Stephen Bernofsky

The plaintiff brought a motion for summary judgment for constructive dismissal after being temporarily laid off due to the COVID-19 pandemic.

The court found that the plaintiff was an employee from the start of his tenure, despite initially being paid through a personal corporation.

The court also held that the employment contract signed mid-employment was void for lack of consideration.

The employer had no contractual right to lay off the plaintiff, resulting in a constructive dismissal.

The court awarded 15 months' reasonable notice and $25,000 in punitive damages due to the employer's failure to pay statutory minimums.

This decision addresses the calculation of damages for wrongful dismissal and the award of costs following a successful summary judgment motion.

The court determined the final damages amount, excluding cell phone and internet costs from the notice period compensation.

It also awarded costs on a partial indemnity basis to the date of the Rule 49 offer and substantial indemnity thereafter, finding the plaintiff's offer more favourable than the judgment.

The plaintiff, a senior executive, was terminated without cause after nearly four years of employment.

He brought a summary judgment motion for wrongful dismissal damages.

The court found the termination clause in his employment contract unenforceable because it had the potential to provide less than the minimum termination and severance pay required under the Canada Labour Code.

The court awarded eight months' pay in lieu of notice, finding the plaintiff held a significant managerial role.

The court also awarded damages for a discretionary bonus for 2017 and the notice period, as it was an integral part of his compensation, but dismissed claims for unused vacation and statutory holiday pay.

The applicant was terminated without cause and sought a determination of his rights under his employment contract.

The contract stipulated a fixed notice period but was silent on mitigation.

The court held that the applicant had no duty to mitigate his damages, as the fixed notice provision displaced the common law.

Applying the contra proferentem rule, the court resolved an ambiguity in the termination clause to award 11 months' severance.

The court also ordered the severance to be paid as a lump sum and awarded the applicant a project bonus of $177,500 based on the agreed internal rate of return.

The plaintiff, Rishi Drepaul, was terminated without cause from his employment as a Processing Improvements Coordinator.

He was provided 9 weeks' notice, which he argued was insufficient.

On a motion for summary judgment, the court determined the appropriate notice period, the total remuneration including benefits, and the deductibility of Employment Insurance (EI) benefits.

The court found Drepaul was wrongfully dismissed and entitled to 11 months' salary in lieu of notice, with benefits estimated at 10% of his salary, and confirmed that EI benefits are not deductible from wrongful dismissal damages.

The applicant in a human rights complaint alleging disability discrimination requested an order to close the hearing proceedings and proceed with written closing submissions.

The Tribunal denied the request, finding that to ensure a fair hearing without prejudice to the applicant, the respondent should be allowed to recall a witness to provide critical evidence regarding interactions with the applicant.

The hearing was ordered to continue for one additional day.

The applicant filed a human rights application alleging discrimination in employment and membership in a vocational association based on disability and sex, as well as reprisal.

The Tribunal considered whether to defer this application pending the determination of an earlier 2009 application involving similar facts and issues, notably concerning alleged sexual harassment by a personal respondent and a failure to investigate.

Finding significant overlap between the two matters, the Tribunal concluded that deferral was the most fair, just, and expeditious manner of proceeding to avoid inconsistent decisions and prejudice to the respondents.

The parties made a joint request to remove the individual respondent as a party to the human rights application.

The Tribunal granted the request and amended the style of cause accordingly.

The applicant alleged that the respondents reprised against him contrary to section 8 of the Human Rights Code by terminating his employment after he refused to fire other employees without cause to avoid paying severance.

The respondents requested a summary hearing to dismiss the application for delay and lack of reasonable prospect of success.

The Tribunal found that the right not to be terminated without cause or severance pay is not a right protected under the Code.

Therefore, the applicant had no reasonable prospect of success in proving reprisal for refusing to infringe others' rights under the Code.

The application was dismissed.

