David E. Greenwood

The plaintiff, a Vice President of Acquisitions and Asset Management and Chief Compliance Officer, was terminated by the defendant after three months less one day of employment.

The plaintiff claimed wrongful dismissal, arguing that the termination clause in the employment agreement was void and unenforceable as it violated the Employment Standards Act, 2000.

The court found that the termination clause, including the probationary employment provision, was void and unenforceable because it purported to give the employer more expansive termination rights than those established in the ESA.

The court held that the plaintiff was entitled to reasonable notice upon termination and awarded three months' notice, resulting in damages of $44,644.46 for base salary, benefits, and reimbursement of professional examination fees.

The court rejected claims for bonus compensation, aggravated damages, and punitive damages.

The appellant, Toronto Wholesale Produce Association (TWPA), appealed a trial judgment finding it breached a Sale and Maintenance Agreement (SMA) with the respondent, ID Inc., regarding the conversion of a billboard to a digital sign.

The trial judge had awarded ID Inc. damages for lost profits, finding the SMA had not expired and that TWPA had waived or was estopped from relying on the expiry provision.

The Court of Appeal allowed the appeal, holding that the trial judge erred in her contractual interpretation by injecting a fault concept into the plain language of the SMA, which clearly stated the agreement would terminate if a permit was not obtained within 360 days.

The Court also found no evidence to support waiver or estoppel.

ID Inc.'s cross-appeal regarding an alleged separate oral agreement was dismissed, as the trial judge correctly applied the objective test for contract formation.

The action against TWPA was dismissed.

ID Inc. brought a motion to quash part of an appeal by the Toronto Wholesale Produce Association (TWPA), arguing the appeal was out of time because the judgment for damages was "pronounced" earlier than the final judgment date.

The TWPA opposed and brought a cross-motion for an extension of time if necessary.

The Court of Appeal dismissed ID Inc.'s motion, finding that there was only a single judgment, not two, and therefore the appeal was not out of time.

The TWPA's cross-motion was dismissed as moot.

Following the dismissal of the defendant's motion for partial summary judgment, the successful plaintiff sought costs on a substantial indemnity basis.

The court declined to award elevated costs, noting the plaintiff's conduct contributed to the motion's circumstances, including an unsuccessful adjournment request.

Costs were fixed at $10,000 on a partial indemnity basis, payable within 30 days.

The plaintiff brought an action for wrongful dismissal, human rights damages, and intentional infliction of mental suffering against his employer and its principal, as well as against a related corporation, claiming they were common employers.

The related corporation brought a motion for partial summary judgment to dismiss the action against it.

The court dismissed the motion, finding that this was not one of the rare cases where partial summary judgment is appropriate, as the claims against the moving party were factually intertwined with the claims against the other defendants, creating a material risk of inconsistent findings.

The Court of Appeal for Ontario reconsidered its prior decision in light of a Supreme Court of Canada remand order, which directed disposition in accordance with *Matthews v. Ocean Nutrition Canada Ltd.* The original appeal concerned whether a wrongfully dismissed employee was entitled to hold shares and receive share bonuses during the reasonable notice period, as determined by a motion judge.

The Court of Appeal had previously found against the employee.

Upon reconsideration, the court affirmed its earlier decision, holding that *Ocean Nutrition* applies to damages arising from a breach of an employment contract, whereas the employee's claim to shares and share bonuses arose from his rights as a shareholder under a Shareholders' Agreement, not as an employee.

The appellant, CIBC World Markets Inc., appealed a trial judgment that found it liable for trading losses incurred by the respondents, Montrose Hammond & Co. and The Raillery Fund LP, due to the negligence of Belzberg Technologies Inc.'s employees.

CIBC argued the trial judge erred in interpreting exclusion clauses in their contract and in finding Belzberg to be CIBC's apparent agent.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation that the exclusion clauses did not apply to the circumstances and that Belzberg acted as CIBC's apparent agent, leading to the respondents' detriment.

