James F. Diamond

The plaintiff, a 54-year-old employee with 21 years of service, brought an action for wrongful dismissal.

Following a summary judgment motion, a mini-trial was held to determine the plaintiff's character of employment, reasonable notice, and mitigation efforts.

The court found that despite his title, the plaintiff did not hold a management position.

Applying the Bardal factors, the court set the reasonable notice period at 18 months.

However, the court reduced the notice period by two months because the plaintiff failed to mitigate his damages by using an inaccurate resume to apply for incomparable senior management positions.

The plaintiff software provider sued the defendant investment management firm for unpaid invoices under an Investment Administration Services Agreement.

The dispute centered on whether the plaintiff could charge additional fees based on the Assets Under Administration (AUA) of all the defendant's funds, or only the specific fund for which the software was initially used.

The court applied principles of commercial contractual interpretation and found the plain language of the Agreement allowed fees based on total AUA.

The plaintiff was awarded $16,242.19 for AUA fees.

However, the court dismissed the plaintiff's claims for concurrent user fees and post-termination service charges, finding the contract ambiguous on concurrent users and noting the plaintiff breached its own post-termination obligations.

The defendant's counterclaim for wrongful termination was dismissed because the termination was lawful given the unpaid AUA fees.

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.

The applicant sought to recognize and enforce a foreign arbitral award issued by the Arbitration Institute of the Stockholm Chambers of Commerce against the respondent.

The respondent opposed enforcement, arguing the arbitrator lacked jurisdiction.

The court found that the respondent failed to establish any of the enumerated grounds under the Model Law to refuse enforcement, noting the powerful presumption that the arbitral tribunal acted within its jurisdiction.

The application was granted and the award was recognized and enforced.

The applicant, a member of the respondent not-for-profit corporation, brought an application for an oppression remedy under the Canada Not-For-Profit Corporation Act, challenging by-laws that prevented him from running for the board of directors.

The respondent moved to dismiss the application as statute-barred under the provincial Limitations Act.

The applicant argued that the doctrine of inter-jurisdictional immunity prevented the provincial limitation period from applying to a federal corporate statute.

The court rejected the constitutional argument, finding the Limitations Act did not impair any core federal competence.

The court further held that the applicant had discovered the material facts of his claim more than two years prior to commencing the application.

The application was dismissed as statute-barred.

The plaintiff brought a motion for summary judgment seeking $1,573,903.94 from the defendant for unremitted HST on the sale of unrefined gold.

The Canada Revenue Agency had audited the plaintiff and assessed the outstanding HST, which the plaintiff paid.

The defendant argued the claim was precluded by the Excise Tax Act and statute-barred under the Limitations Act, 2002.

The court found no genuine issue requiring a trial, holding that the cause of action under section 224 of the Excise Tax Act only arose when the plaintiff paid the tax, meaning the limitation period had not expired.

Summary judgment was granted.

The plaintiff, a former President and General Manager, brought a motion for summary judgment for wrongful dismissal after being terminated without cause.

The court granted summary judgment, awarding 17 months' reasonable notice.

The court also found the plaintiff was entitled to a pro-rated bonus for 2016 based on a historical average percentage, but dismissed claims for bonuses during the notice period, loss of benefits, and aggravated or punitive damages.

The court found the plaintiff had reasonably mitigated his damages and ordered a hybrid trust and accounting approach for the remainder of the notice period.

The plaintiff, a 59-year-old controller, was terminated after approximately 6.5 years of service.

He brought an action for wrongful dismissal, which proceeded by way of summary judgment.

The court applied the Bardal factors and awarded 10 months' reasonable notice.

The court also found the plaintiff was entitled to his 2016 discretionary bonus of $20,000, as the employer's unofficial policy of not paying bonuses to terminated employees was not applied fairly.

Claims for a 2017 bonus and loss of benefits were dismissed.

The court found the plaintiff had met his duty to mitigate.

The defendants submitted a written request under Rule 2.1.01(6) to dismiss the plaintiff's civil action, arguing it fell within the exclusive jurisdiction of the Family Court.

The plaintiff's action alleged fraud, breach of contract, unjust enrichment, and conspiracy regarding the failure to account for marital assets pending a divorce.

The court found that while the proceeding could not proceed on its own without a family law equalization claim, the claims against the non-spouse defendants existed independently.

Applying the test from Raji, the court held that Rule 2.1 is not for close calls and directed the defendants to bring a formal motion to transfer or consolidate the proceeding.

The request to dismiss was dismissed with no costs.

The applicant commenced an application seeking injunctive relief against the respondents.

The respondents requested the proceeding be dismissed under Rule 2.1.01.

The court found the applicant's written submissions relied on Organized Pseudolegal Commercial Arguments (OPCA) and failed to address the improper use of an application for standalone injunctive relief.

The court dismissed the proceeding as frivolous, vexatious, and an abuse of process.

The plaintiff, Kevin Skov, brought a motion for summary judgment in his wrongful dismissal action against G&K Services Canada Inc. and G&K Services, Inc. The central dispute revolved around the plaintiff's character of employment, which was relevant to both the reasonable notice period and the plaintiff's mitigation efforts.

