Kevin Fox

This costs endorsement followed the Court of Appeal's reasons dated November 1, 2024, where parties were invited to make submissions regarding costs if they could not agree.

After reviewing the submissions, the Court ordered the respondent, Matthew Preston, to pay the appellant, Cervus Equipment Corporation, all-inclusive costs of $30,000 for the motion.

This appeal concerned the interpretation of a release and minutes of settlement executed by an employee after termination.

The core issue was whether the settlement documents released the employee's claim for damages related to vested stock units.

The motion judge found the vested stock units were not released, concluding the settlement made little economic sense otherwise.

The Court of Appeal found the motion judge erred in law by allowing the factual matrix to overwhelm the clear and broad language of the settlement documents, misapplying the guidance on narrow construction of releases, and improperly evaluating the economic benefits of the settlement.

The appeal was allowed, setting aside the judgment for the employee and granting judgment in favour of the employer, finding the vested stock units claim was released.

The plaintiff was successful in defending a motion to stay the action brought by the defendants on the basis of jurisdiction simpliciter and forum non conveniens.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $16,533.44 plus $1,800.94 for costs submissions.

The defendants argued for no costs or a maximum of $10,023.92.

The court rejected the defendants' argument for no costs, adjusted the plaintiff's counsel's partial indemnity rate to 60% of the full indemnity rate, and awarded the plaintiff all-inclusive costs of $12,000.00.

The plaintiff commenced an action in Ontario for wrongful dismissal and unpaid wages against the corporate defendants and their director.

The defendants, based in British Columbia, brought a motion to stay the action, arguing that the Ontario court lacked jurisdiction simpliciter or, alternatively, that British Columbia was the more appropriate forum (forum non conveniens).

The court dismissed the motion, finding that it had jurisdiction because the employment contract was formed in Ontario, where the plaintiff worked exclusively.

The court further held that the defendants failed to demonstrate that British Columbia was a clearly more appropriate forum, noting that the plaintiff's choice of forum was fair and efficient.

The defendant moved to dismiss the plaintiff's wrongful dismissal action, arguing it was statute-barred under sections 97(2) and 97(4) of the Employment Standards Act, 2000 (ESA) because the plaintiff had initially filed an ESA claim.

The plaintiff opposed, asserting "special circumstances" due to inadequate legal advice from his paralegal, leading him to withdraw the ESA claim shortly after the statutory two-week period.

The court exercised its inherent jurisdiction, finding special circumstances existed, including the plaintiff's lack of proper legal advice, prompt withdrawal of the ESA claim upon receiving proper counsel, lack of prejudice to the defendant, and no evidence of forum shopping or bad faith.

The defendant's motion was dismissed, allowing the plaintiff's civil action to proceed.

The appellants appealed a wrongful dismissal judgment.

The Court of Appeal upheld the trial judge's finding of fact that there was no consideration.

However, the Court found the trial judge erred regarding mitigation, as ongoing litigation alone did not justify the respondent's refusal to accept a recall to work, absent evidence of a poisoned workplace.

The Court declined to consider promissory estoppel as it was not raised at trial.

The appeal was allowed in part, reducing the notice period to eight months, with costs of the appeal awarded to the respondent.

An employee brought an action for wrongful dismissal claiming entitlement to common law reasonable notice after termination following more than seventeen years of service.

The employer relied on a termination clause in an earlier employment agreement entered into with a predecessor company that provided only Employment Standards Act minimum notice plus four additional weeks’ salary.

The court held that the employment contract survived the corporate amalgamation and was binding on the successor company.

The employee continued working for nearly a decade after the acquisition, accepted modifications to certain terms, and never communicated repudiation of the contract.

The termination provisions of the original employment agreement therefore governed the employment relationship.

The appellant employer appealed a trial judgment awarding the respondent employee damages for wrongful dismissal.

The trial judge had found that while the employee's behaviour, including racial slurs and breach of email policy, was inappropriate, it did not amount to just cause for summary dismissal without a clear warning.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's application of the McKinley test for wrongful dismissal.

The applicant, a health care aide, was discharged for allegedly leaving work early and having a co-worker swipe her time card.

The union investigated the grievance but ultimately decided not to proceed to arbitration, leading the applicant to file a duty of fair representation complaint under section 74 of the Labour Relations Act.

The Board found that while the union's investigation was deficient in several respects, including a misunderstanding of how the card swipe system worked, these errors amounted to honest mistakes rather than gross negligence.

The Board concluded that the union's decision was not arbitrary, discriminatory, or in bad faith, and dismissed the application.

The employer applied for a review of an Employment Standards Officer's Order to Pay, which had found that the employee was terminated because of her pregnancy.

The employee was terminated at the end of her three-month probationary period.

The employer argued the termination was due to poor work performance, specifically typographical errors, and that the decision was made before it learned of the pregnancy.

The Board found the employer's witnesses credible and accepted documentary evidence showing the termination decision and paperwork were initiated days before the employee disclosed her pregnancy.

The Board concluded the termination was not a reprisal for pregnancy and rescinded the Order to Pay.