Edward J. O’Dwyer

The Court of Appeal heard two appeals concerning the enforceability of termination clauses in employment contracts.

In both cases, the employees argued that provisions allowing termination without cause 'at any time' or 'for any reason' violated the Employment Standards Act (ESA) by theoretically permitting termination in circumstances prohibited by statute, such as after a leave or as a reprisal.

The Court rejected this literal interpretation, holding that employment contracts must be read in context to determine the parties' objective intentions.

Given the contracts' express commitments to comply with ESA minimums, the 'at any time' language simply meant the termination would be legally effective regardless of when it occurred, not that the employer could violate statutory prohibitions.

The Court also upheld a 'with cause' provision that defined cause more broadly than the ESA's 'wilful misconduct' standard, because it expressly preserved the employee's right to ESA minimums if terminated for cause.

The appeal in Baker was allowed, and the appeal in Li was dismissed.

Two employees of Canadian Imperial Bank of Commerce (CIBC) employed as Mobile Investment Consultants were terminated without cause due to a restructuring.

They sued for wrongful dismissal, claiming entitlement to damages in lieu of reasonable notice under common law.

The central issue was whether the termination provision in their employment contracts was enforceable or violated the Canada Labour Code.

The court found the termination provision unenforceable because the "For Cause" provision defined cause more broadly than the statutory definition of "just cause" under the Canada Labour Code, and the "Without Cause" provision's language permitting termination "at any time" was contrary to the statutory framework.

The court determined reasonable notice periods of seven months for one plaintiff and twelve months for the other, and awarded damages for salary, commissions, bonuses, and benefits during those periods.

The plaintiff brought a motion for summary judgment for wrongful dismissal after being terminated without cause after nine months of employment.

The plaintiff argued the termination clause in his employment agreement was unenforceable because it violated the Employment Standards Act.

The court found the termination clause enforceable, as it clearly limited the employer's obligations to the minimum statutory entitlements under the ESA.

The plaintiff's claim for common law damages was dismissed.

The court also assessed the hypothetical common law notice period at four months and determined the plaintiff would have been entitled to unvested Restricted Stock Units had the termination clause been unenforceable.

The applicant sought judicial review of decisions by the Ontario Labour Relations Board dismissing his appeal of a Ministry of Labour Field Visit Report for delay and denying reconsideration.

The applicant had filed his appeal approximately 17 months after the 30-day statutory deadline.

The Divisional Court dismissed the application, finding that the Board provided procedural fairness and reasonably concluded that the applicant failed to provide a cogent explanation for the delay.

The court also denied the applicant's request to introduce fresh evidence.

The self-represented applicant sought judicial review of the OLRB's refusal to extend the time to appeal an inspector's order under the Occupational Health and Safety Act.

Pending the hearing, the applicant brought a motion for a stay of the OLRB's orders, to admit fresh evidence, and to deliver a Notice of Constitutional Question.

The court dismissed the request for a stay, noting that staying a refusal to extend time has no practical effect.

The court deferred the issue of fresh evidence to the panel hearing the application.

The request to deliver a Notice of Constitutional Question was dismissed because the Divisional Court lacks jurisdiction to hear general Charter and human rights complaints in this judicial review proceeding.

The plaintiff, a former Senior Financial Services Representative at CIBC, brought an action for wrongful dismissal after being terminated for cause.

The employer alleged that the plaintiff repeatedly breached its Code of Conduct and policies, including failing to review overdraft reports, pulling credit bureau records without signed consent, and altering signed mortgage payout statements.

The court applied the contextual approach to just cause and found that the plaintiff's cumulative and persistent breaches of the employer's policies, despite previous warnings, struck at the heart of the employment relationship.

The action was dismissed.

The defendants moved to dismiss the plaintiff's action under rules 57.03(2) and 60.12 of the Rules of Civil Procedure due to her failure to pay costs awarded against her in two separate court Orders totaling $12,500.

The plaintiff argued impecuniosity.

The court, while acknowledging the plaintiff's impecuniosity, found that her ongoing litigation was vexatious and that impecuniosity was not a shield for unreasonable conduct or a failure to abide by court orders.

The court conditionally dismissed the plaintiff's action, ordering her to pay the outstanding costs by a specific deadline, and fixed additional costs for the current motion.

Following a successful summary judgment motion for wrongful dismissal where the plaintiff was awarded $149,662.50 in damages, the court determined the appropriate costs award.

The plaintiff sought full indemnity costs or, alternatively, partial indemnity to the date of a Rule 49 offer and substantial indemnity thereafter.

The court rejected full indemnity costs as the defendant's conduct in the litigation was not reprehensible.

Applying the principles of reasonableness and proportionality, the court awarded the plaintiff costs on a blended scale totalling $38,156.25 inclusive of disbursements and HST, noting the plaintiff's efficient use of a single senior lawyer compared to the defendant's heavily staffed file.

The defendant employer moved for summary judgment in a wrongful dismissal action and the plaintiff employee brought a cross-motion for summary judgment.

