Kenneth Alexander

The appellants appealed a judgment of the Superior Court of Justice regarding a contract dispute with the respondent.

The appellants raised two main issues: first, whether the "common employer" issue constituted a different cause of action triggering a Limitations Act defence; and second, whether the trial judge erred in finding that Mr. Nourse had authority to bind the appellants to the contract with the respondent.

The Court of Appeal found that while the common employer issue raised pleading concerns, the trial judge's finding that the appellant had notice of the claim at least six weeks before trial meant any pleading deficiencies caused no prejudice.

The Court also deferred to the trial judge's factual finding regarding Mr. Nourse's authority to bind the appellants, which was supported by the evidence.

The appeal was dismissed with costs awarded to the respondent.

The appellant received notice of fundamental changes to his employment contract in July 2007, with working notice until September 1, 2009.

In October 2008, the respondents sought to impose immediate changes requiring the appellant to close his neighbourhood office and relocate to an Allstate-operated office.

The appellant refused and was terminated for cause on November 6, 2008.

The trial judge found the termination was proper.

On appeal, the court found that the Neighbourhood Office Agent Amendment (NOA) precluded the respondents from unilaterally imposing the relocation during the notice period, as it constituted a fundamental change to the agreed business model.

The appeal was allowed in part, with the appellant entitled to compensation for the balance of the notice period.

The appellant, a debt collector, was laid off when the respondent lost its contract with Capital One.

The respondent subsequently received a $6.675 million settlement from Capital One.

The appellant brought a class action alleging the respondent breached employment contracts by failing to pay commissions on the settlement payment.

The motion judge granted summary judgment dismissing the class action.

The Court of Appeal upheld the dismissal, finding that the motion judge did not err in interpreting the Commission Agreement as requiring employees to exceed a "breakeven" financial target to earn commissions, which laid-off employees could not satisfy.

The court also found no error in the motion judge's interpretation of the Settlement Agreement and upheld the use of summary judgment as an appropriate procedure.

Following the dismissal of a class action on a summary judgment motion, the successful defendant sought costs on a substantial indemnity basis due to a rejected settlement offer and unfounded allegations of fraud.

The plaintiff argued no costs should be awarded due to the defendant's conduct.

The court rejected both extreme positions, awarding costs to the defendant on a partial indemnity basis.

After adjusting the hourly rates to conform to the grid and deducting a prior costs award owed to the plaintiff, the court fixed the net costs payable by the representative plaintiff at $63,787.

The representative plaintiff brought a class action on behalf of debt collectors who were temporarily laid off when Global Credit's largest client, Capital One, terminated its collection agreement.

Following the termination, Capital One paid Global a $5.7 million settlement.

The plaintiff claimed the class members were contractually entitled to a 15 percent commission on this settlement, arguing it was compensation for post-dated cheques returned to Capital One.

On cross-motions for summary judgment, the court dismissed the action, finding that the settlement was not compensation for the post-dated cheques and that commissions were only payable if individual monthly breakeven targets were met, which did not occur.

Following a trial, the parties agreed that the partial indemnity costs recovery figure would be $60,000, subject to arguments on the appropriate scale.

The defendants sought substantial indemnity costs, relying on a Rule 49 offer and the plaintiff's alleged unreasonable behaviour.

The court rejected the defendants' arguments for substantial indemnity costs and ordered the plaintiff to pay the agreed partial indemnity costs of $60,000.

The plaintiff, a long-term sales agent, was terminated for cause by the defendant insurance company after refusing to accept fundamental changes to his employment terms, including relocation and a new compensation model.

The court found that the employer provided reasonable notice of the changes and that the plaintiff's refusal to comply constituted insubordination and abandonment of employment.

The court dismissed the plaintiff's claims for wrongful dismissal and damages, including claims for ongoing commissions and 'lifetime renewals', finding that the employment contract provisions ceased upon termination for cause and that the plaintiff failed to mitigate damages by refusing a reasonable offer of continued employment.

The plaintiff, Louise Talbot, brought a motion for partial summary judgment seeking repayment of $127,843 owed under two promissory notes from the defendants, Jeffrey Nourse and two corporate entities.

The defendants disputed the validity of one $200,000 note, claiming it was an investment, and argued that outstanding undertakings regarding bank statements precluded summary judgment.

The court, applying the framework from Hryniak v. Mauldin, found no genuine issue requiring a trial.

The evidence of a handwriting expert and a witness corroborated the plaintiff's claim regarding the promissory notes.

The court dismissed the defendants' arguments regarding the investment claim and the relevance of outstanding undertakings to the promissory notes.

The court also declined to stay execution of the judgment pending the counterclaim, citing the delay caused by the defendants and the lack of interest on the notes.

Judgment was granted for the plaintiff for $127,843 plus pre- and post-judgment interest.

The defendants brought a motion to amend their statement of defence to add a limitation period defence under section 13 of the Limitations Act, 2002.

The motion was brought on the eve of a peremptory summary judgment motion, after four years of litigation and numerous adjournments.

The court dismissed the motion to add the limitation defence, finding that the unexplained delay would cause non-compensable prejudice to the plaintiff, and that the proposed defence lacked merit given the novation of the debt through the promissory notes.

A minor factual amendment to another paragraph was permitted.

The plaintiff brought a motion for certification of a proposed class action on behalf of former employees seeking commissions allegedly owing on post‑dated collections following mass layoffs by the defendant debt collection company.

The claim alleged breach of contract and unjust enrichment arising from the defendant’s return of certain collections to a client rather than paying commissions to employees.

After discussion with the court, the parties consented to certification with revised pleadings, class definition, and common issues.

The court independently assessed the requirements under s. 5 of the Class Proceedings Act, 1992 and found the criteria satisfied, including an identifiable class, common issues, and a suitable representative plaintiff.

Certification was granted and the court fixed costs payable to the plaintiff in the amount of $25,000 in any event of the cause, payable after the defendant’s upcoming summary judgment motion.

Following a successful appeal from a Master's order dismissing a motion to remove opposing counsel for conflict of interest, the court determined the appropriate costs disposition.

The defendant/appellant sought costs for both the motion before the Master and the appeal.

The court held it had authority to address costs at both stages.

While the quantum of the Master’s $3,000 costs award was maintained, the court ordered those costs payable forthwith rather than in the cause.

Additional partial indemnity costs of $4,250 were awarded for the appeal.

The defendant appealed a master's order dismissing a motion to remove the plaintiff's counsel for an alleged conflict of interest.

The issue was whether conflict rules applicable to law firm partnerships also apply where lawyers practise in a cost‑sharing association but hold themselves out publicly as a single firm.

The court held that where lawyers present themselves to the public as a firm, the same conflict principles apply, including the presumption that confidential information may be shared absent adequate screening mechanisms.

Because the lawyers shared branding, contact information, and facilities without evidence of protective measures or a shared conflicts system, a reasonable observer would perceive an appearance of conflict.

The master erred in relying on conclusory assurances rather than objective safeguards.

The appeal was allowed and the plaintiff’s counsel was removed from the record.

The plaintiff commenced a foreclosure action regarding a Multiple Unit Residential Building (MURB) investment scheme.

The investors, who had signed powers of attorney in favour of the developer, alleged financial manipulation and breach of fiduciary duty.

Given the complex financial history, the lack of proper accounting by the mortgagee, and the overlapping shareholder oppression claims, the case management judge directed a reference to determine the mortgage accounting and related issues.

The judge also ordered a stay of the foreclosure action and oppression applications pending the reference.