Chris Foulon

Following a wrongful dismissal trial where the plaintiff was awarded $682,151.18 in damages, the parties could not agree on costs.

The court awarded the plaintiff costs of $215,000 on a substantial indemnity basis.

The court found that the defendant's conduct warranted elevated costs because it maintained a legally incorrect position regarding restricted stock units contrary to binding appellate authority, only abandoning it weeks before trial, which unnecessarily increased the plaintiff's litigation costs.

The plaintiff, a 59-year-old executive with 18.5 years of service, was terminated without cause by the defendant employer.

The court awarded a 24-month reasonable notice period, finding that the plaintiff's age, tenure, and executive position warranted the maximum standard notice.

The court also awarded damages for a discretionary bonus that was unfairly denied in the year prior to termination, and damages for restricted stock units and stock options that would have vested during the notice period, calculated based on the plaintiff's historical holding patterns.

Claims for a bonus during the notice period and for aggravated and punitive damages were dismissed.

IBM Canada Inc. appealed a summary judgment in a wrongful dismissal claim, challenging the 26-month reasonable notice period and the award of damages for Restricted Stock Units (RSUs).

The Court of Appeal dismissed the appeal, affirming that non-transferrable skills and the COVID-19 pandemic constituted exceptional circumstances justifying a notice period exceeding 24 months.

The court also upheld the RSU damages, finding the termination clause ambiguous and thus ineffective in limiting common law rights.

The plaintiff, a 62-year-old managerial employee with 38 years of service, was terminated without cause shortly after the onset of the COVID-19 pandemic.

He brought a motion for summary judgment seeking damages for wrongful dismissal, including a 30-month notice period, lost Restricted Stock Units (RSUs), and bonuses.

The court granted summary judgment, awarding a 27-month notice period due to exceptional circumstances, including his age, lengthy service, specialized skills, and the economic impact of the pandemic.

The court also awarded damages for RSUs that would have vested during the notice period, finding the termination provisions did not unambiguously oust his common law entitlements, but dismissed the claim for discretionary bonuses.

The appellant, Karen Irwin, sued her former employers for constructive dismissal.

The respondents moved to stay the action, arguing an arbitration clause in the employment contract required arbitration.

The appellant challenged the arbitration clause's validity due to unconscionability and inconsistency with the Employment Standards Act and Human Rights Code.

The motion judge stayed the action, deferring the validity question to arbitration.

The appellant appealed, arguing procedural unfairness and that the motion judge erred by not determining the arbitration clause's validity.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction under s. 7(6) of the Arbitration Act, as the motion judge was permitted to leave the validity question to the arbitrator, especially since it involved mixed questions of fact and law requiring more than superficial consideration.

The moving party (appellant) sought to amend or vary a previous appeal decision to include severance pay under the Employment Standards Act, 2000, arguing that evidence of the respondent's payroll was implicitly in the trial record.

The court dismissed the motion, finding that it did not fall under Rule 59.06(1) for accidental slips or omissions, nor Rule 59.06(2) for new facts or fraud, as the moving party was attempting to re-argue an issue already considered and declined.

The court reiterated that it is not its role to scour the record for evidence not relied upon by parties.

The respondent's attempt to introduce fresh evidence without leave was also rejected.

The appellant employee appealed a judgment upholding his dismissal for cause after a workplace incident involving non-consensual touching of a co-worker.

The appeal challenged factual findings, the just cause conclusion, and sought Employment Standards Act (ESA) benefits and punitive damages for litigation misconduct.

The Court of Appeal dismissed the appeal regarding just cause and punitive damages, but allowed the appeal for ESA termination pay, finding the conduct did not meet the "wilful misconduct" standard for disentitlement.

The court also set aside the trial costs due to the respondent's egregious litigation misconduct, ordering no costs of the trial.

The applicant was terminated without cause and sought a determination of his rights under his employment contract.

The contract stipulated a fixed notice period but was silent on mitigation.

The court held that the applicant had no duty to mitigate his damages, as the fixed notice provision displaced the common law.

Applying the contra proferentem rule, the court resolved an ambiguity in the termination clause to award 11 months' severance.

The court also ordered the severance to be paid as a lump sum and awarded the applicant a project bonus of $177,500 based on the agreed internal rate of return.

The plaintiff sought to amend a prior judgment, alleging an obvious error regarding an agreement on an incentive package.

The defendant disputed the agreement and raised its own complaint about the judgment's finding on mitigation.

The court treated the letters from counsel as motions and dismissed both, finding that the alleged errors were not clerical slips or omissions under Rule 59.06(1) but rather challenges to judicial reasoning.

The court also found no agreement between counsel regarding the incentive package and that the defendant's mitigation complaint faced the same jurisdictional impediment.

The plaintiff, a 55-year-old employee with 25.5 years of service, was terminated without cause from his position as Director, Customer Development, Retail Sales.

He brought a motion for summary judgment seeking damages for wrongful dismissal.

The court found summary judgment appropriate and awarded a 22-month reasonable notice period.

The court also held the plaintiff was entitled to compensation for his lost bonus, pension, and health benefits during the notice period, and found the employer failed to prove the plaintiff did not adequately mitigate his damages.

The appellants appealed a wrongful dismissal judgment awarded by the trial judge in favour of the respondent.

The Court of Appeal upheld the trial judge's decision, finding no error in the award of damages for wrongful dismissal.

The appeal was dismissed with costs awarded to the respondent.