The court held there was no genuine issue requiring a trial, fixed reasonable notice at 24 months for a 28-year retail management employee, and rejected the employer’s mitigation defence despite a delayed job search, given the pandemic, the employee’s depression, and extensive later applications.

The court further held that the employer breached the duty of good faith and fair dealing in the manner of dismissal by escorting the employee out, presenting a misleading post-termination offer, failing to comply with statutory lump-sum payment obligations, and issuing an untimely and inaccurate record of employment.

Damages were awarded for notice, replacement benefits, pension contributions, moral damages, and punitive damages.

The defendants brought motions to strike the plaintiff's Fresh As Amended Statement of Claim and dismiss the action.

The plaintiff, a therapeutic counsellor, had previously sued the defendants in Small Claims Court and initiated various complaints regarding a fee-splitting and supervision arrangement.

The court found that the current action was an attempt to relitigate claims that had already been dismissed or settled, constituting an abuse of process.

Furthermore, the claims were statute-barred as they were discovered more than two years before the action was commenced.

The court dismissed all claims except for a defamation claim against one defendant, which was struck for lack of particularity but with leave to amend.

The appellant appealed a summary judgment dismissing his action against the Ontario Ombudsman.

The motion judge proceeded in the appellant's absence after finding he knew of the motion and chose not to participate.

The motion judge dismissed the action because the respondent was immune from proceedings absent bad faith, and the appellant provided no evidence of bad faith.

The Court of Appeal found no error in the motion judge's discretionary decision to proceed or in granting summary judgment, and dismissed the appeal.

Following the successful dismissal of the plaintiff's action for want of jurisdiction, the defendants sought their costs.

The plaintiff argued she should not pay costs because she had offered to discontinue the action and the defendants demanded an overly broad release.

The court awarded the Toronto Parking Authority $20,000 in partial indemnity costs.

However, the court declined to award costs to the individual defendant, finding that doing so would bring the administration of justice into disrepute given his reprehensible conduct that gave rise to the action.

The plaintiff, a unionized employee, brought a tort action against her employer (Toronto Parking Authority) and a co-worker (Vito Ditta) for damages arising from alleged workplace sexual assault and harassment.

The defendants moved to dismiss the action, arguing that the Superior Court of Justice lacked jurisdiction as the dispute fell within the exclusive jurisdiction of a labour arbitrator under section 48 of the Labour Relations Act.

The court found that the essential character of the dispute concerned workplace violence and harassment, which was covered by the collective agreement and the employer's workplace policies.

The court dismissed the plaintiff's arguments regarding a Charter section 15 violation and a remedial gap, concluding that the dispute was exclusively arbitrable.

The plaintiff brought a motion under Rule 21.01(1)(a) seeking an order for the payment of a volume bonus commission prior to trial in a wrongful dismissal action.

The plaintiff sought leave to introduce extensive affidavit evidence.

The court dismissed the motion, finding that the interpretation of the employment agreement in light of alleged code of conduct breaches raised a question of mixed fact and law, not a pure question of law.

The court noted the motion was effectively an improper attempt to bypass the procedural requirements of a Rule 20 summary judgment motion, including mandatory attendance at Civil Practice Court, and warned against the risks of partial summary judgment.

The plaintiff appealed a Master's decision refusing her motion to amend her Statement of Claim to add a $100,000 claim for defamation against her former employer.

The proposed amendment alleged that the employer's report to the Ontario Securities Commission was defamatory, but failed to specify the defamatory words.

The Divisional Court dismissed the appeal, finding no error of law in the Master's conclusion that the pleading did not disclose a tenable cause of action because the specific defamatory words were not identified.

The appellant appealed a decision interpreting the termination clause of an employment agreement.

The motion judge found the agreement unambiguous, holding that a three-week minimum notice period only applied when a release was provided, and otherwise, employment standards legislation applied.

The Divisional Court dismissed the appeal, deferring to the motion judge's interpretation as there was no palpable and overriding error or extricable error of law.

The appellant appealed a summary judgment award requiring it to pay outstanding invoices for temporary staffing services.

The appellant sought to rely on a set-off defence based on fraudulent invoices submitted by the respondent's employees for workers who did not actually work at the appellant's plant.

The Court of Appeal upheld the summary judgment, finding that legal set-off was unavailable because the claim was for unliquidated damages, and equitable set-off was unavailable because the appellant bore responsibility for the fraud through its own representative's actions and was in the best position to prevent it.

The appellant appealed a summary judgment dismissing his claims for wrongful dismissal against affiliated companies of his bankrupt former employer.

He argued they were liable as common employers and conspired to use the bankruptcy process to defeat his claims.

The Court of Appeal upheld the motion judge's finding that there was no evidentiary basis for the common employer claim and that the employment agreements precluded joint liability.

The court also found no unfairness in the motion judge requesting additional submissions on the common employer issue.

The appeal was dismissed.