P. Christopher Lloyd

The employer appealed a summary judgment awarding the plaintiff damages based on a six-month notice period for wrongful dismissal.

The Divisional Court upheld the summary judgment, finding no material facts in dispute regarding the notice period or mitigation efforts.

However, the court reduced the damages by $2,800 due to a calculation error regarding benefits.

The court also granted leave to appeal costs and increased the plaintiff's costs award to $18,000, finding the motion judge erred by failing to apply the cost consequences of Rule 49 after the plaintiff made a favourable offer to settle.

Following the release of reasons for judgment in a wrongful dismissal appeal, the appellant made further written submissions arguing that his damages award of $286,000 should not be subject to the duty to mitigate.

The Court of Appeal agreed, finding that a clause in the employment contract requiring a lump-sum payment shortly after termination amounted to a waiver by the employer of any obligation on the part of the employee to mitigate.

The judgment was amended to award the appellant damages equal to two years' salary without a duty to mitigate, and costs were fixed on a substantial indemnity basis.

The appellant was employed by the respondent for 17 years and had an employment contract providing for two years' salary upon termination.

The respondent attempted to unilaterally amend this provision to a maximum of 30 weeks' pay, giving two years' notice of the change.

The appellant explicitly rejected the new term but continued to work.

After two years, the respondent informed the appellant that the new provision was in effect and that he had no job if he refused to accept it.

The Court of Appeal held that the respondent's actions constituted a termination.

Because the respondent permitted the appellant to continue working despite his clear rejection of the new terms, the respondent was deemed to have acquiesced to the original contract.

The appellant was awarded damages based on the original two-year termination provision, less mitigated earnings.

The appellants appealed the judgment of the Superior Court of Justice, arguing the trial judge erred in refusing to re-open the trial and in interpreting the contract.

The Court of Appeal found no error in the trial judge's exercise of discretion or interpretation of the contract.

The appeal was dismissed with costs fixed at $3,500.

The plaintiffs engaged the defendant as an independent contractor to provide systems engineering services to their clients.

The defendant subsequently went to work directly for one of the clients.

The plaintiffs sued for breach of fiduciary duty and breach of confidence.

After the trial, the trial judge raised new theories of liability on her own motion—duty of good faith, unconscionability, and implied contractual terms—and found the defendant liable on those unpleaded bases while dismissing the pleaded claims.

The Court of Appeal allowed the appeal, holding that it is fundamentally unfair to find liability on theories that were never pleaded and not subjected to the adversarial process.

The cross-appeal regarding fiduciary duty and breach of confidence was dismissed.