Howard Markowitz

Following a trial where both the plaintiffs' claim and the defendant's counterclaim were dismissed, the court determined the issue of costs.

The plaintiffs had made two global offers to settle that were not accepted by the defendant.

Although the offers did not strictly comply with Rule 49.10, the court considered them under Rule 57.01 and section 131(1) of the Courts of Justice Act.

The court found that the defendant should have accepted the reasonable offers and ordered the defendant to pay the plaintiffs $80,657.12 in partial indemnity costs, inclusive of HST and disbursements.

This case involved an action for damages by the plaintiffs (2551965 Ontario Ltd. and Cabin Country Realty Ltd.) for alleged breach of restrictive covenants and interference in contractual/economic relations, and a counterclaim by the defendant (Harold Warkentin) for wrongful dismissal.

The court found that the employer had just cause to dismiss the defendant due to willful misconduct, including verbal threats, unprofessional internal notes, and a conflict of interest regarding a client transaction.

Consequently, the defendant's counterclaim for wrongful dismissal was dismissed.

The court also found the restrictive covenants in the share purchase agreement to be unenforceable against the defendant post-termination, as the geographic scope ("Northwestern Ontario") was overly broad and unnecessary to protect the plaintiffs' legitimate business interests.

As a result, the plaintiffs' claim for damages related to these covenants was also dismissed.

The appellant appealed a Small Claims Court decision dismissing his claim for wrongful dismissal damages.

He was terminated for unsuitability after six weeks of employment.

The Divisional Court upheld the trial judge's findings that the employment contract contained a valid six-month probationary period and an enforceable termination clause limiting entitlements to the Employment Standards Act minimums.

Because the appellant had less than three months of service, he was not entitled to statutory notice or pay in lieu thereof.

The appeal was dismissed.

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.

Following a trial where the plaintiff was awarded $150,899 in damages for the termination of a consulting agreement, the court determined the issue of costs.

The plaintiff sought substantial indemnity costs based on two offers to settle, but the court found neither met the requirements of Rule 49.10.

The court awarded partial indemnity costs but reduced the quantum to $20,000 all-inclusive due to the plaintiff's late production of material documents shortly before trial, which breached the Rules of Civil Procedure.

The plaintiff, an independent contractor, sued for unpaid termination payments after the defendant terminated his consulting agreement.

The defendant initially terminated without cause, then later alleged cause based on breaches of non-competition, confidentiality, and the duty of honest performance.

The court found the non-competition clause unenforceable due to ambiguity and overbreadth, and no material breach of confidentiality or dishonest conduct, as the plaintiff's activities were minor and the confidential information was not misused.

Judgment was awarded to the plaintiff for the unpaid amounts.

The appellant appealed the dismissal of his wrongful dismissal action.

The trial judge had found that the termination clause in the appellant's employment agreement was enforceable and clearly rebutted the common law presumption of reasonable notice, limiting his entitlement to the minimums under applicable employment standards legislation.

The Divisional Court found no palpable and overriding error in the trial judge's objective interpretation of the contract and dismissed the appeal.

An estate trustee appealed a summary judgment dismissing a claim as statute barred under the Limitations Act, 2002.

The deceased had loaned money secured by a promissory note payable on demand or upon sale of specified property.

The trial judge found the limitation period began when the deceased became aware the property had been sold.

The estate trustee made demand in May 2015 and commenced action in July 2015, more than two years after the limitation period began.

The appellant argued that section 7 of the Limitations Act should extend the limitation period to account for the time needed for the estate trustee to review the deceased's affairs and obtain probate.

The Court of Appeal dismissed the appeal, finding that section 7 does not apply to deceased persons and that an estate trustee cannot be construed as a litigation guardian for purposes of the statute.

RONA Inc. brought a motion for summary judgment to dismiss a wrongful dismissal action initiated by Brian Roskaft.

Roskaft, who had been on long-term disability (LTD) since 2012, was terminated in 2015 on the grounds of frustration of contract, with RONA asserting there was no reasonable likelihood of his return to work.

The court considered the totality of evidence, including post-termination medical information, to determine if the contract was frustrated at the time of dismissal.

The motion was granted, and Roskaft's claim was dismissed.

The appellant appealed the trial judge's decision dismissing his wrongful dismissal action.

The appellant, who had worked for the respondent company for over 21 years as general manager of its heat treating division, claimed he had taken a leave of absence to wind up his father's estate in India rather than resigning.

The trial judge found that the appellant had resigned on January 22, 2010, based on evidence including the testimony of his supervisor and substantial circumstantial evidence.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error and dismissing the appeal with costs awarded to the respondent.

The appellant appealed a Divisional Court decision that reversed a Small Claims Court judgment finding wrongful termination.

The respondent employer terminated the appellant, a probationary employee, before completion of six months of employment without just cause.

