Fatimah Khan

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.