The court found that there was a genuine issue requiring a trial regarding the character of employment and its impact on mitigation, which could not be resolved using the enhanced summary judgment powers without further fact-finding.

Consequently, the court ordered a mini-trial on the issue of the plaintiff's character of employment.

The plaintiff sued the defendants for negligence and breach of the Occupiers' Liability Act after falling in a grocery store parking lot.

The defendants moved for summary judgment, seeking dismissal of the action.

The court granted summary judgment, finding no genuine issue requiring a trial.

The plaintiff's expert opinion regarding an unexpected curb height lacked factual foundation because the plaintiff did not provide her own affidavit evidence to support the expert's assumptions about her expectations.

The court emphasized the plaintiff's failure to "lead trump" by not filing direct evidence and found the curb was not a hazard.

The defendants requested a case conference to address their motion to strike the plaintiff's factum, filed for an upcoming summary judgment motion, arguing it contained allegations previously precluded by a prior court order.

The court, acting as Case Management Judge, declined to strike the factum or adjourn the summary judgment motion for a preliminary motion to strike.

Citing jurisprudence, the court emphasized that preliminary motions to strike documents should be discouraged and reserved for the most egregious cases, as questions of relevance and admissibility are best left to the judge hearing the main motion.

The court ordered that the defendants' motion to strike would proceed at the outset of the summary judgment motion.

The applicant sought a declaratory order that the respondents breached a prior court order requiring them to permit cleaning and insecticide treatment of their condominium unit.

A trial of an issue was ordered to clarify events surrounding the attempted compliance.

The court found confusion in the instructions provided by the applicant's agent, which likely led the respondents to believe they had adequately prepared the unit.

Consequently, the court was not prepared to find a breach of its order and dismissed the applicant's request for declaratory relief.

The plaintiff, Svitlana Novak, sued the defendants for breach of contract and misrepresentation, alleging she was promised a full-time recreation assistant position that was subsequently given to another individual.

The defendants denied any such agreement or representation and raised a limitations defense.

The court dismissed the plaintiff's claim, finding it was statute-barred under the Limitations Act, 2002, as the plaintiff failed to rebut the statutory presumption of discoverability.

Alternatively, the court found the plaintiff failed to prove on a balance of probabilities that a guaranteed full-time employment agreement or specific representation was made.

The applicants purchased all shares of Stuart Investment Management Ltd. from the respondents pursuant to a Share Purchase Agreement.

Post-closing, the applicants discovered unpaid legal invoices from an ongoing regulatory investigation and faced a wrongful dismissal claim from a retained employee.

The applicants sought indemnification for these liabilities under the agreement, while the respondents cross-applied for unpaid rent under a sublease.

The court held that the respondents must indemnify the applicants for the undisclosed legal invoices, but not for the wrongful dismissal claim, which arose from the applicants' post-closing actions.

The court also found the individual respondent was not personally liable and dismissed the cross-application for rent due to lack of privity.

The respondent law firm brought a motion seeking a declaration that three releases, signed by the applicants as part of various commercial agreements, precluded the assessment of legal accounts rendered by the respondent to Sun Life Assurance Company of Canada.

The applicants opposed, arguing the releases constituted contracting out of the protections of the Solicitors Act and that the respondent was estopped by res judicata or issue estoppel from challenging a Registrar's Order for assessment.

The court found that the releases were valid commercial agreements between sophisticated parties, represented by counsel, and did not fall within the public policy concerns of the Solicitors Act as articulated in Jean Estate.

The court also determined that res judicata and issue estoppel did not apply because the validity of the Registrar's Order was not previously litigated.

The respondent's motion was granted, and costs were awarded to the respondent.

The applicant, a former Director of Business Development, sought payment of outstanding severance and a 2013 bonus following his termination without cause.

The respondent admitted the severance was due but requested a payment plan due to financial difficulties, and argued the bonus was subject to Board approval which was never given.

The court rejected the respondent's request for a payment plan for severance, citing that an employer's financial status is irrelevant to wrongful dismissal claims.

The court also found the bonus was properly authorized by the CEO, as per the employment agreement and termination letter, and the "indoor management rule" applied.

The application was granted for both severance and bonus.

The applicants, foreign nationals under house arrest due to immigration proceedings, sought a writ of habeas corpus or modification of their release terms.

The Attorney General of Canada opposed and brought a preliminary motion for a stay based on lack of jurisdiction, arguing that house arrest does not constitute "detention" for habeas corpus purposes.

The court dismissed the application, finding that house arrest, while restrictive, does not amount to detention or a deprivation of liberty in the context of habeas corpus, distinguishing it from jail or imprisonment.

The court noted that the applicants had alternative remedies through the Immigration Division and Federal Court for modifying release terms.

Following the dismissal of both the plaintiff's action and the defendants' counterclaim, the parties made written submissions on costs.

The defendants sought partial indemnity costs of $69,195.59, while the plaintiff argued she was entitled to costs due to the defendants' bad faith and breach of a standstill agreement.

The court noted that although the plaintiff succeeded on the issue of a joint family venture, the action remained a civil proceeding, making the Family Law Rules inapplicable.

Finding divided success but slightly more success for the defendants, and considering the defendants' conduct, the court awarded the defendants costs fixed at $30,000 on a partial indemnity basis.