Dave J.G. McKechnie

Following the dismissal of the plaintiffs' constructive dismissal action, the defendant sought costs, arguing for substantial indemnity from the date of its Rule 49 offer.

The court held that Rule 49 does not apply when a plaintiff's claim fails entirely.

The court rejected the plaintiffs' argument that they were forced to proceed to trial because the defendant's offers were nominal.

The court awarded the successful defendant partial indemnity costs fixed at $50,000 plus HST.

The plaintiffs, a married couple who were long-term employees of the defendant, resigned and claimed constructive dismissal.

The wife had received a letter of reprimand for insubordination after refusing to start work earlier and being rude to a new manager.

The plaintiffs alleged the workplace was unsafe and unsanitary due to clutter, mice, and bats.

The court dismissed the action, finding the letter of reprimand was a moderate response to insubordination and the workplace conditions, while not ideal, did not amount to an unsafe environment or a fundamental change to the employment contract.

The plaintiffs' resignations were not justified on an objective standard.

The plaintiffs, long-time kitchen cabinet delivery and installation workers who had been reclassified from employees to purported independent contractors in 1987, sought damages after termination without notice.

The court held that the relationship fell within the intermediate category of dependant contractors, emphasizing the plaintiffs’ near exclusivity, the defendant’s effective control, the integration of their work into the defendant’s business, and the absence of any real entrepreneurial opportunity.

Having regard to their long prior service and the overall relationship, the court awarded 26 months’ reasonable notice damages.

The action against one incorrectly named corporate defendant was dismissed without costs.

Employee wrongful dismissal action arising from post-disability return-to-work restructuring, disciplinary measures, and subsequent long-term disability leave.

The court found the employee was constructively dismissed when the employer unilaterally demoted him, altered his reporting structure, removed supervisory and budgetary responsibilities, and reduced his role to a more clerical function.

Applying the Bardal factors, the court awarded 18 months' notice, less ESA minimums already paid, and rejected claims for moral damages, intentional infliction of mental suffering, and punitive damages.

The court also rejected the employer's frustration and proportional reduction defences, and held the constructive dismissal claim was not statute-barred.

The appellant employer appealed a trial judgment awarding the respondent former employee damages for lost long-term disability (LTD) benefits and punitive damages following a wrongful dismissal.

The respondent had been diagnosed with cancer after finding alternate employment and claimed he would have been entitled to LTD benefits under the appellant's plan.

The Court of Appeal upheld the LTD benefits award, finding sufficient medical and vocational evidence that the respondent was totally disabled and incapable of working, thus negating any failure to mitigate.

However, the Court set aside the $15,000 punitive damages award because it had not been pleaded or sought at trial.

The appellant employer appealed a trial judgment awarding the respondent employee 14 months' pay in lieu of notice for wrongful dismissal.

The respondent was a younger employee with 2.5 years of service in a middle management position.

The trial judge had enhanced the notice period due to the employer's failure to provide a promised reference letter.

The Court of Appeal upheld the finding of a valid employment agreement but found the 14-month notice period manifestly excessive.

The Court reduced the notice period to 7 months, finding it to be a reasonable, albeit generous, period that included a modest enhancement under Wallace principles.