Bram A. Lecker

The plaintiff, a manager with 30 years of service, was summarily dismissed after slapping a female subordinate's buttocks in front of other male colleagues.

The plaintiff sued for wrongful dismissal, claiming the touching was accidental and a joke.

The court applied the McKinley contextual analysis and found that the plaintiff's conduct constituted serious sexual harassment.

The court held that the plaintiff's lack of remorse and failure to understand the seriousness of his actions irreparably breached the employment relationship.

The action was dismissed, with the court finding the employer had just cause for termination.

The appellant company appealed a trial decision finding that two kitchen cabinet installers were dependent contractors entitled to 26 months' reasonable notice upon termination.

The appellants argued the workers were independent contractors because they had performed some work for a competitor in the two years prior to termination.

The Court of Appeal dismissed the appeal, holding that exclusivity must be assessed over the full history of the relationship, during which the workers had served the company almost exclusively for over 25 years.

The Court also upheld the 26-month notice period, finding that the workers' age, length of service, and economic dependence constituted exceptional circumstances justifying an award beyond the usual 24-month cap.

The respondent, a 38-year employee of the Danbury group of companies, was terminated without cause at age 73 and denied compensation or pension payments.

The trial judge found the various appellant companies jointly and severally liable for wrongful dismissal and pension obligations under the common employer doctrine.

The Court of Appeal dismissed the employers' appeal, affirming the trial judge's factual findings that the companies were sufficiently interconnected to be considered a common employer, including a newly formed entity that the respondent helped establish prior to his termination.

The plaintiffs, long-time kitchen cabinet delivery and installation workers who had been reclassified from employees to purported independent contractors in 1987, sought damages after termination without notice.

The court held that the relationship fell within the intermediate category of dependant contractors, emphasizing the plaintiffs’ near exclusivity, the defendant’s effective control, the integration of their work into the defendant’s business, and the absence of any real entrepreneurial opportunity.

Having regard to their long prior service and the overall relationship, the court awarded 26 months’ reasonable notice damages.

The action against one incorrectly named corporate defendant was dismissed without costs.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, claiming the respondents failed to accommodate his medical restrictions upon his return from a medical leave.

The respondents requested that the application be dismissed under section 34(11) of the Human Rights Code, arguing that the applicant had already commenced a civil action seeking remedies for the same alleged Code infringements.

The Tribunal found that the civil action arose from the same facts and sought remedies for the same alleged Code violations.

The Tribunal held that section 34(11) acts as a mandatory bar to the application, even though the individual respondents were not named in the civil action.

The application was dismissed.

The applicant alleged discrimination on the basis of sex and family status after a McDonald's employee allegedly made a passing comment about her pregnancy during a dispute over a drive-thru order.

The Tribunal held a summary hearing under Rule 19A to determine if the application had a reasonable prospect of success.

The Tribunal found that a passing comment referring to pregnancy, without more, does not constitute discrimination or harassment under the Code.

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

The respondent employer brought a preliminary motion to dismiss the human rights application on the basis that the applicant had already commenced a civil action for wrongful dismissal arising from the same facts.

The Tribunal found that the civil action included claims for damages based on the employer's alleged failure to accommodate the applicant's disability under the Human Rights Code.

Applying section 34(11) of the Code, the Tribunal held that the application was barred because the applicant had asked a court to find a Code infringement and award damages.

The application was dismissed.

The applicant filed a human rights application alleging discrimination on the basis of disability after being required to terminate her employment to receive long-term disability benefits.

Prior to the application, she commenced a wrongful dismissal action in the Superior Court of Justice that explicitly pleaded and relied upon the Human Rights Code.

The respondent requested that the application be barred under s. 34(11) of the Code.

The Tribunal found that the civil proceeding dealt with the same allegations and subject matter, and that the omission of a specific request for an order under s. 46.1 in the civil claim did not prevent the application of the s. 34(11) bar.

The application was dismissed for lack of jurisdiction.

Following a successful appeal regarding entitlements under the Employment Standards Act, the appellant sought substantial indemnity costs of approximately $31,000 for the entire action.

The respondent argued for no costs or partial indemnity costs of $5,000.

The Divisional Court rejected the request for substantial indemnity costs, noting the offers to settle did not strictly comply with Rule 49.

Applying principles of proportionality and reasonable expectations, the court awarded the appellant partial indemnity costs fixed at $4,500 for the motion and $6,000 for the appeal, plus disbursements.

The appellant appealed a trial decision dismissing his claim for constructive dismissal.

He argued that his employer's requirement that he work closing hours without additional pay, and the delayed payment of his disability benefits, constituted a fundamental breach of his employment contract.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant's working hours were to be adjusted and compensated, and that the delay in benefits payment was an administrative error that was ultimately rectified.

The appellant employee appealed a decision dismissing his motion for summary judgment for wrongful dismissal damages and ESA entitlements.

The motion judge had held that ESA standards were only enforceable through administrative procedures and were alternatives to common law damages.

The Divisional Court allowed the appeal, holding that ESA entitlements can be claimed in a civil action and are not subject to mitigation, as they are statutory minimums, not damages.

The Court granted summary judgment for the outstanding balance of the appellant's ESA entitlements.

The respondent/defendant brought a cross-appeal regarding costs following a wrongful dismissal action under the Simplified Procedure Rule where the plaintiff sought $25,000.

The defendant had made a Rule 49 offer of one month's salary which the plaintiff did not accept.

The Divisional Court allowed the cross-appeal, finding no reason to deny the successful party its costs.

The court fixed costs for the trial, appeal, and cross-appeal at $10,000 all-inclusive, payable by the appellant/plaintiff to the respondent/defendant.

The appellant appealed the dismissal of his wrongful dismissal claim.

The trial judge had found that a mutual release signed by the appellant was a complete defence to the action, as there was no evidence of coercion or unconscionability.

The appellant also appealed the trial judge's decision to allow an amendment to the statement of defence at the opening of the trial.

The Divisional Court found no merit in either ground of appeal and dismissed the appeal.

The appellant appealed a decision by the Board of Directors of the respondent denying its reaccreditation as a member agency.

The Divisional Court determined the standard of review was correctness.

The court found that the respondent followed its own procedures fairly, and there was ample evidence to support the denial of reaccreditation due to the appellant's non-compliance with accreditation standards.

The appeal was dismissed with costs awarded to the respondent.

The employee, a tour foreman, was fired after refusing a new, unpaid weekend on-call requirement due to child care commitments.

He sued for wrongful dismissal.

The trial judge found the on-call requirement was a material change to the employment contract, constituting constructive dismissal.

The employer appealed, arguing the trial judge exceeded the agreed statement of facts, erred in finding a material change, exhibited bias through preliminary comments, and that the employee failed to mitigate by not accepting the on-call shifts.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings and concluding the employee was not obliged to accept the on-call requirement to mitigate damages.