Daniel Asher Lublin

The plaintiff brought an action for constructive dismissal and breach of contract against his former employer.

The defendant did not attend the trial, which proceeded on an uncontested basis.

The court found the plaintiff was constructively dismissed after the employer unilaterally modified his duties to marginalize his role and hired a replacement for him to report to.

The court awarded damages for failure to deliver shares under the employment contract, damages in lieu of six months' reasonable notice, and aggravated and punitive damages for the employer's egregious conduct.

Costs were awarded on a substantial indemnity basis.

This was a certification motion in a proposed national employment class action alleging that commission-only mortgage specialists were not paid vacation and holiday pay on their full variable compensation contrary to the Canada Labour Code and related contractual and equitable duties.

The court held that the pleaded claims for breach of contract, negligence, breach of fiduciary duty, unjust enrichment, breach of trust, and breach of duty of good faith were not plainly doomed to fail, and that there was some basis in fact for common liability issues and aggregate damages.

The court also held that the common issues predominated for preferable procedure purposes despite disputes about limitation periods and varying employment documents.

Certification was granted except for punitive damages, for which the record did not provide some basis in fact.

The plaintiff in a certified class action regarding unpaid statutory vacation and holiday pay moved to settle the Notice Plan and Notice of Certification.

The parties disagreed on the opt-out deadline, the contents of the opt-out affidavit, and the text of the Notice of Certification.

The court held that the opt-out deadline should be 60 days after the last notice is published and that the opt-out affidavit must identify the individuals who opted out.

However, the court rejected the defendants' proposed revisions to the Notice of Certification, finding them to be unnecessary, unfair, and potentially intimidating to class members.

The Notice of Certification was approved substantially in the form drafted by class counsel.

The plaintiff, a long-term senior employee, brought a motion for summary judgment seeking damages for wrongful dismissal, including a 24-month notice period, bonus, benefits, and unpaid vacation pay.

The defendant employer argued for a shorter notice period and that the plaintiff failed to mitigate losses.

The court granted summary judgment, finding the plaintiff was entitled to a 24-month notice period, full bonus, benefits, and a portion of the claimed unpaid vacation pay, rejecting the employer's mitigation defence and bonus exclusion clauses.

The defendants brought a motion for leave to appeal the order of Belobaba J. dated December 29, 2022.

The Divisional Court dismissed the motion for leave to appeal.

As the responding party did not provide costs submissions, the court made no order as to costs.

Following the death of the judge who certified this national class action regarding vacation and public holiday pay, the parties could not agree on the terms of the certification order.

The plaintiff brought a motion to settle the order under rule 59.04(14).

The court settled the class definition start dates by applying the ultimate limitation periods for provinces that have them, and the basic limitation periods (adjusted for Covid-19 suspensions) for provinces that do not.

The court also compendiously restated the liability common issue to include unjust enrichment.

The plaintiff brought a motion to certify a national class action alleging that the defendant brokerage firm failed to provide vacation and public holiday pay to commissioned employees in breach of employment standards legislation.

The defendant argued that commissions continued to be paid while employees were on vacation and that the onus was on employees to prove non-payment.

The court found that the employer bears the burden of proving statutory payments were recorded and made, and that the absence of a class-wide system to record and report these obligations provided some evidence of commonality.

The court certified the class action, finding all requirements under section 5(1) of the Class Proceedings Act, 1992 were met.

The plaintiff was terminated without cause from his position as a commissioned salesperson just prior to the COVID-19 pandemic lockdowns.

He brought a motion for summary judgment seeking pay in lieu of notice, including base salary, commissions on pending deals, and bonus pool payments.

The court awarded a 10-month notice period, explicitly accounting for the pandemic's negative impact on his job search.

The court also awarded the plaintiff his commission on a major transaction that closed during the notice period, but declined to award commission on a transaction that remained pending after the notice period expired.

This endorsement addresses costs following a wrongful dismissal trial where the plaintiff, Melvin Yee, was largely successful in his claim for damages but unsuccessful in his claim for bad faith damages.

The defendant, Hudson’s Bay Company (HBC), failed to disclose a critical employment contract until late in the proceedings, causing unnecessary litigation.

The court found HBC's conduct "worthy of sanction" under Rule 57.01 of the Rules of Civil Procedure.

Despite the plaintiff's divided success and the defendant's offers to settle, the court awarded the plaintiff reduced substantial indemnity costs, emphasizing that the defendant's conduct unnecessarily lengthened the proceeding.

The plaintiff, a 62-year-old former Director of Product Design and Development with 11.65 years of service, sued for wrongful dismissal after his employment was terminated.

The court applied the Bardal factors and awarded a 16-month reasonable notice period, including base salary, unpaid bonus, benefits, and pension contributions.

The plaintiff's claim for bad faith damages, based on the employer's late disclosure of a superseding employment contract, was dismissed as the conduct did not meet the required threshold.

The appellant, a 69-year-old legal assistant, was terminated without cause after 15 years of service.

