Lior Samfiru

The appellant, The Corporation of the Township of Ignace, appealed a summary judgment order that awarded the respondent, Karen Dufault, damages for wrongful dismissal.

The core issue was the enforceability of termination clauses in an employment contract under the Employment Standards Act, 2000 (ESA).

The Court of Appeal affirmed the motion judge's finding that the "for cause" termination clause was unenforceable because its definition of "cause" was broader than the ESA's narrow exception for "wilful misconduct." Applying the principle from Waksdale v. Swegon North America Inc., the court held that the invalidity of the "for cause" clause rendered all termination provisions in the contract unenforceable, even though the respondent was terminated without cause.

The appeal was dismissed, upholding the original award of damages.

This is a costs endorsement from the Court of Appeal for Ontario following a successful appeal by the appellant, Candace Taylor, in a constructive dismissal action.

The Court had previously set aside the motion judge's dismissal of the action and the original costs order.

This endorsement addresses the costs of the underlying motion.

The appellant sought $15,000 or, alternatively, partial indemnity costs of $10,533.07.

The respondent argued for no costs.

The Court awarded the appellant partial indemnity costs of $8,500, finding this amount to be fair, reasonable, and proportionate, while accounting for some duplication in counsel's efforts.

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.

The moving party brought a motion for leave to appeal an earlier order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The appellant appealed the dismissal of her constructive dismissal action, which was decided on a Rule 21 motion.

The Court of Appeal found that the motion judge erred by taking judicial notice of disputed facts and by misapplying pleading rules, effectively treating the Rule 21 motion as a summary judgment motion.

The Court held that material factual issues were in dispute, making a Rule 21 determination inappropriate without evidence.

The Court declined to interpret the Employment Standards Act provisions and associated regulations regarding infectious disease emergency leave (IDEL) in the absence of a proper factual record, remitting the action to the Superior Court for determination.

The parties disputed the wording of a Certification Order in a class action regarding whether Uber drivers are employees.

The defendants requested the addition of the phrase 'to be calculated and assessed on an individual basis' to the paragraph describing the relief sought.

The court granted the request, finding that the phrase provided true and helpful information to the putative class members regarding the potential need for individual issues trials.

The Ontario Superior Court of Justice addressed disputes regarding the Notice of Certification and Notice Plan in a certified class proceeding against Uber.

The plaintiffs, representing drivers and delivery people seeking employee classification, proposed a notice plan.

Uber responded with alterations, including broader newspaper publication and inclusion of its defence commentary.

The court largely sided with Uber, approving a more robust, province-wide notice plan sensitive to language and diversity, and requiring the inclusion of Uber's legal position in the notices.

The court also apportioned the costs of newspaper notices 33% to the Plaintiffs and 67% to Uber.

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The plaintiff brought a motion to certify a class action against Uber on behalf of drivers and delivery people, alleging they are employees misclassified as independent contractors and are entitled to benefits under the Employment Standards Act, 2000.

Uber opposed certification, arguing the relationship is idiosyncratic and relying on a new Arbitration and Class Action Waiver Clause.

The court certified the action for breach of contract and ESA claims, finding some basis in fact for common issues regarding employment status based on the standard form contracts and app functionality.

The court declined to strike down the arbitration clause at this stage, ordering that class members be given notice of its potential legal significance.

The plaintiff in a proposed class action against Uber sought court approval of a third-party litigation funding agreement with Augusta.

The proposed class action alleges that Uber breached employment contracts and the Employment Standards Act, 2000.

The court reviewed the four-factor test for approving third-party funding agreements, noting that the agreement was necessary for access to justice, fair and reasonable, and did not overcompensate the funder.

The court approved the litigation funding agreement.

The appellants sought to enforce a mandatory arbitration clause in their standard form services agreement, requiring the respondent to resolve any dispute through mediation and then arbitration in the Netherlands under ICC Rules at an up-front cost of approximately US$14,500.

The majority held that the arbitration clause was unconscionable, as there was a clear inequality of bargaining power between a large multinational corporation and a low-income delivery driver, and the resulting arbitration agreement was improvident in that the prohibitive fees effectively denied the respondent any meaningful access to dispute resolution.

The Court also clarified the framework for determining when a court, rather than an arbitrator, should resolve challenges to arbitral jurisdiction, holding that a court may depart from the general rule of arbitral referral where there is a real prospect that the challenge would never be resolved if referred to arbitration.

A concurring judgment by Brown J. agreed with dismissal but preferred to ground the result in public policy rather than unconscionability, finding that the arbitration clause imposed undue hardship by barring access to a legally determined dispute resolution.

