Ernest Coetzee

The plaintiff sought default judgment in a wrongful dismissal action after the defendant was noted in default and unsuccessful in attempts to set aside that default.

The court accepted the uncontested evidence that the employer failed to accommodate the employee’s deafness and subjected the employee to humiliating treatment culminating in termination.

Applying the Bardal factors, the court awarded 24 months’ pay in lieu of notice and damages for loss of benefits.

The court also awarded damages for discrimination contrary to the Human Rights Code, intentional infliction of mental suffering, and punitive damages due to the employer’s egregious conduct and failure to accommodate disability.

Total damages exceeded $109,000 plus interest and costs.

The defendants brought a motion under Rule 21.01(3) of the Rules of Civil Procedure seeking dismissal or a stay of a wrongful dismissal and breach of contract action.

The dispute arose from an employment contract containing a sole employer clause and a forum selection clause requiring disputes to be resolved exclusively in Mexico.

The court found that although Ontario technically had jurisdiction, the employment contract’s choice of forum clause and the existence of ongoing proceedings before Mexican labour authorities justified declining to exercise that jurisdiction.

Applying the principles governing enforcement of forum selection clauses, the court held the plaintiff failed to demonstrate strong cause to depart from the agreed forum.

The Ontario action was stayed pending the outcome of the Mexican proceedings.