An employee-owned engineering firm terminated a 31-year employee without cause and paid him for his shares based on the fair value 30 days after termination, as specified in the shareholders' agreement.

The employee sought damages for wrongful dismissal and claimed he was entitled to share value calculated at the end of the reasonable notice period (26 months) plus share bonuses accrued during that period.

The motion judge granted partial summary judgment in the employee's favour, relying on the principle that a wrongfully dismissed employee should be placed in the position they would have been in if lawfully terminated.

The appellate court reversed, holding that the employee's contractual rights under the shareholders' agreement are separate and distinct from his common law employment rights, and that the shareholders' agreement clearly triggered the share repurchase process upon termination of employment, not at the end of the notice period.

The appellant employer appealed and the respondent employees cross-appealed from a motion judge's orders awarding wrongful dismissal damages following the dismissal of the respondents without cause after the sale of part of the employer's retail business.

The appeal addressed whether the respondents failed to mitigate damages by refusing comparable employment with the purchaser, and whether damages for employment benefits should be reduced by pension benefits received.

The cross-appeal concerned the calculation of damages for lost Savings Plan contributions.

The court dismissed the appeal, finding the motion judge did not err in determining the offered employment was not comparable and that pension benefits should not be deducted.

The court allowed the cross-appeal, finding the motion judge erred in calculating Savings Plan contributions at 3% rather than 6%.

The plaintiffs sued CIBC and Belzberg for breach of contract or negligence after a direct market access (DMA) system malfunctioned, causing significant error trades and the eventual shutdown of their hedge fund.

The court found CIBC prima facie liable, determining that Belzberg employees acted as CIBC's apparent agents when they negligently caused the malfunction.

The court rejected CIBC's broad contractual exclusion of liability for direct damages but upheld the exclusion for lost profits.

The plaintiffs were awarded direct trading losses, with no reduction for mitigation or contributory negligence, and punitive damages were denied.

Mr. Ivars Mikelsteins, a 57-year-old employee with 31 years of service, was terminated without cause from Morrison Hershfield Ltd. He brought a summary judgment motion for wrongful dismissal damages, including reasonable notice, benefits, share valuation increases, share bonuses, and a gross-up on share value.

The court determined a reasonable notice period of 26 months, awarded damages for base salary, bonus, and RRSP contributions, and 10% of base salary for lost benefits for the remaining notice period.

The court also found Mikelsteins entitled to damages for the increase in share value, share bonuses, and a gross-up, rejecting the employer's argument that the Shareholders' Agreement ousted common law entitlements.

The court adopted a partial summary judgment approach for mitigation, requiring monthly payments and allowing the employer to challenge mitigation efforts later.

In a wrongful dismissal action, the court determined damages and costs following a summary judgment on liability.

The plaintiffs sought compensation for 26 months' notice, including pension contributions, Savings Plan contributions, and loss of benefits.

The defendant argued for deductions based on an expert report indicating an increase in the commuted value of the plaintiffs' pensions due to early termination, and disputed benefit calculations.

The court rejected the defendant's argument for pension value deductions, applying the principles from *IBM Canada Limited v. Waterman* that pension benefits are a form of retirement savings, not an indemnity for wage loss, and should not be deducted.

It also rejected the plaintiffs' claim for notional pension contributions, as no actual pension loss was proven.

For the Savings Plan, the court awarded 3% contributions throughout the notice period, finding that the plaintiffs should not be penalized for a plan change they could not elect to avoid due to termination.

For lost benefits, the court awarded 8% of base salary, based on the defendant's own evidence and the principle that retirement benefits do not offset lost employment benefits.

The plaintiffs were awarded damages of $328,505.00 and $260,640.60 respectively, plus pre-judgment interest, and costs of $75,000.

The plaintiff, a senior executive employed for approximately 14 months, sought damages for unpaid compensation allegedly owed under an employment agreement, including a relocation payment, termination pay, a retention bonus, and an annual incentive program payment.

The court interpreted the relocation clause using the contractual interpretation principles articulated in Sattva and held the plaintiff had not moved his primary residence to Toronto, as he maintained his family home and tax residency in the United States while commuting.

