Ian A. Johncox

The applicant, a municipal contractor, sought judicial review of a decision by the City's Fair Wage Office finding that it violated the Fair Wage Policy by failing to pay a worker the minimum hourly rate for a 'welder'.

The applicant argued it was denied procedural fairness and that the decision was unreasonable because the worker performed unskilled 'stud welding' rather than skilled journeyman welding.

The Divisional Court dismissed the application, finding no procedural unfairness as the applicant was given fair notice and multiple opportunities to respond.

The court also held the decision was reasonable, as the applicable Sewer and Watermain schedule did not distinguish between certified and uncertified welders, and the worker spent 90% of his time performing a form of welding.

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 appellants appealed a Small Claims Court decision awarding the respondent $25,000 for a concealed mould defect in a house she purchased from them.

The appellants argued the trial judge erred by admitting hearsay evidence from a contractor, imputing knowledge of the defect, and acting unfairly during the trial.

The Divisional Court dismissed the appeal, finding that the trial judge properly exercised discretion to admit the hearsay evidence under the Courts of Justice Act and that overwhelming circumstantial evidence supported the finding that the appellants knew about and concealed the mould.

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 appellant appealed a trial decision that awarded her $10,000 for an ankle injury sustained in a slip and fall, but dismissed her claim that the fall caused or exacerbated a neck injury.

The appellant argued the trial judge failed to consider the evidence holistically to infer causation.

The Divisional Court applied the palpable and overriding error standard of review and found no error in the trial judge's analysis of causation.

The appeal 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 plaintiffs brought a motion to establish a discovery plan after the parties failed to agree on one.

The court noted the lack of meaningful communication between counsel and emphasized that discovery planning should be a collaborative, not adversarial, process.

The court adopted the plaintiffs' draft discovery plan with some amendments, finding it adequately addressed the requirements of Rule 29.1.03(3).

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.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, sex, and reprisal.

She claimed she was sexually harassed by a co-worker years prior, subjected to a toxic work environment, and reprised against when the respondent required her to pay rent for her employer-provided apartment while on medical leave.

The Tribunal dismissed the sexual harassment allegations for delay, finding no series of incidents and no good faith explanation for the delay.

After hearing the applicant's evidence, the Tribunal dismissed the remaining allegations, finding that the work environment complaints were not linked to any Code grounds and that the reprisal claim had no reasonable prospect of success because the applicant's underlying complaints did not relate to Code rights.

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.

In a defamation action arising from a broader franchise dispute, the defendants moved to set aside a substantial default judgment.

Applying the five-factor framework governing relief from default, the court found the motion was brought promptly, the defendants had a plausible explanation for their default, there was at least an arguable defence, and the plaintiffs would suffer no substantive prejudice from a merits determination.

The court also found the confusion created by parallel related litigation and different counsel of record materially contributed to the default.

The default judgment was set aside on condition that counsel be retained and a statement of defence and counterclaim be delivered within 60 days.

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.

The applicant alleged that his employment was terminated because he attended medical appointments related to his hypothyroidism.

The respondents claimed the termination was due to excessive unexcused tardiness and absences.

The Tribunal found that the applicant's absences for medical appointments related to his disability were a factor in the decision to terminate his employment.

The Tribunal concluded that the applicant was subjected to discrimination on the basis of disability and ordered the respondents to pay $12,000 for injury to dignity, feelings, and self-respect, and to implement a human rights policy and training.

The applicant filed a human rights application alleging discrimination and reprisal on the basis of disability, claiming she was not provided with appropriate modified work and was terminated for failing to meet production quotas.

The Tribunal issued a Notice of Intent to Defer because the applicant was concurrently pursuing appeals before the Workplace Safety and Insurance Board (WSIB) regarding the same facts and issues.

Finding significant overlap between the WSIB proceedings and the human rights allegations, the Tribunal ordered the deferral of the application pending the conclusion of the WSIB process to avoid concurrent proceedings and inconsistent findings.

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.

The applicant alleged discrimination on the basis of disability, claiming her employment was terminated because she suffered a broken ankle 12 days prior.

The respondent employer maintained the termination was part of a broader workplace downsizing and the applicant was selected due to her disciplinary record.

The Tribunal found no evidence of a causal link between the temporary injury and the termination, noting other employees on light duties were retained and the applicant received pay in lieu of notice covering her recovery period.

The application was dismissed.

The appellants appealed a summary judgment dismissing their counterclaim.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the Consumer Protection Act applied to a handwritten estimate for a construction contract, and whether the contract was exempt from the Act as part of a real estate transaction.

The matter was remitted for trial.

The appellant appealed a trial judgment regarding the conversion of its customer relationships and equipment by the respondents.

The Court of Appeal found that the trial judge erred in determining the extent of the respondents' entitlement to compete based on a rescinded franchise agreement, and in finding that the appellant failed to mitigate its damages.

The Court allowed the appeal, set aside the trial judgment, and awarded the appellant $40,000 in damages for the conversion of its business relationships, plus costs.