Kimberly Sebag

The plaintiff, a building manager, was terminated when the building's property management contract changed hands.

The new service provider, Duka, did not retain him.

On a motion for summary judgment, the court had to determine whether the old provider (Crossbridge) or the new provider (Duka) was liable for common law notice under s. 75 of the Employment Standards Act.

The court held that the new provider is responsible for common law notice, as this interpretation aligns with the legislative intent to stabilize employment in the building services sector.

The court awarded the plaintiff 10 months' notice, plus 10% for lost benefits, rejecting the defendants' argument that the plaintiff failed to mitigate his damages.

This decision addresses the issue of costs following a summary judgment in a wrongful dismissal case.

While the plaintiff obtained judgment, the awarded damages were a small fraction of the claim, and the defence was largely successful in limiting the award.

The court noted that both parties claimed victory and sought costs.

The judge found that both sides pursued claims or maintained defences beyond a reasonable prospect of success, hindering constructive settlement discussions and adding to litigation expense.

Given the divided success, the court declined to award costs to either party.

On a summary judgment motion in a wrongful dismissal action, the court held that a 56-year-old sales employee with just under 28 months of service was entitled to three months' reasonable notice.

Applying the Bardal framework, the court considered the employee's age, the relative brevity of service, and the uncertain job market at the outset of the COVID-19 pandemic, but declined to extend notice to six months.

The court further held that CERB payments were not deductible from damages on the facts.

The employee was entitled to damages reflecting base salary, car allowance, and commissions on prior sales that would have become earned and payable during the notice period, together with certain additional benefits to be quantified if not agreed.