wrongful dismissal

The Plaintiff sought default judgment against the Defendant for wrongful dismissal, discrimination under the Human Rights Code of Ontario, aggravated damages, and damages for inconvenience.

The court granted default judgment, finding the Plaintiff was wrongfully dismissed when her request to work from home to protect her husband's health (due to his disability) was refused, leading to her termination.

This was deemed discrimination based on association with a disabled person under s. 12 of the Human Rights Code.

The court awarded damages for wrongful dismissal, human rights breach, aggravated damages for the high-handed manner of dismissal, and damages for inconvenience caused by an incorrect Record of Employment.

Costs were awarded on a partial indemnity basis.

The Court of Appeal for Ontario heard an appeal and cross-appeal stemming from a wrongful dismissal judgment.

The appellant, Davide Giacomodonato, appealed the damages award, contending the trial judge erred by applying the second employment contract instead of the first.

The court dismissed his appeal, affirming the trial judge's finding of fresh consideration for the second contract, including a $40,000 payment and additional vacation time.

The respondents, PearTree Securities Inc. and PearTree Financial Services Ltd., cross-appealed the costs award.

Their motion for leave to appeal costs was dismissed, as the court found no error in principle in the trial judge's discretionary costs award, which was justified by the respondents' litigation conduct.

The appellant, Losani Homes (1998) Ltd., appealed a lower court decision that found their employment termination clauses void but upheld the validity of a fixed-term employment contract for the respondent, Kim Kopyl.

Losani Homes argued that the invalidity of the termination clauses, per *Waksdale*, should also void the fixed-term clause, converting the contract to one terminable on reasonable notice with a duty to mitigate.

The Court of Appeal dismissed the appeal, affirming that the invalidity of termination clauses does not affect a fixed-term clause, distinguishing *Waksdale* and reaffirming *Howard v. Benson Group Inc.* The Court held that the employee was entitled to compensation for the unexpired portion of the fixed term without a duty to mitigate.

The plaintiff, Sharon Gannon, brought a wrongful dismissal action against Kinsdale Carriers Limited following the closure of its trucking business due to the economic impact of the COVID-19 pandemic.

The court considered whether the plaintiff had advanced notice of the closure and, critically, whether she failed to mitigate her damages by refusing an offer of comparable employment.

The court found that the plaintiff had constructive notice of the impending closure and that she unreasonably rejected a comparable job offer from Zehr Transport.

Consequently, the plaintiff was not entitled to reasonable notice damages.

The plaintiff, a former General Manager, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant employer's counterclaim for damages related to alleged misconduct and breach of contract.

The court found that the plaintiff's statements in his statement of claim, which formed the basis of the motion, did not relate to a matter of public interest, as the dispute was purely private.

Although the counterclaim was found to arise from the plaintiff's expression, the court determined that the public interest in allowing the counterclaim to proceed outweighed the public interest in protecting the expression, given the private nature of the dispute and the substantial merit of the counterclaim.

The motion was dismissed.

IBM Canada Inc. appealed a summary judgment in a wrongful dismissal claim, challenging the 26-month reasonable notice period and the award of damages for Restricted Stock Units (RSUs).

The Court of Appeal dismissed the appeal, affirming that non-transferrable skills and the COVID-19 pandemic constituted exceptional circumstances justifying a notice period exceeding 24 months.

The court also upheld the RSU damages, finding the termination clause ambiguous and thus ineffective in limiting common law rights.

The plaintiff, an internationally trained physician employed by a pain management clinic, was terminated after a complaint involving him was made to the College of Physicians and Surgeons of Ontario (CPSO).

The plaintiff sued for wrongful dismissal, and the defendant asserted termination for cause based on evidence from the CPSO.

The plaintiff moved to strike portions of the statement of defence, arguing they contravened the Rules of Civil Procedure and s. 36 of the Regulated Health Professions Act, 1991 (RHPA).

The court partially granted the motion, striking references to evidence provided by the CPSO, as such documents are inadmissible in civil proceedings under s. 36(3) of the RHPA.

However, the court allowed the defendant leave to amend its defence.

Costs were fixed due to mixed success.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

The appellant, Knights of Columbus, brought a motion to file a five-page reply factum in an appeal concerning the dismissal of their motion to stay an action in favour of arbitration.

The respondent, Neil Goberdhan, did not oppose the motion but sought conditions, including permission to file a sur-reply factum.

The motion judge dismissed the request for a reply factum, emphasizing that the Rules of Civil Procedure do not generally provide for such filings in civil appeals, except for leave to appeal motions, and that oral argument is the appropriate stage to clarify issues.

The court found the case was not exceptional enough to justify a reply factum and dismissed the motion without costs.

The appellant, Guestlogix Inc., appealed a judgment that awarded the respondent, Marina Antchipalovskaia, twelve months' common law notice for wrongful dismissal.

The core issue was whether the motion judge erred in treating the respondent's employment as continuous from 2011 to 2019, despite a termination and re-hiring in 2016 during Companies’ Creditors Arrangement Act (CCAA) proceedings, which included a court-ordered release of prior claims.

The Court of Appeal found that the motion judge erred by not giving effect to the 2016 termination and the CCAA release.

However, the court also held that the respondent's prior five years of experience still provided a benefit to the appellant and should be considered in determining the notice period.

The Court of Appeal substituted the twelve-month notice period with a seven-month notice period, recognizing both the effect of the CCAA release and the value of the respondent's previous service.

The plaintiff, Joseph Miller, brought an action against his former employer, Ontario Potato Distribution Inc., for constructive or wrongful dismissal, alleging a hostile work environment due to a threatening incident.

