Casey Michele Dockendorff

This costs endorsement addresses the allocation and scale of costs following a motion by the plaintiff, Paula Boutis, to amend her statement of claim.

The court found divided success among the parties and considered the conduct of both sides, ultimately awarding costs to the defendants on a partial indemnity basis for the motion and on a substantial indemnity basis for consequential steps.

The court also clarified the scope of further discovery and emphasized the importance of following judicial directions regarding submissions.

This decision concerns a motion by Paula Boutis to amend her statement of claim in an employment and civil liability action against The Corporation of the County of Norfolk, the Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp, and Jason Burgess.

The court reviews the proposed amendments, including new causes of action such as breaches of the Human Rights Code, intrusion upon seclusion, intentional interference with contractual relations, negligent infliction of mental suffering, and defamation.

The court applies the principles governing amendments to pleadings, limitation periods, and the rules of pleading, granting or refusing leave to amend specific paragraphs accordingly.

The defendants brought two motions: one to set aside a certificate of non-attendance for a cross-examination and another to compel the plaintiff to answer refused questions and questions taken under advisement during her cross-examination on two affidavits.

The court granted both motions in favour of the defendants.

The certificate of non-attendance was set aside, as the plaintiff's counsel acted unreasonably in obtaining it.

The plaintiff was compelled to answer most of the refused questions, as the court found them relevant to the underlying contempt motion and the dismissal motion, and in some instances, solicitor-client privilege was impliedly waived.

Costs were awarded to the defendants on a substantial indemnity basis for the certificate motion due to the plaintiff's unreasonable conduct, and on a partial indemnity basis for the refusals motion.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

The defendants brought a pre-emptive motion to strike paragraphs 5 to 20 of the plaintiff's affidavit filed in response to a motion regarding an alleged breach of the deemed undertaking rule.

The plaintiff consented to striking paragraphs 7 to 11 and part of 19.

The court declined to strike the remaining paragraphs, finding they were not scandalous, vexatious, or an abuse of process, and held that the judge hearing the substantive motion was in a better position to determine their admissibility.

The appellant employer appealed a summary judgment decision awarding the respondent 24 months' notice and bonus entitlements for wrongful dismissal.

The appellant argued the motion judge erred in interpreting the employment contract, resignation, and release in the context of a commercial share sale.

The Court of Appeal dismissed the appeal, finding no extricable errors of law in the motion judge's contractual interpretation, upholding the finding that the release of ESA rights was void, and affirming the 24-month notice period and bonus entitlement.

The appellant employer appealed a summary judgment decision awarding the respondent employee common law reasonable notice damages.

The motion judge had found that the termination clause in the employment agreement was ambiguous and did not clearly rebut the presumption of common law notice.

The Divisional Court dismissed the appeal, holding that the motion judge made no palpable and overriding error in interpreting the contract.

The court found that the termination clause, when read in the context of the entire agreement, lacked the necessary clarity to limit the employee's entitlements to the statutory minimums under the Employment Standards Act.

The respondent requested an adjournment of a preliminary hearing on the basis that its primary witness regarding the issue of delay was medically unavailable.

The applicant opposed the request, citing prejudice due to health and age.

The Tribunal refused the adjournment, noting that the witness's testimony might not be necessary to determine timeliness and that the hearing would also address whether the substance of the Application had been appropriately dealt with under s. 45.1 of the Code.

The applicant sought to amend her human rights application to add further details regarding her workplace injury, allegations of harassment, and a claim for punitive damages.

The respondents opposed the amendment, arguing that some allegations were out of time and that the Tribunal lacks jurisdiction to award punitive damages.

The Tribunal granted the request to amend, noting the early stage of proceedings and lack of prejudice, but directed the applicant to clarify the timeliness of the 2013 allegations and remove the claim for punitive damages, which falls outside the Tribunal's jurisdiction.

The respondents requested an order to remove the individual respondent, a Human Resources manager, from the human rights application.

The corporate respondent accepted vicarious liability for her actions, which were carried out in the course of her employment.

The applicant did not oppose the request.

Applying the Tribunal's established principles, the adjudicator found no compelling reason to keep the individual as a party and granted the request to remove her.

The applicant alleged discrimination in employment and services based on race, disability, age, and reprisal during a co-op placement.

The respondents requested a summary hearing to dismiss the application.

The Tribunal found no reasonable prospect of success, as the applicant provided no evidence linking the alleged adverse treatment to any prohibited grounds under the Human Rights Code beyond his own speculation.

The application was dismissed.

The defendant employer appealed a master's order requiring production of an external investigation report prepared by a lawyer following a fatal incident at a long‑term care facility.

The employer argued the report and related documents were protected by solicitor‑client privilege and that the master erred in ordering disclosure.