The court also rejected arguments that termination and bonus provisions were void for potential violations of the Employment Standards Act, finding no actual or possible statutory breach in the circumstances.

Because the plaintiff had mitigated his losses and was not actively employed on the relevant payout dates, he was not entitled to the claimed payments.

All claims were dismissed.

The plaintiff brought a motion for summary judgment seeking repayment of transition loans totaling over $1.8 million made to the defendant financial advisor.

The defendant argued the repayment terms were unenforceable because they were provided after the business relationship commenced and lacked consideration, and that the relationship was actually employer-employee.

The court dismissed the motion, finding a genuine issue for trial given the late delivery of the repayment schedule and the potential inconsistency with the defendant's pending counterclaim.

The plaintiff, a 56-year-old Director of Business Development with 22.5 years of service, was terminated without cause by the defendant pharmaceutical company.

On a motion for summary judgment, the court determined the reasonable notice period to be 24 months, considering the plaintiff's senior role and the specialized nature of his employment.

The court also awarded damages including a 2% salary increase and a bonus based on the average of the two years prior to termination.

The court ordered that any income earned by the plaintiff during the post-judgment notice period be held in trust and paid to the defendant upon the expiry of the notice period.

The applicants sought an order appointing an arbitrator under a Shareholder Purchase Agreement containing a mandatory arbitration clause following the purchase of a real estate brokerage.

The dispute concerned alleged improper bookkeeping and tax liabilities discovered after the closing of the transaction, which the applicants alleged breached the respondent’s representations, warranties, and indemnities.

The respondent argued that a prior mutual release resolving earlier litigation extinguished the agreement and barred the claims.

The court held that the claims were discovered after the release and were not covered by it, and that the dispute was at least arguable within the scope of the arbitration clause.

The court appointed an arbitrator and directed the dispute to arbitration.

The appellant employer appealed a trial judge's decision awarding the respondent employee $10,108.55 in unpaid short-term disability benefits.

The trial judge calculated the benefits based on the written policy in the employee handbook, rejecting the employer's evidence of an unwritten policy that applied a different calculation method.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's findings of fact and mixed fact and law.

The appellant challenged an order striking pleaded claims against an individual corporate principal and dismissing an unjust enrichment claim on a pleadings motion.

The Court of Appeal held that it was not plain and obvious that the statutory claims under s. 131 of the Ontario Business Corporations Act, the claim under s. 10 of the Partnerships Act, and the pleaded breach of contract and misrepresentation claims against the individual respondent could not succeed.

Applying the unjust enrichment benefit analysis from Peel, the court held the claim was properly struck against the individual respondent personally for lack of material facts showing a tangible benefit, but could proceed against the remaining respondents based on unpaid services and business expenses.

The appeal was allowed in part and costs were awarded to the appellant.

The defendants brought a motion to strike portions of a fresh as amended statement of claim in an employment-related action seeking damages for breach of contract, wrongful dismissal, misrepresentation, quantum meruit, and unjust enrichment.

The court held that the pleading failed to disclose a reasonable cause of action against an individual corporate officer because it did not plead material facts showing independent misconduct separate from the corporation.

The court struck the claims against the individual defendant and dismissed the action as against him.

However, the court found sufficient pleaded facts to support the allegation that two corporate defendants could be treated as common employers.

The claim for unjust enrichment was also struck for failure to plead a tangible benefit retained by the defendants.

The defendants appealed a master's order dismissing their motions for security for costs against corporate plaintiffs who had ceased operations and lacked assets in Ontario.

The defendants argued that the plaintiffs were not impecunious because the principals had personal assets, including an unencumbered home and retirement savings.

The court held that the master did not err in concluding the plaintiffs were genuinely impecunious and that requiring security would force abandonment of the claim.

The court accepted that the principals' assets were effectively constrained by debts, potential tax liabilities, and the need to fund the litigation.

Because the claim was not plainly devoid of merit, the master properly exercised discretion to refuse security for costs.