The defendant contended the plaintiff voluntarily resigned.

The court, applying principles of credibility and valid resignation, found the plaintiff failed to prove the alleged incident or the defendant's involvement, concluding the resignation was voluntary.

Consequently, the action for wrongful dismissal was dismissed.

The court also discussed, in obiter, the appropriate notice period and the contentious issue of CERB payment deductibility from damages.

Nylene Canada Inc. appealed a wrongful dismissal damage award, arguing the trial judge erred in calculating the reasonable notice period by including pre-retirement service and by exceeding a 24-month maximum.

The Court of Appeal affirmed the trial judge's findings that the "retirement/re-hiring" was solely for pension access and did not constitute a break in service.

The court also upheld the 26-month notice period, finding it justified by the employee's unique circumstances, including long tenure, specialized skills, age, and difficulty finding new employment.

The appeal was dismissed.

In a wrongful dismissal claim, the defendant sought an adjournment of a scheduled 3-day summary trial, citing busyness and inability to adhere to a court-ordered timetable for document delivery.

The plaintiff opposed the adjournment.

The court denied the defendant's request, emphasizing that fixed trial dates are serious and require exceptional circumstances for adjournment, which were not present.

The court ordered the defendant to deliver its affidavit of documents promptly and for the trial to proceed as scheduled.

The plaintiff, Mary Ann Pepper, brought a Rule 76 Simplified Procedure trial claiming damages for wrongful dismissal, breach of implied covenants, and damages under the Occupational Health and Safety Act and Human Rights Code, alleging constructive dismissal or discrimination based on mental health.

The defendant, Jeff Lamb, argued the plaintiff resigned after refusing a reasonable accommodation.

The court found the plaintiff was not a reliable historian and that the accommodation offered by the defendant was reasonable.

The court concluded that the plaintiff had resigned and dismissed the action.

This case involved two applications heard together, stemming from a share purchase transaction.

Sudhir Thomas, as Seller Representative, sought the release of an indemnity escrow account.

Accenture Inc. brought a cross-application seeking a declaration that Thomas was responsible to indemnify Accenture for potential damages from a wrongful dismissal claim by Tania Prsa, to be paid from the escrow.

A mini-trial was conducted to determine the characterization of "bonus" payments made to Prsa (as employment income or shareholder profit distributions) and her entitlement to unreimbursed business expenses.

The court found that the "bonus" payments were shareholder profit distributions, not employment compensation, and that Prsa's expense claims were barred by a comprehensive release clause in the Share Purchase Agreement.

Consequently, the Indemnity Escrow Account was ordered released to the Seller Representative.

This decision addresses the costs of a wrongful dismissal action following a successful summary judgment motion where the plaintiff was awarded five months' notice.

The plaintiff sought partial indemnity costs of $47,519.40, while the defendant sought costs related to abandoned claims for punitive, aggravated, moral, and Human Rights Code damages.

The court awarded the plaintiff $22,000 in all-inclusive costs, finding that while the recovery was within Small Claims Court limits, commencing the action in Superior Court was initially appropriate due to the complexity of claims and defences.

The court declined to make a cross-award for costs related to abandoned claims, emphasizing that abandoning claims can be a reasonable litigation step and that proportionality and fairness are key considerations in costs awards.

This was a pleadings motion in a wrongful dismissal and libel action where the defendant, Yves Besner, sought to strike portions of the plaintiff's reply.

The defendant argued that the impugned paragraphs, which introduced details about the plaintiff's prior employment with Besner's former company and its bankruptcy, were irrelevant, unresponsive to the statement of defence, and contravened Rules 25.11 and 25.08 of the Rules of Civil Procedure.

The court found that the allegations were indeed irrelevant to the claims, not responsive to the defence, and improperly attempted to raise new grounds of claim in a reply rather than through an amendment to the statement of claim as required by Rule 25.06(5).

The court also noted that allowing such pleadings would unnecessarily expand the scope and cost of litigation and found them to be scandalous.

The motion to strike was granted.

The plaintiff, Sarah Nahum, was terminated without cause by the defendant, Honeycomb Hospitality Inc., after four and a half months of employment while five months pregnant.

On a summary judgment motion, the court addressed the reasonable notice period, specifically considering the impact of pregnancy on its calculation.

The court found pregnancy to be a Bardal-type factor affecting employability and awarded the plaintiff five months' notice, resulting in damages of $34,194.87.

This decision addresses the calculation of damages for wrongful dismissal and the award of costs following a successful summary judgment motion.

The court determined the final damages amount, excluding cell phone and internet costs from the notice period compensation.

It also awarded costs on a partial indemnity basis to the date of the Rule 49 offer and substantial indemnity thereafter, finding the plaintiff's offer more favourable than the judgment.

The appellant, an employee, appealed a motion judge's order striking parts of his statement of claim in a wrongful dismissal action, which included claims against corporate directors for unpaid vacation pay under the Employment Standards Act, 2000 (ESA) and the Business Corporations Act (OBCA), and for oppression under the OBCA.

The Court of Appeal upheld the striking of the ESA claim without leave to amend, finding the statutory preconditions were not met.

It also upheld the striking of the OBCA oppression claim with leave to amend, noting insufficient pleading of reasonable expectations.

However, the Court set aside the striking of the OBCA s. 131 claim for unpaid vacation pay without leave to amend, finding material facts were pleaded, and allowed it to proceed with amendment.

It also set aside the striking of certain paragraphs (14-23) related to the reprisal claim and varied the striking of paragraph 40, only removing irrelevant allegations.

The original costs award against the appellant was reduced to reflect his partial success on appeal.