Jason K. Wong

The Court of Appeal for Ontario dismissed the appeal of Gavin Bertsch from the Superior Court’s dismissal of his wrongful dismissal action against Datastealth Inc. The court upheld the enforceability of the employment agreement’s termination provision, which limited Bertsch’s entitlements on termination to the minimum requirements under the Employment Standards Act, 2000 (ESA).

The court found the clause to be unambiguous and compliant with the ESA, precluding any claim for common law damages.

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

The defendant, Ecolab Co., brought a motion seeking an order to compel the plaintiff, Joe Rae, a former employee, to return confidential company documents he had taken without authorization.

Rae, a former Canada Controller, admitted to taking the documents for litigation purposes after his employment was terminated without cause.

Ecolab asserted after-acquired cause and counterclaimed for breach of fiduciary duty and confidence.

The court found the documents to be confidential and held that Rae's self-help approach circumvented proper discovery procedures.

The motion was granted, ordering Rae to return and destroy all copies of the documents, emphasizing that such self-help remedies are not condoned and that the balance of convenience favored Ecolab due to the confidential nature of the information and the potential for irreparable harm.

The defendants brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike portions of the plaintiff's Statement of Claim, arguing they were scandalous, frivolous, vexatious, or prejudicial.

The impugned allegations detailed a long-standing relationship between the plaintiff and a non-party, Mr. Ahlowalia, including his alleged role as a spiritual leader of a "cult" and the plaintiff's unpaid labour and expectation of corporate ownership.

The plaintiff argued these details were necessary to prove the reasonableness of his expectations for an ownership interest (oppression remedy), fraudulent misrepresentation, and constructive dismissal.

The court dismissed the motion, finding that the allegations were relevant to the plaintiff's understanding of his role and expectations within the defendant corporations, and that it was not a "clearest of cases" for striking pleadings.

Costs were awarded to the plaintiff.

The defendants brought a motion to strike portions of the plaintiff's Statement of Claim, arguing the allegations were scandalous, frivolous, or vexatious.

The impugned pleadings detailed the plaintiff's long-standing relationship with the directing mind of the defendant corporations, including allegations of a cult-like following, unpaid labour, and promises of an ownership interest.

The court dismissed the motion, finding the allegations were relevant to the plaintiff's claims for an oppression remedy and constructive dismissal, and that the plaintiff was entitled to have his claim tested on the merits.

This appeal addressed whether the trial judge erred in awarding eight months' damages for wrongful dismissal.

The appellant argued the trial judge improperly considered the respondent's prior service and the time it took him to find new employment.

The Court of Appeal affirmed the trial judge's decision, finding the eight-month notice period reasonable and within an acceptable range, emphasizing deference to the trial judge's assessment and the holistic application of Bardal principles.

The appeal was dismissed.

The plaintiff, a wrongfully dismissed regional sales manager, sought damages including lost commissions during an 8-month common law notice period.

The defendant argued that sales plan provisions limited commission entitlement to sales booked and billed prior to active employment termination.

The court applied the O'Reilly v. IMAX Corporation two-step analysis, finding that the 2017 Sales Plan did not unambiguously remove common law rights to commissions during the notice period.

Furthermore, changes in the 2018 Sales Plan regarding termination provisions were not properly communicated, lacked consideration, and potentially violated the Employment Standards Act, 2000.

The plaintiff was awarded damages for lost base salary, benefits, and commissions.