Janice B. Payne

The defendants brought a motion under Rule 25.11 to strike the plaintiff's Fresh as Amended Statement of Claim in its entirety, or alternatively, to strike specific paragraphs.

The plaintiff, a former union president, claimed constructive dismissal, breach of contract, intentional infliction of mental suffering, and defamation following a prolonged conflict with the defendants.

The court declined to strike the claim as a whole, finding it provided a logical presentation of the conflict and could be responded to.

However, the court struck several specific paragraphs that contained evidence, irrelevant historical facts, or immaterial references to non-parties, granting the plaintiff leave to amend.

The plaintiff sued his former employer for wrongful dismissal following an asset sale of the business.

He claimed entitlement to 12 months' notice under his employment agreement due to a change in control.

The court dismissed the action, finding that the plaintiff failed to mitigate his damages by unreasonably rejecting an offer of comparable employment from the purchasing company.

Furthermore, the court found that the plaintiff had fully mitigated his damages through earnings generated by his own corporation during the notice period.

In a wrongful dismissal action, the defendant brought an eve-of-trial motion to adjourn the trial and compel further disclosure and discovery regarding the plaintiff's mitigation efforts through his corporation.

The plaintiff had previously answered 'zero' when asked about personal income from the corporation, but recently produced a ledger showing significant shareholder loan repayments.

The court granted leave for the motion, finding the plaintiff had an ongoing obligation to correct misleading discovery answers.

The court ordered limited additional documentary production and a brief discovery, but declined to adjourn the trial, directing that the discovery be completed before the trial commenced the following week.

The applicant, a public service executive, sought judicial review of an investigation report prepared by a "competent person" under the Canada Occupational Health and Safety Regulations regarding workplace violence complaints against her.

The applicant argued the report lacked procedural fairness because she did not have meaningful input and was not provided sufficient particulars.

The Federal Court dismissed the application as premature, finding that the report merely set out recommendations to the employer and was part of an ongoing process, with no administrative action yet taken against the applicant.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The plaintiff commenced an action for wrongful dismissal and served a Rule 49 offer to settle early in the litigation.

The defendant accepted the offer two years later, shortly before trial, agreeing to pay costs on a partial indemnity scale up to the date of the offer and on a substantial indemnity scale thereafter.

The parties could not agree on the quantum of costs.

The court assessed the plaintiff's bill of costs, noting some excessive time docketed for discovery and pre-trial preparation, and fixed total costs at $119,123.45.

The plaintiff brought a motion for summary judgment alleging constructive dismissal after the employer replaced her during a medical leave and offered a significantly reduced position at lower pay.

The court held that the employer had already fundamentally altered the employment relationship by hiring a permanent replacement and offering only a demoted role, constituting constructive dismissal.

Summary judgment was granted on liability and reasonable notice was fixed at 15 months, including salary, benefits, and bonus entitlement.

However, genuine issues requiring trial remained regarding aggravated damages and alleged discrimination contrary to the Human Rights Code.

The plaintiff was awarded damages for wrongful dismissal subject to mitigation, while the remaining claims could proceed to further adjudication.

Following an appeal that upheld a contempt finding against a condominium board but varied the sanction, the Court of Appeal addressed the costs of the underlying contempt motion.

The motion judge had awarded $109,598 on a substantial indemnity basis.

The Court of Appeal found that the board's conduct, while contemptuous, did not warrant elevated costs as it was not motivated by personal gain or vengeance.

The costs award was reduced to $35,000 on a partial indemnity scale, payable jointly and severally by the condominium corporation and the individual board members.

The plaintiff moved to reopen a prior decision that had set aside an Anton Piller Order obtained against a former employee who joined a competitor, seeking to introduce fresh evidence allegedly showing the defendant and a third‑party competitor misled the court about future competition and misuse of confidential information.

The court applied the test for admission of fresh evidence, requiring proof that the evidence could not have been obtained earlier with reasonable diligence and that it would probably have changed the result.

The alleged new material largely concerned post‑hearing developments, including lobbying activities, industry publications, and a later government refit contract, which at most demonstrated potential future competition.

The court held that such evidence was irrelevant to the purpose of an Anton Piller Order, which is limited to preserving evidence of past wrongdoing.

The moving party therefore failed to show the evidence would have altered the earlier decision or remedied the prior failure to provide full and frank disclosure.

Condominium directors and the corporation appealed a finding of civil contempt arising from landscaping work that departed from an earlier endorsement requiring restoration of the condominium podium to its original design after garage repairs.

The majority held that, read in context, the endorsement was clear and unambiguous, that the appellants understood their obligations, and that they wilfully breached the order notwithstanding their asserted statutory authority under the Condominium Act, 1998.

The court upheld the restoration order but varied the sanction, holding that the motion judge erred in principle by focusing on shifting restoration costs away from unit owners rather than on deterrence, and by imposing a very substantial financial burden without evidence of ability to pay.

