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.

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.