A motions judge awarded her a 12-month notice period, subject to a 10% contingency reduction for the final two months.

The appellant appealed to the Divisional Court, seeking a 24-month notice period and arguing the motions judge erred in applying the Bardal factors and the contingency reduction.

The Divisional Court dismissed the appeal, finding no errors in principle, no unreasonable findings of fact, and that the notice period fell within an acceptable range.

This supplementary endorsement addresses the costs of a failed mediation and an urgent motion brought by the plaintiff to compel a representative's attendance at discovery.

The court declined to award costs for the mediation, finding no evidence of bad faith despite the defendant's alleged reluctance to engage in settlement discussions.

For the motion, where the plaintiff was largely successful in securing the discovery order, the court awarded partial indemnity costs to the plaintiff, fixed at $6,300.00, after a one-third reduction for lack of complete success (specifically, the failed mediation costs).

The decision reiterates that elevated costs require a clear finding of reprehensible conduct, which was not present.

The plaintiff brought an urgent motion seeking an order to compel Aziz Pirani, a current employee of the defendant corporation, to attend an examination for discovery as the defendant's representative.

The urgency arose from Mr. Pirani's unclear impending departure from the defendant's employment, which would alter the plaintiff's prima facie right to choose the witness.

The defendant opposed the motion, arguing lack of urgency and the inappropriateness of examining a departing employee.

The court found the matter urgent and granted the plaintiff's motion, affirming the plaintiff's right to select the corporate representative for discovery when the individual remains an employee and their departure date is uncertain.

The plaintiff, Hugo Raposo, brought a motion for summary judgment in his wrongful dismissal action against the defendant, CA Canada Company.

The central issue was the enforceability of the termination provisions in the employment agreement and whether they displaced the common law presumption of reasonable notice.

The court found that the termination provisions in the offer letter and employment agreement were neither contradictory nor ambiguous, and effectively rebutted the presumption of common law reasonable notice.

Consequently, the plaintiff's motion for summary judgment was dismissed, though the plaintiff was awarded outstanding vacation pay.

Following the dismissal of the applicant's motion for an interim injunction against a former employee, the parties made written submissions on costs.

The respondent sought elevated costs on a substantial or full indemnity basis, arguing the application was meritless and intended to intimidate.

The court found the application was not frivolous and counsel conduct was not inappropriate.

Costs were awarded to the respondent on a partial indemnity basis fixed at $12,500 all inclusive.

The applicant daycare facility sought an interim injunction to restrain a former employee from soliciting its clients and employees, alleging breach of a non-solicitation clause.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the applicant failed to establish irreparable harm.

The loss of one employee and two clients was either compensable in damages or not clearly linked to solicitation, and there was no evidence of ongoing solicitation.

The application for an interim injunction was dismissed.

An employee was terminated after eight years and four months of employment when her employer sold its assets.

The employment agreement contained a termination clause providing two weeks' notice per year of employment or pay in lieu thereof, stated to be inclusive of all statutory entitlements under the Employment Standards Act, 2000.

The employer paid the employee thirteen weeks' working notice plus a lump sum equivalent to eight weeks' pay, and made benefit contributions during the notice period.

The employee sought damages equivalent to twelve months' notice, arguing the termination clause was unenforceable.

The motion judge dismissed the motion, finding the clause enforceable but determining that if wrong, reasonable notice would be nine months.

The Court of Appeal allowed the appeal, finding the termination clause unenforceable because it excluded the employer's statutory obligation to contribute to the employee's benefit plans during the notice period and did not clearly satisfy the employer's statutory obligation to pay severance pay.

Following a successful summary judgment motion for wrongful dismissal, the plaintiff sought full or substantial indemnity costs, alleging the defendant engaged in improper conduct by initially offering insufficient severance.

The court found no improper, vexatious, or unnecessary conduct by the defendant that would warrant elevated costs.

The court awarded the plaintiff costs on a partial indemnity basis, fixed at $14,000 inclusive of disbursements and HST, noting the straightforward nature of the proceeding.

The plaintiff, a 60-year-old senior manager with 30 years of service, was dismissed without cause due to restructuring.

She brought a motion for summary judgment for wrongful dismissal.

The court applied the Bardal factors and awarded a 24-month reasonable notice period, noting her age, long tenure, and the competitive disadvantage she faced in the job market.

The court also applied the trust and accounting approach rather than a contingency discount for mitigation, impressing the award with a trust in favour of the employer for any earnings obtained during the balance of the notice period.

Following a successful summary judgment motion by the plaintiffs in a wrongful dismissal action, the court addressed costs.

One defendant sought costs against the other defendant rather than the plaintiffs, arguing that the other party’s litigation position caused its involvement in the action.

The court rejected that position and held that no costs would be awarded for or against that defendant.

The court found the remaining defendant liable for the plaintiffs’ costs and determined that substantial indemnity costs were appropriate due to the defendant’s unfounded and strategic allegation of termination for cause, which unnecessarily complicated and lengthened the proceedings.