The order requiring the individual directors to bear restoration costs personally was set aside and replaced with fines of $7,500 each; indemnification under s. 38 was unavailable.

A former senior employee moved to set aside an ex parte Anton Piller Order obtained by his former employer after he resigned and joined a competing shipbuilding company.

The employer alleged the employee had downloaded thousands of pages of confidential documents and might misuse them in connection with government shipbuilding bids.

On review, the court held that the stringent requirements for an Anton Piller order were not met, particularly the requirements of very serious damage and a real risk that evidence would be destroyed.

The court also found that the moving party had failed to make full and frank disclosure on the ex parte motion, including misstatements regarding an alleged competing government bid and the competitive relationship between the companies.

Given the absence of serious harm, the availability of less intrusive remedies, and the disclosure deficiencies, the Anton Piller order was set aside.

Following a successful Rule 21 motion striking claims against an individual defendant in a wrongful dismissal action, the court addressed costs after the plaintiff requested an opportunity to make submissions.

The defendant sought substantial indemnity costs, relying in part on an offer to settle proposing dismissal of the claim without costs.

The plaintiff argued the defendant was not fully successful because leave to amend had been granted and contended that efforts to resolve the motion and proposed amendments justified either no costs or costs in the cause.

The court held that the defendant was the successful party on the motion and that the usual rule that costs follow the event applied.

The previously ordered costs of $12,500 payable by the plaintiff to the defendant were confirmed as fair and reasonable.

The defendant, Dr. Lalonde, brought a motion to strike the plaintiff's statement of claim against him for disclosing no reasonable cause of action and for being frivolous, vexatious, or an abuse of process.

The plaintiff, a former CFO of the co-defendant SOGC, alleged that Lalonde committed intentional torts including deceit, intentional interference with contractual relations, inducing breach of contract, and sexual harassment.

The court found that the pleadings failed to establish the essential elements of the intentional torts, particularly the requisite intent and reliance.

The court also held that there is no freestanding tort of harassment.

The claim against Lalonde was struck, but the plaintiff was granted leave to amend.

The applicant, a former Superintendent, alleged she was terminated because of her race, ethnic origin, and creed, and for raising concerns about systemic discrimination against Muslims.

In this interim decision, the Tribunal addressed the applicant's request for production of various documents.

Applying the standard of 'arguable relevance', the Tribunal ordered the respondent to produce several categories of documents, including personnel files, communications regarding the termination of another Deputy Superintendent, and employment systems review reports, while denying requests for documents lacking sufficient nexus to the issues in dispute.

The appellants appealed an order granting partial summary judgment to the respondent condominium corporation for unpaid common expense charges (condo fees).

The appellants argued that the claim for arrears should not have been separated from their counterclaims and set-off claims, which were directed to trial.

The Court of Appeal dismissed the appeal, holding that section 84(3)(b) of the Condominium Act, 1998 requires unit owners to pay common expenses regardless of any other claims between the parties.

The motion judge correctly found no genuine issue requiring a trial regarding the arrears and properly ordered the release of trust funds to partially satisfy the judgment.

The moving parties brought motions to quash appeals from an order of the Superior Court of Justice, arguing that the appeals were from interlocutory orders.

The Court of Appeal agreed with respect to the Dewan motion, finding the order appealed from did not finally dispose of any defences, and quashed that appeal.

For the Condominium motion, the Court found that most paragraphs of the order were interlocutory, except for one paragraph that removed a defence at trial, making it a final order.

The Condominium motion was allowed in part, quashing the appeal except for the final order paragraph.

The applicant, a pediatric anesthesiologist, sought judicial review of a university committee's decision denying his promotion to Associate Professor.

The denial was based on a prior finding of sexual harassment, which had resulted in probation rather than the dismissal recommended by the Dean.

Because the promotion was denied, the applicant lost his academic medical license.

The Divisional Court quashed the committee's decision, finding a breach of procedural fairness.

The court held that the Dean's active participation at every level of the promotion process, after having previously investigated the harassment complaint and recommended the applicant's dismissal, raised a reasonable apprehension of bias.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The appellant employer appealed the trial judge's award of a nine-month notice period and costs for wrongful dismissal, arguing the trial judge erred in finding the respondent was induced to leave her previous secure employment.

The respondent cross-appealed the dismissal of her claim for lost disability benefits.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the notice period or costs award.

The Court allowed the cross-appeal, holding that the respondent was entitled to the value of disability benefits she would have received during the notice period, adjusted to prevent double recovery of both full salary and disability benefits for the same period.

The appellant appealed a trial judgment dismissing his wrongful dismissal action.

The trial judge found that the appellant's conduct, which included deceiving his supervisor and using the employer's resources to pursue his own business opportunities, constituted cause for dismissal.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact or application of legal principles.