Trevor Lawson

The moving party brought a motion for leave to appeal an order dated March 22, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no order as to costs.

This endorsement concerns the costs of a successful motion brought by Skyservice Business Aviation Inc. to strike allegations of vicarious liability for sexual harassment from the plaintiff's statement of claim.

Skyservice sought costs on a substantial indemnity basis, while the plaintiff argued for partial indemnity.

The court found no conduct warranting substantial indemnity costs, affirming that such an elevated scale is reserved for reprehensible conduct.

The court awarded Skyservice costs on a partial indemnity basis in the amount of $14,562.88, finding the quantum reasonable based on the time spent and rates, and noting its similarity to the plaintiff's own partial indemnity costs outline.

The defendants brought a motion to determine the sequencing of their proposed summary judgment motion and the plaintiff's certification motion in a class action.

The core dispute revolved around the interpretation of s. 4.1 of the Class Proceedings Act, 1992, which governs pre-certification motions.

The court followed the precedent set in Dufault v. Toronto Dominion Bank, affirming a presumptive right for preliminary motions that can dispose of or narrow issues to be heard before certification.

The court found that the defendants' proposed summary judgment motion raised genuinely arguable issues concerning limitation periods and the legality of their "negative vacation bank" policy under the Employment Standards Act, 2000, which could narrow the litigation.

Consequently, the court ordered the summary judgment motion to proceed prior to the certification motion.

The defendant Skyservice Business Aviation Inc. brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike allegations of vicarious liability for sexual harassment from the plaintiff's Fresh as Amended Statement of Claim, arguing that it does not disclose a reasonable cause of action.

The court found that sexual harassment is not an independent tort in Ontario and that section 46.3 of the Human Rights Code expressly excludes vicarious liability for sexual harassment against an employer.

The motion to strike was granted, with leave to amend denied for this specific tort, but allowing for amendments related to other Code infringements under section 46.1.

The plaintiff in a wrongful dismissal action brought a motion on the eve of trial to compel the defendant employer to produce communications between its internal legal counsel and a third-party workplace investigator.

The defendant argued the motion was barred by Rule 48.04 as the action had been set down for trial, and asserted privilege over the documents.

The court held that leave was not required because the motion sought to enforce a prior production order.

The court further rejected the defendant's claims of solicitor-client and litigation privilege, ordering the production of the withheld communications within five days.

An appeal from a summary judgment decision concerning the entitlement of a wrongfully dismissed employee to exercise stock options and restricted share units during the reasonable notice period.

The employer argued that contractual language prevented vesting after dismissal, relying on precedent.

The court upheld the motion judge's finding that the employee was entitled to damages for lost opportunity to exercise awards that would have vested during the notice period, distinguishing the controlling precedent on the basis that the contractual language lacked sufficient clarity to unambiguously remove common law rights.

The employee's cross-appeal regarding damages calculation was also dismissed.

The court provided supplementary reasons for decision regarding the quantification of damages for the loss of Restricted Share Units (RSUs) and stock options following the plaintiff's wrongful dismissal.

The plaintiff was awarded a 24-month reasonable notice period.

The central issue was determining the appropriate timeframe for calculating the value of these equity instruments, specifically how long after vesting the plaintiff would have sold them.

The court rejected both the plaintiff's claim of immediate sale and the defendant's proposal of 13.7 months based on pre-termination sales activity.

Instead, by examining the plaintiff's actual sales activities during the notice period, the court determined that damages should be calculated on the basis that the plaintiff would have sold the shares five months after their vesting date.

The plaintiff, a senior executive with 22 years of service, was terminated without cause by the defendant.

He brought a motion for summary judgment seeking damages for wrongful dismissal.

The court granted summary judgment, fixing the reasonable notice period at 24 months.

The court held that the plaintiff's entitlement to commissions was not reduced by 50% under the employer's commission plan, as the reduction clause only applied to voluntary resignations.

The court also awarded damages for lost stock options, restricted share units, pension contributions, and certain benefits that would have accrued during the notice period, deferring the exact quantification of damages to a later date.

The applicant, a former Senior Vice-President of OLG, sought declarations that OLG breached a retirement contract by failing to pay him additional compensation.

The contract stipulated pre-retirement obligations, including identifying and training a successor and transferring the Compliance department.

The court found that OLG's actions, specifically delaying the approval of a successor and preventing the transfer of the Compliance department, thwarted the applicant's ability to fulfill his contractual duties.

The court determined that the contract did not impose an "all or nothing" condition for payment and that OLG induced the applicant's breach of the terms.

Therefore, the application was granted, and the applicant is to be paid as though he fulfilled all contractual terms.

The plaintiff, a cargo handler at Pearson International Airport, sought an interlocutory injunction to restrain picketing by the defendant union, which was engaged in a legal strike against a neighbouring employer.

The plaintiff was not a party to the labour dispute but its operations were disrupted.

The court found that the plaintiff met the test for an interlocutory injunction, relying on issue estoppel from a previous injunction granted to the airport authority.

However, the court declined to grant the broader injunction sought by the plaintiff, instead limiting the order to the terms of the existing picketing protocol established in the previous order.

The moving defendant sought to strike portions of a statement of claim in an employment-related action or, alternatively, obtain particulars.

The court reviewed the principles governing particulars, including the requirement that the requesting party ordinarily establish the requested information is outside that party's knowledge and necessary to plead.

Particulars were ordered for allegations concerning valuable consideration, reported information, impugned words, and defamation particulars, but not for other solicitation allegations that were not shown to be outside the defendant's knowledge.

The motion to strike was dismissed and the result on particulars was mixed, with no costs.

The appellant, former Chief Financial Officer of the respondent corporation, appealed the dismissal of his application for a change of control payment.

The agreement entitled him to a payment if he ceased to be an officer 'within six months of the date on which control of the Corporation changes'.

The application judge held this required termination to occur after the change of control.

The Court of Appeal reversed, holding that the plain language and commercial purpose of the agreement applied as long as the termination and change of control occurred within six months of each other, regardless of which came first.

The appeal was allowed and the payment ordered.

The appellant employer appealed a trial judgment awarding the respondent employee 10 months' salary in lieu of notice for wrongful dismissal.

The trial judge had explicitly increased the notice period to include 'Wallace damages' for bad faith, despite such damages not being pleaded or claimed.

The Court of Appeal found this was an error in principle.

Applying the standard of review for wrongful dismissal awards, the Court deferred to the trial judge's assessment of the Bardol factors but removed the estimated one-month portion attributable to the Wallace damages, reducing the total notice period to 9 months.