Alexandria Chun

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

This appeal concerned the scope of common employer liability and director liability for unpaid wages under the Business Corporations Act.

The motion judge had found Tornado Medical Systems, Inc. liable as a common employer and Jae Kim liable as a director for unpaid wages and vacation pay.

The Court of Appeal allowed Tornado's appeal, finding that the motion judge erred in her articulation and application of the common employer doctrine by effectively finding liability based on corporate affiliation rather than an intention to create an employment relationship.

The Court dismissed Dr. Kim's appeal, but varied the judgment to make his director liability conditional on the statutory requirements of execution against the corporation being returned unsatisfied or corporate insolvency.

The appellant appealed a motion judge's stay of crossclaims against its co-defendant, ABB Inc., arising from a defective tap changer.

The motion judge stayed the crossclaims based on the 'Orgalime' standard terms and conditions, which included an arbitration clause and excluded liability for consequential loss.

The appellant argued that ABB failed to specifically bring these clauses to its attention, relying on Tilden Rent-a-Car.

The Court of Appeal dismissed the appeal, finding that the appellant was a sophisticated corporate consumer and could reasonably be expected to have reviewed the terms referenced in the contractual documents.