Ian A. Johncox

This is a costs endorsement from the Court of Appeal for Ontario following a successful appeal by the appellant, Candace Taylor, in a constructive dismissal action.

The Court had previously set aside the motion judge's dismissal of the action and the original costs order.

This endorsement addresses the costs of the underlying motion.

The appellant sought $15,000 or, alternatively, partial indemnity costs of $10,533.07.

The respondent argued for no costs.

The Court awarded the appellant partial indemnity costs of $8,500, finding this amount to be fair, reasonable, and proportionate, while accounting for some duplication in counsel's efforts.

The appellant appealed the dismissal of her constructive dismissal action, which was decided on a Rule 21 motion.

The Court of Appeal found that the motion judge erred by taking judicial notice of disputed facts and by misapplying pleading rules, effectively treating the Rule 21 motion as a summary judgment motion.

The Court held that material factual issues were in dispute, making a Rule 21 determination inappropriate without evidence.

The Court declined to interpret the Employment Standards Act provisions and associated regulations regarding infectious disease emergency leave (IDEL) in the absence of a proper factual record, remitting the action to the Superior Court for determination.

The defendant employer brought a Rule 21 motion to dismiss the plaintiff's constructive dismissal action.

The plaintiff had been temporarily laid off due to the COVID-19 pandemic and government-mandated closures.

The court held that under the Employment Standards Act and O. Reg. 228/20, the temporary layoff was deemed an Infectious Disease Emergency Leave (IDEL).

The court explicitly declined to follow a recent decision (Coutinho) and concluded that the IDEL regulation displaced the common law doctrine of constructive dismissal for COVID-19 related layoffs.

The plaintiff's action was dismissed.

The plaintiff commenced an action against the defendant disaster clean-up contractor more than four years after discovering the alleged negligence, well past the limitation period.

After the defendant served a summary judgment motion based on the expired limitation period, the plaintiff agreed to discontinue the action.

The parties could not agree on costs.

The defendant sought $30,000 on a substantial indemnity basis, while the plaintiff argued for $12,000, asserting the defendant took unnecessary steps after being notified of the intent to discontinue.

The court awarded the defendant $18,000 in costs, finding that while the defendant was entitled to costs for its thorough preparation, it was not entitled to costs for steps unnecessarily taken after the plaintiff advised of its intention to discontinue.

This costs endorsement followed a successful motion by the plaintiffs against the GCMC Defendants to establish a discovery plan.

The plaintiffs sought partial indemnity costs, while the GCMC Defendants argued for no costs due to alleged non-compliance with a previous court order.

The court found the plaintiffs acted reasonably and were largely successful in their motion, noting the GCMC Defendants had used the discovery plan issue as a tactic to seek dismissal of the action, contrary to the purpose of Rule 29.1.

Applying general costs principles, the court awarded the plaintiffs fixed costs.

The franchisor defendants brought a motion for summary judgment seeking dismissal of a franchisee action and judgment on a counterclaim following termination of four franchise agreements without notice.

The franchisees alleged breaches including failure to provide notice and violation of the duty of fair dealing under the Arthur Wishart Act.

The court held the terminations were justified due to substantial defaults amounting to acts of bankruptcy and rejected arguments based on estoppel and statutory good faith.

The plaintiffs also failed to produce basic financial documentation capable of proving lost profits, rendering their damages claim unsustainable.

Summary judgment was granted dismissing the action, while the counterclaim was left for trial due to disputed facts.

Following a successful motion by the defendants to set aside a default judgment in a defamation action, the parties made written submissions on costs.

The plaintiff sought costs thrown away for the default judgment and partial indemnity costs for the motion.

The defendants sought costs against the plaintiff, alleging misconduct.

The court declined to award costs to the defendants and ordered them to pay the plaintiff's wasted costs of $29,491.52 and partial indemnity costs of $19,507.74, payable conditionally based on whether the defendants comply with the order setting aside the default judgment.

A home builder sued purchasers for breach of a cost-plus construction contract after the defendants terminated the project before completion.

The defendants alleged breaches including cost overruns, delay, improper billing, and reliance on the Consumer Protection Act, 2002.

The court held the construction contract and the agreement of purchase and sale formed one integrated real estate transaction, rendering the Consumer Protection Act inapplicable.

The court found the defendants terminated the contract without cause and breached restrictive covenants requiring completion of construction within one year.

Damages were limited to unpaid invoiced work already performed, as the builder failed to prove lost profits from the abandoned project.

An employee alleged constructive dismissal after his employer proposed moving him from a managerial role supervising staff into a newly created “Special Projects” position without management responsibilities.

The court held that the proposed change constituted a substantial unilateral alteration of a fundamental term of the employment contract because it removed supervisory authority and diminished status and prestige.

Evidence showed the employer had already decided to implement the change despite representing it as a discussion, confirming the employee’s perception that he had no real choice.

The court further held the employee was not required to mitigate by remaining in the altered position because it would have created humiliation and loss of dignity.

Damages were awarded based on a 12‑month notice period, partial bonus entitlements, compensation for stock option losses, and limited pre‑judgment interest.