The court held the investigation was undertaken for the purpose of providing legal advice and was therefore privileged, rejecting the master’s finding that the lawyer had not been retained in that capacity and rejecting application of the common interest exception.

However, the court concluded that privilege had been waived through fairness considerations and public disclosure of portions of the report’s findings by the employer’s representatives.

The master’s order requiring production was upheld.

The self-represented plaintiff brought an action against his former employer, several management employees, his union, a union representative, and the lawyers who acted for the employer and the union during a grievance arbitration.

The grievance had been settled on the day of the arbitration in June 2012.

All defendants brought motions to strike the statement of claim.

The court granted the motions and dismissed the action against all defendants.

The claims against the lawyers were struck as disclosing no reasonable cause of action, as opposing counsel owes no duty of care to an opposing party, and the claims against the union lawyer fell within the exclusive jurisdiction of the Ontario Labour Relations Board.

Furthermore, the court found that all claims against all defendants were statute-barred under the Limitations Act, 2002, as the action was commenced more than two years after the claims were discovered.

In a wrongful dismissal action, the moving party sought production of all documents relating to an external investigation conducted by a lawyer after a nursing home resident's death.

The court held that the investigation materials, including the report, were not protected by solicitor-client privilege because the retainer and surrounding circumstances showed the investigator was acting primarily as an independent fact-finder rather than providing legal advice in a solicitor-client relationship.

The court further found litigation privilege did not apply because there was no evidence that litigation against the moving party was contemplated when the investigation was undertaken.

Production was ordered subject to redaction of personal and health information, and costs were awarded to the moving party.

The applicant filed an application alleging discrimination in employment against the respondent trucking company.

The respondent requested the application be dismissed on the grounds that it is a federally-regulated enterprise engaged in interprovincial transportation.

The Tribunal found it plain and obvious that the respondent's labour relations fall under federal jurisdiction pursuant to s. 92(10)(a) of the Constitution Act, 1867.

The application was dismissed for lack of jurisdiction.

The defendant employer brought a motion to strike portions of a statement of claim alleging wrongful dismissal, mental distress, defamation, and punitive damages.

The court held that the pleading failed to comply with Rules 25.06 and 25.11 of the Rules of Civil Procedure because it contained unsupported claims for damages and lacked material facts necessary to support allegations of mental distress, punitive damages, and defamation.

The court emphasized that pleadings must include concise statements of material facts rather than bare legal assertions.

Instead of striking only certain paragraphs or ordering particulars, the court struck the entire statement of claim with leave to file a fresh pleading within 14 days.

The defendants brought motions to dismiss a civil action commenced by a former teacher alleging workplace harassment, bullying, and constructive dismissal.

The plaintiff had been a member of a bargaining unit governed by a collective agreement between the school board and the teachers’ federation.

The court considered whether it had jurisdiction to hear the dispute or whether the claims fell within the exclusive jurisdiction of labour arbitration under the Labour Relations Act.

Applying the Supreme Court of Canada’s framework from Weber, the court held that the essential character of the dispute arose from the employment relationship governed by the collective agreement.

As the matters should have been addressed through the grievance and arbitration process or before the Ontario Labour Relations Board, the court lacked jurisdiction.

The plaintiff employee brought a summary judgment motion seeking a declaration that termination provisions in an employment contract were unenforceable and did not rebut the common law presumption of reasonable notice.

The employer argued the clause validly limited termination entitlements to the minimum standards under the Employment Standards Act.

The court held that a contractual reference to employment standards legislation was sufficient to incorporate statutory minimum notice requirements and could displace the common law presumption, but found the termination provision nonetheless void because it effectively excluded the continuation of benefits required during the statutory notice period.

As the clause attempted to satisfy all termination entitlements solely through notice or pay in lieu and severance pay, it violated the Employment Standards Act, 2000 and was therefore null and void.

The presumption of reasonable notice at common law was not rebutted and partial summary judgment was granted in favour of the employee.

The respondents brought a Request for Order During Proceedings to remove two individual respondents from a human rights application alleging discrimination on the basis of disability and sex.

The corporate respondent accepted vicarious liability for the actions of the personal respondents.

Applying the Persaud factors, the Tribunal found no compelling reason to keep the personal respondents as parties, as the corporate respondent was capable of remedying any potential Code infringement.

The request was granted and the personal respondents were removed.

The applicant filed a human rights application alleging discrimination on the basis of disability and sex regarding her termination from employment.

She also filed a concurrent application with the OLRB alleging her union breached its duty of fair representation by failing to grieve the termination.

The Tribunal issued a Notice of Intent to Defer the human rights application pending the OLRB proceeding.

The Tribunal concluded that deferral was not appropriate because the two proceedings involved different parties, raised different issues, and offered different potential remedies.