Ellen V. Swan

The appellant employee commenced a Small Claims Court action for wrongful dismissal against the individual owners of his former employer.

After the two-year limitation period expired, he amended his claim to add the corporate employer as a defendant.

The Deputy Judge dismissed the claim against the corporate employer as statute-barred.

On appeal, the Divisional Court upheld the dismissal, finding that the appellant knew or ought to have known of his claim against the corporate entity on the date of his termination.

The court also rejected the argument that adding the corporate defendant was merely correcting a misnomer.

The individual defendant, who is one of two shareholders and directors of the corporate defendant, brought a motion for leave to represent the corporation under Rule 15.01(2) of the Rules of Civil Procedure.

The plaintiff, who is the other shareholder and director, opposed the motion.

The court applied the Extend-A-Call factors and found that the corporation lacked the financial resources to retain counsel, and that the individual defendant was capable of comprehending the issues and advocating for the corporation.

The court granted the motion, subject to the condition that the individual defendant obtain authorization from the corporation to represent it.

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 appellants appealed a finding of professional misconduct by the Discipline Committee of the Ontario Association of Architects.

They argued they were denied a fair hearing because the independent legal counsel retained to advise the Committee effectively took over the conduct of the hearing.

The Divisional Court agreed, noting numerous instances where the Committee's counsel interrupted the appellants' counsel, purported to speak for the Committee, and engaged in heated arguments.

The findings of guilt were set aside and the matter was remitted for a new hearing before a differently constituted panel.

The plaintiff was successful on an appeal regarding the enforcement of an employment agreement containing a non-exclusive attornment clause.

The plaintiff sought partial indemnity costs for both the appeal and the underlying motion.

The defendant argued that costs should be reserved to the trial judge due to the inter-relationship of the issues.

The court rejected the defendant's argument, holding that costs should follow the event, and awarded the plaintiff costs fixed at $13,500 inclusive of disbursements and GST.

The plaintiff, an Ontario resident, sued his former employer for wrongful dismissal.

The employment contract contained a non-exclusive attornment clause to the State of Washington.

The Master stayed the action on the basis of forum non conveniens, finding the clause shifted the onus to the plaintiff to prove Ontario was the more appropriate forum.

On appeal, the Divisional Court held the Master erred in law; the onus does not shift when the validity of the clause is challenged based on public policy and unequal bargaining power.

The appeal was allowed and the stay dismissed.

The appellants appealed the judgment of the Superior Court of Justice, arguing the trial judge erred in refusing to re-open the trial and in interpreting the contract.

The Court of Appeal found no error in the trial judge's exercise of discretion or interpretation of the contract.

The appeal was dismissed with costs fixed at $3,500.

The plaintiffs engaged the defendant as an independent contractor to provide systems engineering services to their clients.

The defendant subsequently went to work directly for one of the clients.

The plaintiffs sued for breach of fiduciary duty and breach of confidence.

After the trial, the trial judge raised new theories of liability on her own motion—duty of good faith, unconscionability, and implied contractual terms—and found the defendant liable on those unpleaded bases while dismissing the pleaded claims.

The Court of Appeal allowed the appeal, holding that it is fundamentally unfair to find liability on theories that were never pleaded and not subjected to the adversarial process.

The cross-appeal regarding fiduciary duty and breach of confidence was dismissed.