Kristin Taylor

This is a costs endorsement on appeal from a Superior Court judgment dated September 26, 2017.

The appellants challenged the lower court decision, and the Court of Appeal addressed the issue of costs for the motion below.

The parties agreed that the costs determination should be remitted back to the trial judge for decision at a later time, pending clarification of the value of the claims and the effect of any Rule 49 settlement offers.

This appeal concerns the closure of a manufacturing plant and the resulting mass termination of employees.

The central issues relate to the timing of Form 1 notice requirements under the Employment Standards Act, 2000, the effect of overtime hours on working notice, and the validity of termination notices for employees retained beyond the statutory 13-week temporary work period.

The employer gave employees over one year's notice of termination but failed to file the required Form 1 notice with the director until more than a year later.

The motion judge found the employer's entire notice period invalid.

The Court of Appeal allowed the appeal in part, holding that the Form 1 notice requirement arises only at the beginning of the statutory minimum notice period, not when the employer gives notice to employees.

However, the court upheld findings regarding overtime worked in violation of the ESA and the requirement for fresh notice when temporary work exceeds 13 weeks.

The plaintiffs, former employees of CTS, brought a summary judgment motion in a class proceeding arising from a mass termination following a plant closure.

CTS provided employees with approximately 12 months' working notice but did not file the required Form 1 notice with the Director of Employment Standards until the final 8 weeks.

The court held that the ESA requires Form 1 notice on the first day of the notice period provided by the employer, not just the statutory minimum period.

Because CTS failed to provide timely Form 1 notice, the working notice provided prior to the Form 1 filing was deemed void for all purposes, depriving CTS of credit for that period.

The court also found that requiring employees to work excessive overtime during the notice period negated the working notice for those weeks.

However, the court dismissed the claim for bad faith damages.

The applicant union sought judicial review of an arbitrator's decision denying a grievance over the termination of retiree benefits following a plant closure.

The arbitrator found that the employer had the right to terminate the benefits because the collective agreement incorporated an insurance master contract containing a minimum participation provision, which was no longer met.

The Divisional Court applied the reasonableness standard of review and concluded that the arbitrator's decision was defensible in respect of the facts and the law.

The application for judicial review was dismissed.

The employer appealed a Small Claims Court judgment awarding a former employee damages for an unpaid bonus.

The employee had resigned before the bonus payout date, and the employer relied on a policy posted on its intranet requiring active employment at the time of payout to be eligible.

The trial judge found the policy was not sufficiently drawn to the employee's attention.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding error in concluding the communication of the policy was insufficient.

The applicant filed a human rights application alleging discrimination and reprisal following his termination.

The respondent requested to dismiss the application on the basis that the applicant had previously signed a Memorandum of Settlement, with union advice, that included a full and final release of all claims in exchange for a $15,000 lump sum.

The applicant argued he signed the settlement under economic and psychological duress and without reading it.

The Tribunal found that the applicant had the capacity to understand the clear terms of the release, received sufficient consideration, and failed to establish that he was subjected to illegitimate pressure amounting to coercion of his will.

The application was dismissed as an abuse of process.

Following a successful summary judgment motion awarding the plaintiff 20.8 months' reasonable notice for wrongful dismissal, the plaintiff sought substantial indemnity costs of $35,000.

The defendant argued for $15,000 on a partial indemnity basis.

The court considered the plaintiff’s non-compliant offer to settle as a relevant factor under Rule 57.01 but held that the defendant’s conduct did not justify substantial indemnity costs.

The court also rejected using counsel’s unreduced notional hourly rate to inflate the award.

Costs were fixed at $25,000 inclusive of taxes and disbursements.

The applicant filed a human rights application alleging discrimination in employment based on disability and age.

The respondent requested that the application be deferred because an overlapping proceeding under the Employment Standards Act was scheduled to be heard by the Ontario Labour Relations Board.

The Tribunal found that there was an overlap in the facts between the two proceedings and deferred the application pending the issuance of the OLRB's decision.

The applicant, a bilingual Collection Agent, alleged she was subjected to racial discrimination, harassment, and a poisoned work environment by her manager and co-workers, which forced her to resign.

The Tribunal found that while there were personality clashes and the applicant felt bullied, there was no evidence to corroborate that any of the alleged harassment was racially based or connected to a Code-protected ground.

The application was dismissed.

The appellant appealed a motion judge's costs order, arguing that the respondent Lattice Engines Inc. should not have been awarded costs as its interests were identical to the respondent Scott's, and that the quantum of costs awarded to Scott was unreasonable.

The Divisional Court dismissed the appeal, finding that the respondents had distinct interests warranting separate representation and that the quantum of costs awarded to Scott was reasonable and not an error in principle.

