K. Alexander

The appellant employee was temporarily laid off when the respondent's restaurant relocated.

He later claimed constructive dismissal but continued to work for the respondent to mitigate damages.

The Small Claims Court dismissed the claim, finding the employee condoned the breach by accepting wages and returning to work.

On appeal, the Divisional Court found the trial judge erred in law by equating silence with condonation, failing to allow a reasonable time to assess the new terms, and misunderstanding the law of mitigation.

The appeal was allowed and a new trial ordered.

The appellant employer appealed a Small Claims Court decision finding that it had constructively dismissed the respondent employee and discriminated against her based on disability.

The trial judge found that the employer created a poisoned work environment by harassing the employee while she was on medical leave, including making an inappropriate unannounced visit to her home.

The Divisional Court dismissed the appeal, holding that the trial judge's findings of fact were entitled to deference and that the employee had not condoned the conduct or abandoned her employment.

The award of damages for constructive dismissal and under the Human Rights Code was upheld.

The plaintiffs brought a motion on consent to place the action in abeyance pursuant to s. 106 of the Courts of Justice Act.

The action involves complex issues of Aboriginal title relating to water and floodplains in Southern Ontario, which are also being addressed in a separate proceeding.

The court agreed that it would be disproportionate and inefficient to advance this action concurrently and ordered the matter placed in abeyance.

The defendant brought a motion to remove the plaintiff’s lawyer of record on the basis of an alleged conflict of interest.

The defendant had previously consulted another lawyer who worked in association with the plaintiff’s lawyer at the same office group regarding the same employment dispute.

The court applied the principles from MacDonald Estate v. Martin concerning removal of counsel and protection of confidential information.

It held that the presumption that lawyers share confidential information applies within law firms but does not automatically apply to lawyers who merely work in association with separate practices.

Because the lawyers had separate practices and there was no evidence that confidential information had been shared with the lawyer of record, the motion to remove counsel was dismissed.

Following an appeal where the appellant was partially successful, the parties sought a determination on costs.

The respondent had made a pre-trial offer to settle for $275,000, and the appeal reduced her damages to $394,884.52, which still exceeded the offer.

The trial costs order of party and party costs to the offer date and solicitor and client costs thereafter was maintained.

For the appeal, the appellant succeeded on two of six issues.

The court awarded the appellant one-third of its party and party costs of the appeal, noting the respondent's pre-appeal offer did not address all issues on which the appellant succeeded.

The plaintiff, a senior communications consultant, was wrongfully dismissed after one year of employment.

A jury awarded her 12 months' notice (including a three-month Wallace extension for bad faith) and $75,000 in punitive damages.

The employer appealed.

The Court of Appeal upheld the 12-month notice period, finding the employer's conduct in maintaining cause allegations and withholding commissions justified the Wallace extension.

However, the court set aside the punitive damages award, finding no independent actionable wrong and that the generous compensatory award was sufficient to deter the employer's conduct.

The court also ordered a new trial on the limited issue of whether the plaintiff's compensation included revenues from the Montreal office, as the trial judge had unfairly precluded the employer from leading evidence on this point.