Bradley Jay Troup

The appellants (defendants at trial) appealed a judgment that awarded damages to the respondent (plaintiff at trial) for breach of a fixed-term independent contractor agreement.

The Court of Appeal upheld the trial judge's finding that the contract was clear and unambiguous, including the 72-month fixed term and the absence of a termination clause.

However, the Court found that the trial judge erred in holding that independent contractors do not have a duty to mitigate damages, distinguishing them from employees in fixed-term contracts.

Despite this error, the appeal was dismissed because the appellants failed to meet their burden of proving that the respondent did not mitigate his damages.

This endorsement addresses the costs of a summary judgment motion brought by the defendant in a wrongful dismissal action, which was dismissed.

The plaintiff, as the successful party on the motion, sought substantial indemnity costs, arguing the defendant acted unreasonably in bringing the motion after the action was set down for trial without leave.

The court found no justification for substantial indemnity costs, noting the motion raised challenging issues consistent with the "culture shift" favouring proportionate dispute resolution.

The court fixed the plaintiff's costs at $5,400 on a partial indemnity basis, inclusive of disbursements and tax, payable within 30 days, dismissing the defendant's request to defer costs to trial.

Former union members sued a union, its local, and trustees of a health and welfare trust seeking an accounting and payment of alleged surplus contributions accumulated in a “dollar bank” benefit system after their expulsion following employer decertification.

The defendants brought a Rule 21 motion to strike the claim for disclosing no cause of action and argued the Superior Court lacked jurisdiction.

The court held the motion was improperly brought without leave after the matter had been set down for trial and was not brought promptly, as the pleadings had been unchanged for over three years.

In any event, the claim raised numerous factual issues requiring evidence, including the interpretation of trust agreements, the effect of an employee benefit booklet, and entitlement to credits upon termination of union membership.

The court also held that the Superior Court had jurisdiction because issues of fiduciary duty and punitive damages fell outside the Labour Relations Board’s authority.

The appellant appealed the dismissal of his wrongful dismissal action after the trial judge held that he failed to mitigate his damages by refusing an offer to return to the same position, at the same location, salary, duties, and benefits, shortly after a constructive dismissal.

The appeal argued that the trial judge misapplied the governing mitigation principles and wrongly found no workplace acrimony sufficient to make re-employment unreasonable.

The court held that the trial judge properly applied the framework from the leading Supreme Court authorities, made factual and credibility findings open on the record, and reasonably concluded that a reasonable person would have accepted the return-to-work offer.

The appeal was dismissed and appeal costs were fixed in favour of the respondent.

Following dismissal of a wrongful dismissal action after a four-and-a-half-day trial, the court determined the appropriate costs award.

The successful defendant sought partial indemnity costs exceeding $62,000, while the unsuccessful plaintiff argued that the amount should not exceed $40,000.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, including the principles of indemnity and the reasonable expectations of an unsuccessful party, the court reduced the amount claimed.

The court also permitted recovery of modest travel expenses for out-of-town counsel.

Costs were fixed at $50,000 inclusive of disbursements and tax.

An employee with 33 years of service brought a wrongful dismissal action after being laid off and subsequently refusing the employer’s offer to return to work.

The court accepted that the layoff constituted constructive dismissal and that the reasonable notice period would have been 24 months.

However, applying Evans v. Teamsters Local Union No. 31, the court held that a reasonable person would have accepted the employer’s prompt offer of reinstatement because the workplace would not have been hostile or humiliating.

The employee therefore failed to mitigate damages by refusing to return.

The claim for damages in lieu of notice and moral damages was dismissed.

Following dismissal of a motion seeking injunctive relief for alleged passing off, the successful defendants sought costs.

The court considered written submissions on scale and quantum.

Given that the plaintiff had expanded the issues leading to additional cross-examinations and motion materials before narrowing the argument at the last minute, the court found substantial indemnity costs were appropriate.

However, the amount claimed was found excessive due to duplication of effort and lack of detailed particulars.

Costs were fixed at $12,500 all-inclusive.

Following an oral decision allowing the appeal, the successful appellant sought its costs at trial, which it had requested in its written materials but omitted from its oral costs submissions.

The Court of Appeal issued a supplementary endorsement granting the appellant its costs at trial, to be assessed if not agreed.

The respondent was awarded damages at trial for breach of contract after the trial judge found he had accepted an unconditional offer for an early retirement severance package.

The appellant appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in construing the severance plan documents as an unconditional offer.

The Court held that an objective reasonable person in the respondent's position would not have understood the documents to make an unconditional offer, especially since the respondent knew he was being replaced and the program was for workforce reduction.

The action was dismissed.