Jennifer Dolman

Following a finding of wrongful dismissal on summary judgment, the court assessed damages for a 48-year-old managerial employee with 24 years of service.

The court awarded 22 months' pay in lieu of notice, along with compensation for lost medical, dental, and pension benefits.

The plaintiff's claim for lost bonuses was dismissed due to a lack of evidence regarding past payments.

The court also awarded $40,000 in aggravated damages, finding the employer was unduly insensitive to the plaintiff's known psychological distress leading up to and during the dismissal.

IBM Canada Ltd. appealed a summary judgment order that dismissed its motion for summary judgment and granted summary judgment to its former employee, Vinay Nagpal, for wrongful dismissal.

IBM argued that Nagpal had resigned, abandoned his position, or that his employment contract was frustrated.

The Court of Appeal dismissed IBM's appeal, upholding the motion judge's findings that Nagpal did not resign or abandon his employment, and the contract was not frustrated.

The court also affirmed that the Short-Term Disability Policy's presumption of resignation was rebuttable by other evidence.

The issue of damages was remitted to the motion judge.

The court provided directions for quantifying damages following a summary judgment that found the plaintiff wrongfully dismissed.

Despite a pending appeal by the defendant, the court ordered the plaintiff to submit damages evidence, with the defendant to respond only if the appeal is dismissed.

The court rejected the defendant's request for a full trial on moral damages, emphasizing that the summary judgment process should continue for damages quantification, including the potential for oral evidence under Rule 20.04(2.1) and (2.2) if necessary for a fair adjudication.

A franchisee, sued by a bank, issued a third-party claim against the franchisor seeking rescission of the franchise agreement for non-disclosure under the Arthur Wishart Act.

The franchisor argued that the third-party claim did not constitute proper notice of rescission.

The motion judge agreed, ruling that a pleading could not serve as the required notice.

The lawyer who drafted the third-party claim appealed.

The Court of Appeal allowed the appeal, holding that a pleading, specifically a third-party claim, could constitute sufficient written notice of rescission under s. 6 of the Arthur Wishart Act.

The court emphasized a generous interpretation of the remedial legislation, prioritizing substance over form, and clarified that the purpose of the notice is to advise the franchisor of rescission, not to act as a precondition to litigation.

The defendant employer brought a motion for summary judgment to dismiss a wrongful dismissal action, arguing the plaintiff employee had resigned, abandoned his employment, or that the contract was frustrated due to his illness.

The plaintiff had taken a medical leave for depression and anxiety, and his short-term disability benefits were terminated by the plan administrator.

When the plaintiff refused to return to work on medical advice but also did not appeal the benefits denial, the employer deemed him to have resigned pursuant to its policy.

The court dismissed the employer's motion and instead granted summary judgment for the plaintiff, finding no clear and unequivocal resignation, no abandonment, and no frustration of contract, concluding the plaintiff was wrongfully dismissed.

This motion, brought under Rule 21.01(1)(a) of the Rules of Civil Procedure, sought a determination of a question of law: whether a claim in a pleading (specifically, a Third Party Claim) constitutes proper notice under section 6(3) of the Arthur Wishart Act (Franchise Disclosure) 2000.

The franchisee (Shearer) and franchisor (The Works) argued that the pleading was not proper notice, while the franchisee's former lawyer (Msi), who was being sued for negligence for failing to provide proper notice, argued that it was.

The court found that a Rule 21 motion was appropriate and, following binding authority and legal principle, concluded that a Third Party Claim cannot constitute a proper notice of rescission under subsection 6(3) of the Wishart Act, as a pleading and a statutory notice serve distinct purposes and have different temporal and functional implications.

The representative plaintiff, a Tim Hortons franchisee, and the defendant franchisor sought approval of a settlement agreement in two companion class actions concerning the use of an Ad Fund and the formation of a franchisee association.

The motion also sought approval of class counsel fees and litigation funding agreement amounts.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, despite one objector's concerns.

The settlement included monetary payments for marketing initiatives, legal costs, and significant non-monetary benefits such as enhanced transparency, audit rights, and freedom for franchisees to negotiate contracts.

The court also approved the requested fees for the litigation funder and class counsel, deeming them reasonable given the overall settlement value.

The representative plaintiff in two companion class actions against the Tim Hortons franchisor sought approval of a settlement agreement and class counsel fees.

The settlement included a $10 million payment toward local marketing initiatives, $2 million for legal costs, and significant non-monetary benefits valued at over $25 million, including governance changes and the revocation of restrictive clauses.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it achieved access to justice, judicial economy, and behaviour modification.

The court also approved the fee requests for the litigation funder and class counsel, finding them to be within a zone of reasonableness.

The defendant/moving party, TDL Group Corp., brought a motion to strike the plaintiff's/responding party's Amended Statement of Claim.

The plaintiff, 6646107 Canada Inc., alleged breach of the original Franchise Agreement, breach of a subsequent oral "Renewal Agreement," and negligent/intentional misrepresentation regarding the non-renewal of its Tim Hortons franchise.

The court granted the motion in part, striking claims related to the breach of the original Franchise Agreement due to explicit non-renewal clauses and the absence of a free-standing duty of good faith.

However, the court dismissed the motion to strike claims concerning the oral Renewal Agreement and negligent/intentional misrepresentation, finding these issues involved mixed fact and law and were not plain and obvious to fail.

The plaintiff, a Tim Hortons franchisee, brought motions for certification of two class actions against the franchisor, The TDL Group Corp., for the purposes of a tentative settlement.

