Kyle Van Schie

The plaintiff, Ottawa-Carleton Mortgage Inc. (OCMI), brought a motion for summary judgment against the defendants for default under a mortgage.

The court found that the defendants had defaulted on their mortgage payments, failed to remedy the default, and did not provide any evidence in response to the motion.

OCMI was granted summary judgment for damages, vacant possession, and leave to issue a writ of possession.

The claims for pre-judgment interest, post-judgment interest, and costs were adjourned for further determination.

This endorsement addresses a dispute over costs related to a motion to strike that did not proceed.

The plaintiff argued the motion was abandoned, while the defendants claimed it was rendered moot by the plaintiff's amendments.

The court found that the defendants' motion was not made moot by the amendments and that the defendants had strategically abandoned it.

The court awarded the plaintiff costs, noting the defendants' decision to pursue costs against an individual who had lost employment.

The appellant employer appealed a trial judgment awarding the respondent employee six months' pay in lieu of common law notice following a without-cause termination.

The trial judge had found the employment agreement's termination provisions void because the 'for cause' clause violated the Employment Standards Act by contracting out of the statutory standard for wilful misconduct.

The Divisional Court dismissed the appeal, holding that the trial judge correctly applied the Waksdale framework to invalidate the entire termination clause and made no palpable or overriding error in assessing the common law notice period using the Bardal factors.

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.

The employer appealed a decision finding its employment contract's termination clause void for breaching the Employment Standards Act, 2000.

The application judge had awarded the employee ten months' common law notice.

The Divisional Court dismissed the appeal, upholding the finding that the 'for cause' provision illegally contracted out of the ESA by applying a common law 'just cause' standard rather than the statutory 'wilful misconduct' standard.

The Court also found no error in the application judge's assessment of the ten-month notice period, which appropriately considered the Bardal factors and the economic uncertainty at the onset of the COVID-19 pandemic.

Following a successful application for wrongful dismissal where the applicant was awarded ten months' notice, the parties could not agree on costs.

The applicant sought $74,524.59 on a substantial indemnity basis, while the respondent argued for partial indemnity costs of approximately $30,000.

The court found that neither party's offers to settle triggered Rule 49.10 and that substantial indemnity costs were not warranted.

The court awarded the applicant costs on a partial indemnity basis for the application, a motion to amend, and an abandoned motion to compel, fixing the total all-inclusive costs at $47,000.

The applicant, a 36-year-old controller with six years of service, was terminated without cause.

The employer paid her statutory entitlements under the Employment Standards Act (ESA) and relied on the termination clause in her employment contract to deny common law notice.

The applicant brought an application arguing the termination clause was void.

The court found that the 'for cause' provision violated the ESA by allowing termination without notice for common law cause, which is a lower standard than the ESA's 'willful misconduct' standard.

Applying Waksdale, the court held that this rendered the entire termination clause void.

The court also found the 'without cause' provision independently violated the ESA by excluding benefits and bonuses during the notice period.

The court awarded the applicant 10 months of common law notice, less mitigation earnings and statutory amounts already paid.

The applicants, minority shareholders in a family-owned wholesale grocery business, brought an oppression application against the majority shareholders and the company.

The dispute arose over succession planning, with the majority seeking to sell the company's assets to a third-generation family member, which the applicants opposed.

The court found that while the applicants did not have a reasonable expectation of passing their shares to their sons, the proposed asset sale and certain workplace actions were oppressive.

The court ordered the sale of the applicants' shares at fair market value to the proposed purchaser or the company.

On appeal from a summary judgment order in a wrongful dismissal action, the Court of Appeal considered whether an employee's pre-acquisition service could be waived for purposes of calculating statutory termination and severance pay under the Employment Standards Act.

The employee was hired in 1980 by Bakermet, became a one-third owner, and received $17.16 million when the company was sold to ArcelorMittal in 2008.

He continued employment under successive fixed-term agreements until termination in 2015 at age 58.

The motion judge found the employee had waived pre-2008 service and was limited to six months' notice under the 2014 employment agreement.

The Court of Appeal reversed, holding that statutory entitlements cannot be waived, that the termination clause violated the Employment Standards Act, and that the employee was employed on an indefinite basis despite fixed-term language.

The court also rejected the employer's counterclaim for breach of restrictive covenants and fiduciary duties.

A tenant operating a dry cleaning business appealed a summary judgment dismissing his claim for wrongful termination of his commercial lease.

The landlord had terminated the tenancy based on the tenant's failure to complete a government-approved training course in the management of contaminants and wastes, as required by regulation and the lease.

The Court of Appeal found that the landlord failed to comply with the strict notice requirements under the Commercial Tenancies Act by not identifying the specific breach in the termination notice.

The court also found that the tenant had presented uncontradicted evidence that the required course was unavailable and that the Ministry of the Environment had inspected the premises, suggesting the tenant may have satisfied the regulatory requirements through alternative means.

The appeal was allowed, the summary judgment was set aside, and the matter was remitted for assessment of damages.

The plaintiff, Steven Kerzner, brought a motion for summary judgment in a wrongful dismissal action against American Iron & Metal Company Inc. (AIM).

Kerzner sought common law notice based on 35 years of service, arguing that termination provisions and restrictive covenants in his fixed-term employment contracts were invalid and unenforceable.

AIM counterclaimed for breach of non-solicitation and non-competition clauses and fiduciary duties.

The court found that the termination provisions were valid based on a 2008 release limiting service to 7 years for ESA purposes, but the non-competition and non-solicitation clauses were unreasonable and unenforceable given the fixed-term nature of the contract and broad geographic scope.

The court dismissed AIM's counterclaim for breach of restrictive covenants and fiduciary duty, and held that Kerzner was entitled to the contractual termination payment without a duty to mitigate.

An application for wrongful dismissal where the enforceability of a termination clause limiting notice to Employment Standards Act minimums was at issue, along with the effect of an erroneous initial termination and subsequent re-hiring.

The court found the termination clause enforceable, supported by consideration.

It ruled that the initial termination was effective, but the employee's immediate re-hiring occurred under the same contractual terms.

The applicant was awarded seven weeks' notice under the ESA, plus benefits and mobile phone costs, significantly less than the nine months' common law notice sought.

The plaintiff tenant brought an action against the defendant landlord for wrongful termination of a commercial lease for a dry cleaning business.

The landlord brought a motion for summary judgment to dismiss the plaintiff's claim and for judgment on its counterclaim for damages.

The court found that the tenant was on a month-to-month tenancy and had breached the lease by failing to comply with regulations governing dry cleaning businesses.

The court held that the lease was lawfully terminated, dismissed the plaintiff's claim, and granted the landlord's counterclaim for damages, reducing the claim for rent arrears.