David McNevin

On an application for judicial review, a preliminary issue arose regarding the admissibility of two affidavits filed by the applicants containing evidence that was not before the Ontario Labour Relations Board.

The respondents objected to the admissibility of the affidavits, but no formal motion to strike or for leave to introduce the evidence had been brought.

The Divisional Court held that the onus is on the party seeking to file fresh evidence to bring a motion for leave in advance of the application.

The court adjourned the matter to permit the applicants to bring such a motion.

The employer sought judicial interpretation of an indemnity clause in an employment contract providing for two years’ salary, bonuses, and benefits if the company decided to terminate the employee within four years of signing.

The court held that the indemnity obligation was triggered when the decision to terminate was made, not when the termination was communicated.

Because the employer decided to terminate within the four‑year period but delayed communicating the decision until after the period expired, the contractual indemnity applied.

Relying on appellate authority, the court further held that where a termination clause stipulates compensation and is silent on mitigation, the employee has no duty to mitigate.

The employee was therefore entitled to the contractual lump sum, subject only to credit for salary continuation payments already made.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent employee.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the employer unilaterally and fundamentally changed the terms of employment.

The Court also agreed it was objectively unreasonable to expect the employee to return to work for the same small employer after losing faith in them.

The damages awarded were upheld based on the Bardal factors, considering the employee's age, length of service, position, and difficulty finding other work.

The appellant appealed a trial judgment finding it owed the respondent $22,987.50 based on unpaid invoices.

The appellant conceded the amount was owed and did not appeal the dismissal of its counterclaim.

The Court of Appeal held that while there was uncontradicted evidence a certified cheque was tendered, this did not undermine the conclusion that the full amount was owing based on the invoices.

The appeal was dismissed with costs.