Daniel Asher Lublin

Following a motion concerning the enforceability of an employment agreement, the court determined the appropriate costs award.

The plaintiff succeeded on the principal issue of enforceability, while the defendant succeeded on inducement and the dismissal of punitive damages.

The court considered the divided success, the principle of indemnity, and the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

Although the plaintiff sought $16,505 in partial indemnity costs, the court found the amount somewhat high and adjusted the award to reflect the mixed success of the parties.

Costs were fixed at $10,000 inclusive of HST and disbursements.

The plaintiffs brought a motion for summary judgment seeking pay in lieu of reasonable notice following termination of a consulting relationship related to the establishment of a Schedule 1 bank.

The defendant bank argued the individual plaintiff was never its employee but rather a consultant engaged through a consulting company.

The court held that, at minimum, the consultant functioned as a dependent contractor given his exclusive work for the bank, integration into its operations, and representation to regulators as a senior officer.

Applying principles from employment law regarding reasonable notice, the court determined that eight months’ notice was appropriate.

Summary judgment was granted awarding consulting fees equivalent to eight months’ compensation plus HST and contractual interest.

In this costs endorsement arising from a wrongful dismissal proceeding, the plaintiff argued that his judgment for 27 months' notice exceeded both his own and the defendant's Offers to Settle, entitling him to substantial indemnity costs or, alternatively, partial indemnity costs forthwith.

The defendant responded that the monetary value of the judgment could not yet be fixed because mitigation income earned during the notice period remained to be deducted.

The court agreed that it was not yet possible to determine whether Rule 49 costs consequences applied.

If the parties could not later agree, costs for the motion could be addressed on a further motion or at trial together with remaining issues.

The applicant filed a human rights application alleging discrimination on the basis of disability, sexual orientation, and age, 21 months after his employment was terminated.

The respondent sought to dismiss the application for delay, as it was filed beyond the one-year time limit in s. 34(1) of the Human Rights Code.

The Tribunal found that the delay was incurred in good faith under s. 34(2), as the applicant's severe depression and anxiety, which included a suicide attempt and hospitalization, significantly impaired his ability to file the application earlier.

The Tribunal also found that the respondent failed to establish that it would suffer substantial prejudice from the delay.

The application was permitted to proceed, and the applicant was granted anonymization due to the highly sensitive medical information involved.

The applicant filed a human rights application alleging age discrimination due to the respondent's mandatory retirement policy.

The respondent requested the application be dismissed as untimely, arguing the one-year time limit began when the applicant signed the partnership agreement containing the policy.

The Tribunal denied the request, finding that the triggering incident was the actual application of the policy (the forced retirement), making the application timely.

The parties sought clarification of a previous judgment awarding the plaintiff 17 months' salary in lieu of notice, subject to a 10% contingency deduction for mitigation.

The court clarified that the 10% deduction applies only to the 7-month future loss period following the date of judgment, as the plaintiff had already suffered the damages up to the date of the hearing with 100% certainty.

The appellant was terminated without cause after 34 years of employment.

He sued for damages based on a Layoff Policy and alternatively for common law wrongful dismissal.

On a motion for summary judgment, the parties requested an endorsement that the Layoff Policy would be fully applicable, which the motion judge granted.

The appellant appealed, arguing the motion judge erred by not considering his claim for common law notice.

The Court of Appeal dismissed the appeal, finding no error in the motion judge making the order requested by both parties.

On a summary judgment motion in an employment compensation dispute, the court interpreted an unsigned compensation amendment governing commissions and bonuses for an executive recruiter.

Applying commercial contract interpretation principles and, alternatively, contra proferentem, the court held that a 5% admin fee requirement was not a precondition to bonus eligibility.

After crediting a further payment received on an outstanding client receivable, the court found the moving party’s 2013 net billings exceeded the $1 million threshold, triggering a 3% bonus.

The court also held that equitable set-off was unavailable to justify withholding commissions based on a counterclaim for damages arising from the moving party’s resignation and alleged solicitation of a client.

Summary judgment was granted on the compensation claim, subject to recalculation.

The respondent requested that the Tribunal defer consideration of an application alleging age discrimination due to a mandatory retirement policy.

The respondent argued that deferral was appropriate because the parties were involved in a parallel civil action regarding alleged post-retirement solicitation and competition, which would also require determining whether the applicant was an employee or a partner.

The Tribunal denied the deferral request, finding that the core issue in the human rights application (the nature of the employment relationship) was only a minor issue in the civil litigation, and the underlying events giving rise to the two proceedings were not the same.

The applicant, an Early Childhood Assistant, alleged discrimination in employment on the basis of age and disability after her hours were reduced and her employment was ultimately terminated.

She also alleged that the personal respondent made discriminatory age-related comments, creating a poisoned work environment.

The Tribunal found that the reduction in hours and termination were legitimately based on operational changes due to the implementation of full-day kindergarten and the applicant's failure to register as an Early Childhood Educator.

The Tribunal also rejected the applicant's evidence regarding the alleged discriminatory comments, finding her testimony lacked credibility and reliability, and preferred the evidence of the personal respondent.

