Caroline Richard

Nylene Canada Inc. appealed a wrongful dismissal damage award, arguing the trial judge erred in calculating the reasonable notice period by including pre-retirement service and by exceeding a 24-month maximum.

The Court of Appeal affirmed the trial judge's findings that the "retirement/re-hiring" was solely for pension access and did not constitute a break in service.

The court also upheld the 26-month notice period, finding it justified by the employee's unique circumstances, including long tenure, specialized skills, age, and difficulty finding new employment.

The appeal was dismissed.

Following a two-day trial where the plaintiff obtained a judgment of $138,962.22, the plaintiff sought substantial indemnity costs of $67,710.50 on the basis that the judgment exceeded her offers to settle.

The defendant argued for no costs due to divided success and unreasonable claims.

The court found that while the plaintiff beat her offer to settle, substantial indemnity costs were not appropriate given the defendant's partial success on some claims and some unreasonable billing entries.

The court awarded partial indemnity costs fixed at $42,000 in fees and $2,114 in disbursements.

The plaintiff, a long-term employee of 39 years, brought an action for wrongful dismissal, aggravated/moral damages, and discrimination based on sex, age, and disability following her termination without cause.

The court found no break in service despite a new employment agreement signed to access a pension, entitling her to 26 months' notice.

Claims for aggravated/moral damages and additional discrimination grounds (age and disability) were dismissed due to insufficient pleading.

The claim for discrimination based on sex was also dismissed due to a lack of prima facie evidence.

The plaintiff's mitigation efforts were deemed reasonable.

Joshua West, a plaintiff in a motor vehicle accident case, sought substantial indemnity costs following a jury verdict awarding him $710,000 in damages.

The defendant, Robin West, opposed the amount and sought costs against the co-plaintiff, Robert West, whose claim was dismissed at trial.

The court, applying factors under Section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, reduced Joshua West's requested fees, finding that two senior counsel were not required and substantial indemnity applied only from the date of his Rule 49 offer.

The court also allocated a portion of preparation time to Robert West's dismissed claim.

Ultimately, Joshua West was awarded $225,000 in fees plus $67,554.49 in net disbursements, while Robert West was ordered to pay the defendant $10,000 in costs.

No costs were awarded for a mixed-result motion regarding calling Robin West as a witness.