The applicant failed to attend multiple scheduled hearing dates, citing health issues, but failed to provide the required medical documentation or clarification as directed by the Tribunal.

After confirming attendance for a subsequent hearing date and again failing to appear without providing details, the Tribunal dismissed the Application as an abuse of process.

The applicant, who suffers from Lupus, alleged discrimination with respect to employment because of disability.

She claimed she was subjected to harassing comments, denied accommodation, and terminated because of her disability.

The Tribunal dismissed the allegations of harassing comments and failure to accommodate.

However, the Tribunal found that the applicant's disability and related absenteeism were factors in the respondent's decision to terminate her during a restructuring process.

The Tribunal awarded $15,000 for injury to dignity, feelings, and self-respect, along with compensation for lost wages.

The applicants in three separate human rights applications against the same corporate respondent and overlapping individual respondents sought to have their applications consolidated.

The respondents opposed consolidation, arguing it would not avoid delay and raised concerns about potential collusion among the applicants.

The Tribunal applied the factors from Persaud and found that the applications shared significant common issues of fact and law, including allegations of a poisoned work environment and racial discrimination during a similar timeframe.

The Tribunal ordered the applications to be consolidated to ensure efficient use of resources and convenience for witnesses.

The applicant filed a human rights application alleging discrimination and harassment in employment on the basis of race, ancestry, place of origin, and ethnic origin.

Prior to filing their Responses, the respondents requested an order directing the applicant to provide further particulars regarding the allegations.

The Tribunal denied the request, finding that the application contained sufficient detail about the alleged facts and legal issues to enable the respondents to file a meaningful response, and that no exceptional circumstances justified ordering particulars at this preliminary stage.

The plaintiff, an investment advisor, was terminated without cause and commenced a wrongful dismissal action.

Four years later, he sought to amend his Statement of Claim to increase damages, alleging loss of clientele and moral damages due to the lack of working notice.

The Master refused the amendments, finding they constituted a new cause of action that was statute-barred under the Limitations Act, 2002.

The Divisional Court dismissed the appeal, affirming that there is no legal right to working notice and that the proposed claims for lost clientele and moral damages were untenable and statute-barred.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability.

Prior to filing the application, the applicant commenced a civil action in the Superior Court of Justice against the corporate respondent, alleging wrongful dismissal and failure to accommodate his disability.

The respondents requested that the application be dismissed pursuant to section 34(11) of the Human Rights Code, which prevents duplicate proceedings.

The Tribunal found that the civil action raised the same facts and issues as the application and sought remedies for the same alleged Code infringements.

Consequently, the application was barred by section 34(11) and dismissed.

The applicant appealed an Employment Standards Officer's refusal to issue an Order to Pay for unpaid wages and termination pay.

The applicant's wages were reduced by the employer, Provincial International Cranes, which the Board found constituted constructive dismissal.

The Board ordered Provincial to pay 8 weeks' termination pay.

However, the Board dismissed the claim for the wage differential during the period the applicant continued working at the reduced rate.

The Board also dismissed the claim against Konecranes Canada Inc., finding no evidence that it was a related employer under section 12 of the Employment Standards Act.

The applicant, a senior mechanical engineer, was terminated three weeks after commencing employment.

He alleged his termination was a reprisal for refusing to work on a solvent-based cleaning system due to chemical allergies, a right protected under section 43 of the Occupational Health and Safety Act.

The employer claimed the termination was solely due to the applicant's poor attitude and interpersonal conflicts with coworkers.

The Board found that while the applicant was difficult to work with, the termination was at least partially motivated by his legitimate work refusal.

The Board concluded the employer breached section 50(1) of the Act and awarded the applicant three months' pay as damages.

The applicant sought a review of an Employment Standards Officer's refusal to issue an order to pay under section 68 of the Employment Standards Act.

The applicant failed to attend the scheduled hearing.

After waiting the customary time, the Board convened the hearing in the presence of counsel for the responding parties.

As the applicant was absent without explanation and no evidence was presented to support the application, the Board dismissed the application for review.

The applicant union applied for certification to represent stagehands employed by the responding party at a seasonal outdoor concert venue.

The application was filed in February, during the venue's off-season, when no employees were actually performing bargaining unit work.

The responding parties brought a preliminary motion to dismiss the application on the basis that there were no employees in the bargaining unit on the application date.

The Board applied the bright line test from the theatrical and construction industries, holding that because employment in this industry is seasonal and transitory, individuals must be actually at work on the application date to be considered employees in the bargaining unit.

Since no employees were working on the application date, the application for certification was dismissed.