The application was dismissed.

The respondent brought a Request for an Order During Proceedings seeking an order that the applicant comply with Rule 16 regarding pre-hearing disclosure, or alternatively that the application be dismissed.

The applicant consented to an order for compliance, citing miscommunication with her representative.

The Tribunal ordered the applicant to provide all arguably relevant documents within 14 days, finding that dismissal was not appropriate given the lack of prejudice to the respondent and the absence of intent to abandon the application.

The appellant appealed the dismissal of his action for common law severance damages for wrongful dismissal.

He argued that a clause in his employment contract was void because it attempted to contract out of the Employment Standards Act regarding the inclusion of bonuses in termination pay.

The Court of Appeal upheld the motion judge's finding that the clause, read in context, preserved the appellant's statutory entitlements.

The appeal and the respondent's cross-appeal on costs were both dismissed.

The respondents brought a Request for Order During Proceedings seeking to remove the personal respondents from the application and to bar the applicant from relying on documents disclosed two days late.

The Tribunal removed the members of the Board of Directors as personal respondents because the corporate respondent accepted liability and no specific allegations were made against them.

The Tribunal declined to remove the Director, as her alleged conduct was central to the discrimination claim.

The Tribunal also refused to bar the applicant's documents, finding the minor delay caused no prejudice.

The applicant, a Black man employed as an Installation Scheduler, alleged discrimination on the basis of colour and reprisal.

He claimed he was assigned menial tasks, unfairly disciplined, and ignored because of his race, and that an email about an installation team had racial undertones.

The Tribunal dismissed the discrimination claims, finding no evidence that the employer's actions were based on Code grounds.

However, the Tribunal found that the applicant's termination was a reprisal for raising human rights concerns with management.

The employer failed to investigate or address his complaints and instead terminated his employment shortly after he raised them, using pre-textual reasons.

The Tribunal awarded $55,799.70 for lost wages and $15,000 for injury to dignity, feelings, and self-respect, and ordered the corporate respondent to retain a human rights expert to review its policies and conduct training.

The respondents requested a reconsideration of a Tribunal decision made after a hearing they failed to attend.

They claimed their former legal counsel withdrew without notifying them of the rescheduled hearing date.

The Tribunal found inconsistencies between the respondents' claims and their former counsel's communications, and the respondents refused to waive solicitor-client privilege to clarify the matter.

The Tribunal concluded the respondents failed to prove they did not receive notice of the hearing through no fault of their own.

The request for reconsideration was denied.

The applicant filed a human rights application alleging discrimination and reprisal in employment, while also pursuing a civil action for wrongful dismissal.

The Tribunal reconsidered an earlier interim decision and determined that it was not plain and obvious that the application was outside its jurisdiction under s. 34(11) of the Code, as the civil claim did not explicitly seek human rights remedies.

However, the Tribunal ordered the application deferred pending the completion of the civil action to avoid concurrent proceedings and the risk of inconsistent findings of fact and law.

The applicant filed a human rights application alleging discrimination and reprisal culminating in termination.

The Tribunal issued a Notice of Intent to Dismiss because the applicant had also commenced a civil action for wrongful dismissal.

The Tribunal found that the civil action did not seek damages for an alleged breach of the Human Rights Code.

Therefore, the application was not barred by section 34(11) of the Code and was permitted to proceed.

The employee brought a motion for summary judgment seeking a declaration that a termination clause in his employment agreement was void for contracting out of minimum standards under the Employment Standards Act, 2000.

The dispute centered on a provision stating that bonuses would not be included in termination pay calculations except as otherwise agreed or required by statute.

The employee argued the clause unlawfully waived ESA rights contrary to s. 5(1).

The court held the provision, read harmoniously with the clause limiting termination entitlements to ESA minimums, did not contract out of the statute and simply confirmed bonuses would be included where required by law or later agreement.

The motion was dismissed and the action was summarily dismissed.

The defendant employer brought a motion to strike portions of an amended statement of claim in a wrongful dismissal action under Rules 21.01(1)(b) and 25.11(b) of the Rules of Civil Procedure.

The impugned pleadings related to claims for aggravated damages ("Keays damages") and punitive damages based on alleged bad faith in the manner of dismissal and alleged reprisals for whistleblowing concerning marketing practices.

The court held that it was not plain and obvious that the allegations failed to disclose a reasonable cause of action, emphasizing that damages for mental distress and punitive damages may arise from bad faith conduct in dismissal even where termination is without cause.

However, several paragraphs were struck for being unclear and unintelligible, with leave granted to replead them in plain language.

The defendants brought a motion for summary judgment seeking dismissal of an action alleging breach of an employment contract, breach of fiduciary duty, wrongful resignation, and intentional interference with economic relations after a senior employee left to join a competitor.

The court found that the record contained extensive contested evidence, numerous factual disputes, and significant credibility issues relating to the scope of contractual obligations, alleged non-solicitation duties, and the conduct of the parties after resignation.

Applying the principles governing summary judgment, the court concluded that the issues required a full trial to properly assess the evidence and competing theories of liability.

The motion was therefore dismissed.

Costs were awarded to the responding party.