The first action concerned the use of the Ad Fund, and the second concerned the formation of a franchisee association.

The defendant consented to certification.

The court applied the criteria under section 5 of the Class Proceedings Act, 1992, noting that the requirements need not be as rigorously applied in a settlement context.

All five certification requirements were found to be met, including disclosure of a cause of action, identifiable classes (current and former franchisees), common issues, preferability of a class proceeding, and an adequate representative plaintiff with a litigation and notice plan.

The court ordered certification of both actions as class proceedings.

The plaintiffs, Tim Hortons franchisees, brought a motion for approval of a third-party litigation funding agreement with Galactic TH Litigation Funders LC in their proposed class action against the franchisor.

The court applied the multi-part test from Houle, finding the agreement necessary for access to justice, substantively meaningful, fair and reasonable, and protective of the defendant's interests.

The court also found the funder would not be overcompensated.

The funding agreement and budget were approved.

This costs endorsement followed two related motions where the defendants largely succeeded in striking claims under Rule 21, terminating claims against all defendants except The TDL Group.

The court awarded costs to the successful defendants, finding no reason to depart from the usual practice that the unsuccessful side pays.

Despite the plaintiffs' arguments that the hourly rates and overall costs requested were excessive, the court found them within the norm for large firm litigation given the magnitude of the claims.

The court exercised its discretion to slightly reduce the requested costs, awarding $44,000 to the defendants in the 152 Action and $40,000 to the defendants in the Walker Action, acknowledging that the defendants were not 100% successful in dismissing the actions without leave to amend.

This decision addresses a motion to strike various claims in two proposed class actions brought by Tim Hortons franchisees against the franchisor, The TDL Group Corp. (TDL), and related corporate and individual defendants.

The claims included breach of trust, fiduciary duties, oppression remedy under the Canada Business Corporations Act (CBCA) and British Columbia Business Corporations Act (BCBCA), conversion, breach of contract (including implied duty of good faith), and statutory duties under the Arthur Wishart Act (fair dealing and right of association).

The court struck out most claims against the non-TDL defendants without leave to amend, finding a lack of material facts to support them or privity of contract.

Several claims against TDL, including breach of trust, fiduciary duties, CBCA oppression, and conversion, were also struck without leave.

Claims for breach of contract (including good faith) and statutory duty of fair dealing (s. 3 Wishart Act) against TDL were struck with leave to amend for particulars.

The claim for breach of the right of association (s. 4 Wishart Act) against TDL survived.

The court deferred the issue of declaratory relief and ordered the plaintiffs to serve amended statements of claim within 30 days, failing which the pleadings would be struck in their entirety.

An employee challenged the enforceability of a termination clause in his employment contract with IBM.

The motion judge found the clause ambiguous and unenforceable, holding that it did not clearly exclude the employee's entitlement to damages at common law.

The Court of Appeal reversed, holding that when read as a whole, the termination clause was unambiguous and clearly excluded common law damages.

The clause provided for notice or pay in lieu calculated according to a formula, with a failsafe provision ensuring compliance with the Employment Standards Act.

The court found no violation of the ESA and awarded costs to IBM.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the termination clause in the employment contract was enforceable.

The plaintiff argued the clause violated the Employment Standards Act, failed to rebut the common law presumption of reasonable notice, and was breached by the employer.

The court found the termination clause was ambiguous regarding whether the exclusion of common law notice applied to the failsafe provision.

Resolving the ambiguity in favour of the employee, the court dismissed the motion and ordered the issues of reasonable notice and damages to proceed to trial.

Following summary judgment dismissing the plaintiff’s action and granting judgment to the defendant, the court determined costs of the action.

The successful defendant sought $100,000 in costs plus disbursements despite claiming substantially higher partial and full indemnity costs.

The court applied Rule 57.01 of the Rules of Civil Procedure and emphasized proportionality, fairness, and access to justice.

The court found the defendant’s claimed hourly rates and time dockets excessive relative to the moderate complexity of the case and the simplified procedure under which it proceeded.

Costs were fixed in a reduced all-inclusive amount payable by the plaintiff.

The plaintiff brought a wrongful dismissal action seeking damages after his employment ended following an extended absence related to claimed depression and anxiety.

The employer moved for summary judgment arguing the employee abandoned or voluntarily resigned by failing to comply with the employer’s short‑term disability plan requirements, failing to provide required medical documentation, relocating provinces without notice, and refusing to return to work despite multiple warnings.

The court held that abandonment is assessed objectively and that the employee’s prolonged absence, failure to follow disability plan procedures, and relocation demonstrated a clear intention not to be bound by the employment contract.

The court rejected arguments that the employer had an independent duty to accommodate beyond the disability plan in the absence of proper medical evidence.

Summary judgment was granted dismissing the wrongful dismissal claim.

The plaintiffs, franchisees of Shoppers Drug Mart, brought a proposed class action alleging breach of contract, breach of the duty of good faith, unjust enrichment, and breach of fiduciary duty regarding the franchisor's retention of rebates and professional allowances, and its practices regarding cost recovery fees, budgeting, and inventory.

The defendants brought a Rule 21 motion to strike the claims for disclosing no reasonable cause of action.

The court struck the claims for rebates, breach of fiduciary duty, interference with association, and duty of disclosure, finding them untenable based on the clear language of the franchise agreements.

However, the court allowed the claims regarding professional allowances, cost recovery fees, budgeting practices, and inventory practices to proceed, finding it was not plain and obvious they would fail.