The applicant filed an application alleging discrimination, harassment, and reprisal on the basis of disability after his employment was terminated three weeks into a contract.

The Tribunal convened a summary hearing to determine if the application had a reasonable prospect of success.

The applicant acknowledged he had no evidence linking his alleged mistreatment or termination to his hearing disability or any other protected ground.

Furthermore, his reprisal claim was based on the employer allegedly ignoring his continuous requests for training and system access, rather than retaliation for claiming rights under the Code.

The Tribunal dismissed the application as having no reasonable prospect of success.

The applicant requested an order to amend her human rights complaint to specify remedies and add the grounds of age, race, and ethnic origin.

The Tribunal denied the request, noting that remedies do not require a formal amendment and that the applicant's submissions regarding the additional grounds failed to allege specific acts of discrimination by the respondent on those bases.

The applicant filed an Application alleging Contravention of Settlement.

The respondents failed to file a Response within the required 14 days after the applicant delivered the Application by e-mail to their apparent lawyer.

The Tribunal issued an Interim Decision directing that the Application and Decision be sent to the respondents by mail and courier, and granted the respondents 10 days to file a Response and explain the delay, failing which the Tribunal may proceed without further notice.

The appellant appealed a trial judgment regarding alleged breaches of non-solicitation and non-competition clauses, as well as misuse of confidential information.

The Court of Appeal dismissed the appeal, finding that the reasonable efforts clause in the addendum applied only to the non-solicitation clause, which was not breached.

Furthermore, the court held that the appellant had no proprietary interest in the allegedly confidential information and therefore could not assert a claim for its misuse.

The applicants filed complaints alleging that their union breached its duty of fair representation under section 74 of the Labour Relations Act during their grievance arbitration.

The applicants claimed that union counsel was uncaring, incompetent, failed to call corroborating witnesses, and fell asleep during the hearing.

The Board dismissed the applications, finding that union counsel's strategic decisions, including not calling certain witnesses and not seeking judicial review of the arbitrator's award, were reasonable judgment calls.

The Board concluded that the union's conduct was not arbitrary, discriminatory, or in bad faith, and that the applicants received adequate representation.

The complainant, who was diagnosed as HIV-positive shortly after commencing employment, was denied long-term disability benefits due to a pre-existing condition exclusion clause in the employer's group insurance policy.

The clause excluded coverage for disabilities arising from conditions for which the employee received medical care during the 90-day probationary period.

The Board of Inquiry found that while the clause was prima facie discriminatory, it was saved by section 25(3)(a) of the Human Rights Code as a reasonable and bona fide distinction based on a pre-existing handicap that substantially increases risk.

The Board applied the Supreme Court's test from Zurich Insurance, concluding the clause was a sound and accepted insurance practice for small groups to prevent adverse selection, and that no practical alternative existed.

In an interim decision, the Board of Inquiry granted a motion on consent to add First North American Insurance Company as a respondent to the human rights complaint.

The added party was a wholly owned subsidiary of the respondent North American Life Assurance Company and was the actual contracting party with the complainant for the group benefits policy at issue.

The respondent insurance company brought a motion to restrict the evidence in a human rights complaint to the specific illness of the complainant (AIDS), arguing that evidence regarding the impact of an exclusion clause on persons with other disabilities was irrelevant and hypothetical.

The Board of Inquiry dismissed the motion, ruling that because the exclusion clause itself was alleged to be discriminatory, evidence of its broader impact was necessary and admissible to determine its validity.

The union filed a complaint alleging the employer breached a written settlement of an earlier unfair labour practice complaint by failing to pay agreed-upon compensation to three reinstated employees.

The employer argued the settlement was void because the employees resigned shortly after returning to work, which contravened the employer's unexpressed expectation of stability.

The Ontario Labour Relations Board held that the clear, unambiguous terms of a written settlement cannot be repudiated based on unstated expectations or subsequent events not addressed in the agreement.

The Board directed the employer to pay the specified sums.