Barry Joshua Goldman

Following a trial for wrongful dismissal where the plaintiff was successful, the court determined the appropriate costs award.

The defendant argued that its offers to settle should impact costs, that costs should be distributed due to the plaintiff's unsuccessful bad faith claims, and that the plaintiff should pay substantial indemnity costs for those allegations.

The court rejected the defendant's arguments, finding the offers did not meet Rule 49 requirements and the bad faith claims, while unsuccessful, were not reprehensible.

The court awarded the plaintiff $171,000 in partial indemnity costs plus disbursements.

Fabiene Evans, a chartered accountant and institutional equity salesperson, was constructively dismissed by Paradigm Capital Inc. after being offered a significantly altered role with reduced responsibilities and uncertain compensation following her breast cancer diagnosis and return to work.

The court found that Evans was not obligated to accept the revised role as mitigation due to its ill-defined nature, uncertain compensation, and the potential for humiliation and loss of dignity.

The court set the reasonable notice period at 11 months and awarded damages for lost salary, performance bonuses, and shareholder bonuses during this period.

The plaintiff's claim for bad faith in the historical calculation of bonuses was rejected, as the employer's compensation process was found to be fair and reasonable.

The defendant sought leave to amend its statement of defence to assert adverse possession and add a counterclaim claiming ownership of disputed land.

The plaintiff argued the amendment constituted withdrawal of an admission because the original defence relied on acquiescence, which would defeat an adverse possession claim.

The court held that the original pleading did not clearly amount to an admission but assumed it might and applied the test for withdrawal of admissions.

The proposed amendment raised a triable issue, the defendant provided a reasonable explanation based on newly discovered aerial photographs supporting historical possession, and no non-compensable prejudice was established.

Leave to amend the pleading and assert the counterclaim was granted.

The insurer, having successfully appealed an arbitrator's decision finding a binding settlement, sought its appeal expenses.

The parties agreed the insurer was entitled to expenses but disputed the quantum and the applicable tax rate.

The Director's Delegate awarded the insurer $3,000 in legal expenses, inclusive of disbursements and taxes, noting the amount was close to the historic norm for successful insurers and that a global assessment rendered the GST versus HST issue moot.

A commissioned sales employee sued his employer alleging negligence after management failed to renew a federal National Standing Offer that enabled sales to a major customer, causing a temporary loss of commissions.

The court considered whether an employer owes a tort duty of care to an employee to maintain profitability or preserve sales opportunities that generate commission income.

The court held that the employment contract did not guarantee sales levels and the employer’s administrative oversight in failing to renew the standing offer did not create a recognized duty of care in tort.

Even if such a duty existed, the plaintiff failed to prove damages because he produced no tax records or reliable evidence of actual income loss during the relevant period.

The claim for lost commissions was therefore dismissed.

The employee appealed a summary judgment order dismissing his misrepresentation claim against his former employer based on the expiry of the limitation period.

The Court of Appeal allowed the appeal, finding that the motion judge's conclusion that there may not have been a definitive decision to breach the contract until 2007 applied equally to the misrepresentation claim.

Therefore, the discoverability of the falsity of the recruitment representation was a triable issue.

The plaintiff sued the defendants for wrongful dismissal and negligent misrepresentation regarding the value of shares he would acquire upon employment.

The defendants sought to stay the action, arguing the dispute should be referred to arbitration pursuant to a shareholders' agreement and the International Commercial Arbitration Act.

The application judge refused the stay.

The Court of Appeal dismissed the appeal, finding that the dispute was not 'commercial' in nature and did not arise out of a 'transaction' as defined in the shareholders' agreement, thus falling outside the scope of the arbitration clause.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent by unilaterally reducing his commission from 18% to 9%.

The trial judge awarded a 15-month notice period, 3 months of Wallace damages for a toxic work environment, and 8 years of unpaid vacation and public holiday pay.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the Bardal factors for notice, the Wallace damages, and the respondent's entitlement to statutory holiday and vacation pay under the Employment Standards Act.

The plaintiffs sought leave to appeal an order made on the eve of trial that struck the action from the trial list, required a formal motion to amend the Statement of Claim before a Master, and ordered substantial costs thrown away.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the trial judge's order, which addressed a unique and complicated situation.

Costs of the leave motion were awarded to the respondents on a partial indemnity basis.

The employee filed a reprisal complaint with the Ontario Labour Relations Board alleging he was dismissed for raising health and safety concerns.

The employer subsequently brought a motion asking the Board to state a case for contempt to the Divisional Court, alleging the employee improperly distributed documents.

The Board consolidated the two proceedings over the employee's objection.

The employee did not testify, and the Board dismissed both the reprisal complaint and the contempt motion.

The Divisional Court quashed the Board's decision, finding the consolidation breached the employee's right to a fair hearing.

The Court of Appeal allowed the employer's appeal, holding that the consolidation was not patently unreasonable and did not breach the duty of fairness, as the evidence would have been admissible in the reprisal complaint regardless, and the employee was not 'charged with an offence' under section 11 of the Charter during the Board stage of the contempt proceedings.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his reprisal complaint against his employer, the TTC.

The Board had consolidated the hearing of the applicant's reprisal complaint with a motion brought by the TTC to state a case for contempt against the applicant.

The Divisional Court held that consolidating the two proceedings violated the principles of fundamental justice and procedural fairness, as it forced the applicant to defend against quasi-criminal contempt allegations while pursuing his reprisal claim, leading to adverse inferences when he chose not to testify.

The application for judicial review was allowed and the matter remitted to a differently-constituted panel.