The appellants, an employer and a supervisor, appealed their convictions under the Occupational Health and Safety Act after a worker was seriously injured by a wood splinter ejected from an industrial saw.

The trial judge had convicted them, finding they failed to exercise due diligence because there was 'no evidence' of a system to regularly check and clean the saw's anti-kickback fingers.

The appeal court found this conclusion was unreasonable as it contradicted the uncontradicted and unrejected testimony of a worker who detailed his daily cleaning and maintenance routine.

The appeal was allowed and acquittals were entered for both appellants.

A physician licensed to practice in the United States sought to obtain full licensing in Ontario through the Pathway 4 program.

He was employed by a hospital under a one-year fixed-term contract conditional on successful completion of the program.

Following personality conflicts with members of the cardiac team and a dispute over work assignments, his supervisor withdrew, causing his conditional license to automatically expire and his employment to terminate.

The trial judge dismissed his claims for wrongful dismissal, bad faith conduct, and defamation.

The Court of Appeal allowed the appeal, finding the physician was wrongfully dismissed.

However, the court remitted issues regarding quantification of damages, bad faith conduct in the manner of dismissal, and defamation to a new trial due to inadequate reasons from the trial judge.

Dr. Amir Gholami, a pediatric cardiac anaesthesiologist, sued The Hospital for Sick Children and two individual doctors for wrongful dismissal, breach of contract, various torts, and moral/punitive damages.

Dr. Gholami was employed under a restricted license (Pathway 4) requiring supervision, which was conditional on maintaining his certificate.

Concerns arose regarding his integration into the cardiac sub-group and his attitude.

He refused an offer to shift his focus from cardiac cases, insisting on his interpretation of the contract.

His supervisor subsequently resigned, leading to the automatic expiration of his certificate and the termination of his appointment.

The court found Dr. Gholami's interpretation of his contract to be misguided and unreasonable, and that his damages were directly caused by his own actions, including his refusal of reasonable offers and confrontational communications.

The court also noted his failure to exercise statutory rights under the Public Hospitals Act.

All of Dr. Gholami's claims were dismissed.

The Crown prosecuted Alpa Lumber Mills Inc. and its supervisor Van Kham Sichantha for failing to ensure that a rip saw machine (Rip Saw #1) was properly shielded or guarded to prevent product or material being processed from endangering worker safety, contrary to sections 25(1)(c) and 27(1)(a) of the Occupational Health and Safety Act and section 26 of Ontario Regulation 851/90.

A worker was injured when a wooden stake was ejected from the machine at high velocity and pierced his arm.

The defendants argued they had taken all reasonable care by relying on the machine's built-in safety features, regular maintenance, and worker training.

The court found both defendants guilty, holding that the hazard of ejected material was reasonably foreseeable based on the manufacturer's own warnings, and that the defendants failed to take all reasonable steps including obtaining and reviewing the correct operating manual, implementing regular inspection of anti-kickback mechanisms, and ensuring workers did not stand in front of the infeed opening.

The applicant, a nurse, alleged discrimination and reprisal after her employment was terminated and the respondent reported her to the College of Nurses of Ontario.

The respondent requested the reprisal allegation be dismissed in advance of the hearing, arguing it was statutorily obligated to report the termination and protected by immunity under the Health Professions Procedural Code.

The Tribunal denied the request, finding that the statutory immunity applies only to reports made in good faith.

As the applicant alleged the report was made in bad faith, the claim could proceed to a hearing, despite the evidentiary challenges posed by the inadmissibility of the report itself.

The appellant employer appealed a summary judgment granting the respondent employee damages for wrongful dismissal.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that an alleged amending agreement lacked evidentiary support, that 18 months' notice was appropriate, and that the employee was entitled to damages for her lost bonus.

The court also upheld the motion judge's imposition of a trust regarding mitigation income.

Following reasons awarding damages for wrongful dismissal, the parties were unable to agree on the calculation of the formal judgment.

The court addressed disputes regarding whether a car allowance formed part of total compensation, whether the damages award should be discounted to reflect net present value, and the proper quantum of costs.

The court held that the car allowance was included in the plaintiff’s total compensation as previously found in the reasons.

It rejected the employer’s argument that the award should be discounted for net present value, confirming that pay in lieu of notice represents damages for breach of the employment contract payable immediately.

The court also declined to vary the previously fixed costs award.

The plaintiff, a long‑term managerial employee terminated without cause, moved for summary judgment seeking damages for wrongful dismissal beyond the statutory minimums paid under the Employment Standards Act, 2000.

The employer argued that contractual terms limited notice to statutory minimums, that bonus payments should not form part of damages, and that mitigation issues required a trial.

The court found the contractual termination clause void for violating statutory minimum standards and rejected the employer’s claim that it had been validly amended.

Applying Bardal factors, the court held that the employee was entitled to 18 months’ reasonable notice and that bonus payments formed an integral component of compensation during part of the notice period.

Summary judgment was granted with damages reflecting compensation and benefits during the notice period, subject to a trust for mitigation income.

The respondents requested a deferral of the human rights application pending the conclusion of a related civil action commenced by the applicant against other parties.

The applicant agreed to defer the hearing but argued that pre-hearing steps like mediation and disclosure should proceed.

The Tribunal found that disclosure and mediation should also be deferred, as developments in the civil action could impact disclosure obligations and mediation is voluntary.

The application was deferred in its entirety pending the conclusion of the civil action.