries and subsequent terminations.

They requested that the Tribunal consolidate and hear the two applications together.

The respondent opposed the request.

The Tribunal applied the Lattey factors and found that although there were basic similarities, the individual facts did not overlap and the specific issues were quite different.

The request to consolidate the applications was denied.

The applicant filed a human rights application alleging discrimination in employment on the basis of record of offences, claiming he was removed from his regular shift due to pending criminal charges that were ultimately dismissed.

The Tribunal issued a Notice of Intent to Dismiss because the Code only protects against discrimination based on convictions for which a pardon has been granted or provincial offences.

When the applicant failed to respond to the Tribunal's direction for submissions, the application was deemed abandoned and dismissed.

The union appealed a Divisional Court decision quashing a labour arbitrator's award arising from layoffs following government funding cuts to municipal homes for the aged.

The Court of Appeal held that the applicable standard of review was patent unreasonableness and emphasized that a reviewing court must ask whether there is a rational basis for the arbitrator's interpretation, not search for the correct interpretation.

The arbitrator's reading of the collective agreement, treating the specific layoff clause as limiting the general management rights clause, was one the agreement could reasonably bear.

The court further held that economic hardship caused by funding reductions could not justify rewriting the parties' negotiated allocation of risk.

The appeal was allowed, the Divisional Court order set aside, and the arbitrator's award restored.

The appellant prosecutor appealed from the dismissal of an application for certiorari and mandamus after a justice of the peace quashed an information charging an employer with failure to report a workplace accident within three days.

The central issue was whether the reporting breach under s. 21(1) of the Workplace Safety and Insurance Act, 1997 was a continuing offence for limitation purposes under s. 76(1) of the Provincial Offences Act.

The court held that the statutory scheme emphasizes the employer's continuing duty to report, not merely timely reporting, and that the offence continues until the employer complies.

The contrary interpretation would undermine compliance and create an incentive to avoid reporting.

The appeal was allowed, certiorari was granted, and mandamus was unnecessary because the parties had settled.

On a motion to quash an appeal, the moving party argued that a refusal to stay a class proceeding under the Arbitration Act, 1991 was unappealable under s. 7(6) and, in any event, interlocutory.

The court held that where the motions judge determined the arbitration agreement did not govern the dispute, the matter fell outside s. 7 and the statutory appeal bar did not apply.

The court further held that an order refusing a stay pending arbitration was final because it conclusively determined the forum and deprived the responding party of the substantive right to resolve the dispute by negotiation and arbitration.

The motion to quash was dismissed with costs.