The trial judge had disregarded the probationary clause in the employment contract, finding it was not properly communicated.

The Court of Appeal upheld the Divisional Court's reversal, holding that the probationary term was valid and unambiguous, and that probationary employees may be terminated without notice during the probationary period if the employer makes a good faith determination of unsuitability, provided the employee was given a fair and reasonable opportunity to demonstrate suitability.

The appellant received statutory notice as required by the Employment Standards Act, 2000.

The plaintiff claimed wrongful dismissal, asserting he was on a leave of absence to administer his father's estate and was not called back to work.

The defendant contended the plaintiff had resigned.

The court found that the plaintiff had indeed resigned, based on unchallenged evidence, the plaintiff's conduct, and his defence in a related loan claim, thereby dismissing the wrongful dismissal claim.

The employer appealed a Small Claims Court judgment awarding the employee $25,000 for wrongful dismissal.

The employee was terminated for cause following a workplace altercation over a bagel, for which she had already been suspended.

The Divisional Court held that the trial judge erred in failing to consider the enforceability of the employment contract's termination clause, but found the clause void for potentially violating the severance provisions of the Employment Standards Act, 2000.

The court also upheld the trial judge's finding that the employer lacked just cause for termination and that dismissing the employee after she had already served a suspension for the same incident constituted double jeopardy.

The appeal was dismissed.

The appellant employer appealed a Small Claims Court decision that dismissed its defence of set-off against the respondent employee's wrongful dismissal damages.

The employer claimed the employee negligently failed to back up her work and lost USB keys, causing the employer to incur costs to reconstruct accounting data.

The Divisional Court found the trial judge erred in his reasons for dismissing the set-off claim, but ultimately upheld the dismissal because the evidence did not establish the employee was negligent or breached her employment contract.

The appeal was dismissed.

The appellant employer appealed a Small Claims Court decision awarding the respondent employee four months' pay in lieu of notice after he was terminated during his six-month probationary period.

The trial judge had relied on the employee's subjective understanding of 'probation' to find ambiguity in the employment contract.

The Divisional Court allowed the appeal and dismissed the action, holding that the trial judge erred in law by failing to apply an objective standard to contractual interpretation.

The Court affirmed that probationary employment is inherently tentative, and an employer may dismiss a probationary employee without notice if they are found unsuitable in good faith.

The defendant employer moved to strike or permanently stay a wrongful dismissal action on the basis that the court lacked jurisdiction because the plaintiff was a unionized employee subject to a collective agreement.

The plaintiff argued he was not part of the bargaining unit and therefore not bound by the collective agreement’s grievance and arbitration procedures.

The court held that the dispute concerned the applicability and interpretation of the collective agreement and the termination of employment, matters falling within the exclusive jurisdiction of labour arbitration under the Ontario Labour Relations Act.

The court found that determining whether the plaintiff was covered by the collective agreement was itself a matter for an arbitrator.

The action was therefore stayed and costs awarded to the defendant.

Following a successful trial, the plaintiff sought costs and disbursements against the defendant.

The defendant largely agreed with the plaintiff’s bill of costs but raised objections concerning certain travel expenses and the calculation of prejudgment interest.

The court held that the plaintiff was entitled to airfare to attend the trial but not travel costs for the pre‑trial hearing because participation could have occurred by teleconference.

The court also required proper receipts corresponding with trial dates and adjusted prejudgment interest to reflect a 16‑month period rather than the 19 months claimed.

Subject to those adjustments, the plaintiff was awarded the costs and disbursements set out in the bill of costs.

A former employee sought enforcement of a severance settlement reached following termination without cause after the employer refused payment upon later discovering a shortfall in funds related to an employee social committee activity.

The employer conducted an internal investigation and asserted after-acquired cause, alleging theft and material nondisclosure during settlement negotiations.

The court found the investigation inaccurate and unreliable, noting the employee had not admitted theft and the criminal charge had been withdrawn without admission.

The conduct occurred in relation to an informal arrangement unrelated to the employee’s job duties and was accompanied by an intention to repay the funds.

The employer failed to establish just cause or grounds to rescind the settlement.

The appellant appealed the dismissal of his wrongful dismissal action against his former employer.

At trial, the parties relied on entirely different documents containing starkly different terms to support their conflicting versions of the employment contract.

The trial judge rejected the appellant's version of events and preferred the employer's documentary evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings and credibility assessments were amply supported by the evidence and attracted considerable deference, with no palpable and overriding error demonstrated.

The appellants appealed the judgment of the Superior Court of Justice regarding their liability.

The Court of Appeal dismissed the appeal, finding that the trial judge's findings of fact were supported by the evidence and that she reached the correct result.

Costs were awarded to the respondent in the amount of $10,000.