Gregory T. Evans

Following a trial regarding rectification of a divorce judgment, the court addressed costs.

The applicant successfully obtained rectification of the divorce judgment under Rule 25(19) of the Family Law Rules to reflect the parties’ intention that a $100,000 payment be made, while the respondent achieved partial success by obtaining certain credits against that amount.

The court found the applicant had succeeded on the dominant issue but noted the legal question concerning the scope of Rule 25(19) was novel and that some of the litigation arose due to solicitor negligence.

Balancing these considerations, and finding no unreasonable conduct by the respondent within Rule 24(11), the court reduced the costs award.

Nominal costs were awarded to reflect divided success and the unusual circumstances of the case.

The defendant employer brought a motion for summary judgment dismissing a wrongful dismissal action commenced by a former employee.

The court found no genuine issue for trial regarding claims of constructive dismissal and wrongful dismissal because the employee accepted the contractual terms and the employer had terminated employment without cause pursuant to the contract.

However, the court determined that the employer failed to pay the statutory severance required under the Canada Labour Code for federally regulated employees.

The court held it had concurrent jurisdiction with administrative processes under the Code and granted summary judgment in favour of the employee for the statutory severance amount and prejudgment interest, while dismissing claims for punitive damages.

The remainder of the action was dismissed.

The applicant sought rectification of a 2006 divorce order that omitted agreed corollary relief, including $100,000 in support arrears and ongoing support, after solicitor error resulted in a divorce simpliciter.

Following a trial directed on the factual dispute, the court found a sufficient common intention between the parties to support rectification and held that Rule 25(19)(b) permits amendment where an order contains a mistake arising from inadvertent omission.

The court rejected arguments based on solicitor negligence, delay, laches, and res judicata, finding no prejudice sufficient to bar equitable relief.

After crediting specified payments made since the order, the court fixed remaining support arrears at $51,392.11.