Justin A. Villeneuve

Following a successful summary judgment motion for wrongful dismissal, the applicant sought costs.

The applicant had served a Rule 49 offer to settle that was more favorable than the final judgment of $35,743.13.

The court awarded the applicant partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

After considering proportionality and the respondent's unreasonable conduct in arguing mitigation without evidence and relying on an invalid termination clause, the court fixed costs at $25,000 inclusive of disbursements and interest.

The applicant, a 61-year-old senior draftsperson with 3.5 years of service, was terminated without cause.

The employer relied on a termination clause in the employment agreement to limit his entitlements.

The court applied the Waksdale framework, finding the 'for cause' provision violated the Employment Standards Act by contracting out of the statutory 'wilful misconduct' standard, thereby rendering all termination provisions void.

The court awarded 6 months of common law reasonable notice based on the Bardal factors and dismissed the employer's argument that the applicant failed to mitigate his damages.