Côté J. dissented, reasoning that the arbitration clause was valid, that the Court of Appeal erred in applying the Arbitration Act rather than the International Commercial Arbitration Act, and that the appropriate remedy, if any, was a conditional stay requiring Uber to advance the initiation fees.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, claiming constructive dismissal due to a temporary layoff after 23 years of employment.

The court found that the temporary layoff constituted constructive dismissal as there was no contractual right for the employer to implement such a layoff.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a bona fide recall offer from the employer, which included assurances of no reprisals and substantially similar terms of employment.

The plaintiff's subjective belief of embarrassment or degradation was not objectively supported.

Consequently, the plaintiff's damages were limited to the period between the layoff and the recall offer.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The plaintiff, an UberEATS driver, commenced a proposed class action alleging that Uber drivers are employees and entitled to the protections of the Employment Standards Act, 2000.

The defendants moved to stay the action in favour of arbitration in the Netherlands, relying on the arbitration clause in the service agreements.

The court held that the International Commercial Arbitration Act, 2017 applied and that, under the competence-competence principle, the arbitrator must determine their own jurisdiction in the first instance.

The court found no unconscionability or statutory bar to arbitration and stayed the action.

The respondent requested an order to defer the human rights application pending the outcome of a parallel claim under the Employment Standards Act.

The Tribunal found significant overlap between the facts and issues raised in both proceedings, including allegations of constructive dismissal, unpaid wages, and reprisal related to parental leave.

To avoid the risk of inconsistent factual findings, the Tribunal exercised its discretion to defer the application until the conclusion of the Ministry of Labour process.

The applicant sought to re-activate his transitional human rights application following a decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

The request was filed 35 days after the 60-day deadline set out in the Tribunal's Rules of Procedure.

The Tribunal found that the applicant provided a reasonable explanation for the delay, having attempted to contact his former representative within the deadline.

Given the short length of the delay and the lack of prejudice to the respondents, the Tribunal granted the request to re-activate the application and ordered a hearing to determine whether the matter had been appropriately dealt with by the WSIAT.

In a wrongful dismissal action, the plaintiff brought a motion to amend his Reply to remove references to having received and relied upon legal advice regarding the interpretation of a termination clause in his employment contract.

The defendant opposed the amendment, arguing it constituted an attempt to withdraw admissions and sought a declaration that the plaintiff had waived solicitor‑client privilege over the legal advice.

The court held that the pleaded statements about receiving and relying on legal advice were deliberate and unambiguous admissions.

Because the plaintiff failed to satisfy the test for withdrawing admissions under Rule 51.05—providing no evidence of inadvertence, triable issue, or absence of prejudice—the amendment was refused.

The court further found that by placing his state of mind and the legal advice received directly in issue in the pleadings, the plaintiff impliedly waived solicitor‑client privilege regarding that advice.

An employee with 19 years of service brought a wrongful dismissal action after being terminated for cause for submitting falsified medical benefits claims and misrepresenting a fictitious dependent to the employer’s benefits insurer.

The employee argued the falsifications were intended only to draw attention to an administrative error in her benefits profile and also alleged discrimination and harassment related to a workplace injury.

The court found the employee knowingly falsified documents, misled the insurer, and failed to provide truthful explanations during the employer’s investigation.

Applying the contextual approach to dishonesty in employment, the court held the misconduct fundamentally breached the trust essential to the employment relationship, particularly given the employee’s supervisory role.

Claims for wrongful dismissal, bad faith damages, and breach of the Human Rights Code were dismissed.

The respondents sought to dismiss the human rights application under s. 45.1 of the Human Rights Code, arguing its substance was already dealt with in a Workplace Safety and Insurance Board Appeals Resolution Officer decision.

The applicant had appealed that decision to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

The Tribunal deferred the application pending the final WSIAT decision, noting that proceeding with a preliminary hearing could lead to inconsistent findings or overlapping remedies if the WSIAT appeal overturned the underlying decision.

The appellant employer appealed a summary judgment awarding a 62-year-old unskilled employee with 33 years of service 22 months' notice for wrongful dismissal.

The employer argued that multiple temporary extensions of employment constituted working notice and that notice for unskilled workers should be capped at 12 months.

The Court of Appeal dismissed the appeal, holding that the multiple extensions created uncertainty requiring fresh notice under the Employment Standards Act, and affirmed that there is no absolute 12-month cap on notice periods for unskilled employees.