Andrew Donaldson

The appellant appealed an order varying a default judgment to include a declaration that the judgment debt survives his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The appellant argued the motion judge erred by admitting fresh evidence and finding the pleadings sufficiently particularized a claim for misappropriation while acting in a fiduciary capacity.

The Court of Appeal dismissed the appeal, holding that fresh evidence is admissible on a Rule 59.06(2) motion to vary, and the pleadings were sufficient to ground the claim.

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.