Matthew Adam Fisher

The defendant, Fancamp Exploration Ltd., brought a motion for leave to amend its statement of defence in a contract dispute with Fouad Kamaleddine and FFK Consulting Services Inc. The motion was opposed by the plaintiffs due to its lateness, being brought two weeks before the pretrial and eleven weeks before trial.

The court reviewed the proposed amendments and found that, except for a new unconscionability defence introduced at the last minute, the amendments would not cause non-compensable prejudice to the plaintiffs.

The court granted leave to amend except for the last sentence of new paragraph 39, which introduced the unconscionability defence.

No costs were awarded due to the defendant's delay and partial success.

The moving party, Sussex Strategy Group Inc., brought a motion for leave to appeal the order of Koehnen J. dated June 21, 2023.

The Divisional Court dismissed the motion for leave to appeal.

No order as to costs was made.

This is an appeal from a trial judgment awarding damages in lieu of notice for termination from employment.

The appellant challenged the trial judge's assessment of the respondent’s reasonable notice period, entitlement to a bonus payment during the notice period, and the inclusion of disbursements from a mandatory mediation in the costs award.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's application of Bardal factors or the inclusion of pro-rata bonus entitlement.

The court also affirmed that expenses for mandatory mediation, even with a non-roster mediator, are properly included as disbursements in a costs award.

Following a trial where the plaintiff was awarded 10 months' reasonable notice for wrongful dismissal, the court determined the issue of costs.

The plaintiff sought costs on a combined partial and substantial indemnity basis, capped at $56,500 under Rule 76.12.2(1) for Simplified Procedure actions.

The defendant argued for a lower amount.

The court fixed costs at $50,000 inclusive of taxes, plus $4,560.28 for disbursements, noting the straightforward nature of the case and the defendant's refusal to accept the plaintiff's reasonable offers to settle.

The plaintiff, a 47-year-old Director of Marketing and Communication, sued for wrongful dismissal after his employment was terminated without cause after nearly three years of service.

The court found the termination clause in his employment agreement void under the Employment Standards Act.

Considering the Bardal factors and the negative impact of the global pandemic on the plaintiff's ability to secure alternate employment, the court awarded 10 months' reasonable notice.

Claims for bad faith damages regarding a damaged USB stick were dismissed, and the court found no failure to mitigate.

The plaintiff, a 61-year-old professional engineer, brought a motion for summary judgment in a wrongful dismissal action against his employer of approximately 26 years.

The court determined that despite a brief break in service where the plaintiff acted as an independent consultant, his employment should be viewed holistically.

Applying the Bardal factors, the court awarded a 24-month notice period, subject to a two-week contingency deduction for future mitigation.

The court declined to award damages for lost bonuses, finding no evidence that bonuses would likely be paid during the notice period due to the pandemic.

The appellant employer terminated the respondent's employment and made several termination-related payments, including a mistaken payment in November 2018.

The parties subsequently attended mediation and executed minutes of settlement requiring the employer to pay $150,000 'in addition to amounts already paid'.

The employer's representatives at mediation were unaware of the November payment and later sought to deduct it from the settlement amount.

The motion judge enforced the settlement, finding no ambiguity and no fraud by the respondent regarding the employer's unilateral mistake.

The Court of Appeal dismissed the appeal, holding that the subjective, uncommunicated knowledge of the employer's representatives did not form part of the factual matrix for contractual interpretation.

The plaintiff moved for summary judgment in a simplified procedure wrongful dismissal action arising from a without-cause termination after less than one year of service.

Applying the Hryniak framework, the court held there was no genuine issue requiring a trial and determined the matter on the written record.

Applying the Bardal factors, the court found the plaintiff was not a senior manager or executive despite his title, but his age and the limited availability of comparable employment justified a reasonable notice period of two months.

After crediting the termination payments already made, the court awarded damages of $11,359.98 plus pre-judgment and post-judgment interest.

The plaintiff brought a motion to enforce a settlement agreement reached at mediation in a wrongful dismissal action.

The defendant opposed and brought a cross-motion to refuse enforcement, arguing it had mistakenly made a prior payment of $115,465.20 to the plaintiff which it did not know about during mediation.

The court found that the written Minutes of Settlement were clear and unambiguous, and that the defendant's mistake was unilateral.

Because there was no evidence the plaintiff knew of the mistake or engaged in fraud, the court enforced the settlement and ordered the defendant to pay the remaining balance.

The defendant brought a motion to compel the plaintiff to answer questions refused during cross-examination on the basis of settlement and solicitor-client privilege, and to examine the plaintiff's counsel under Rule 39.03.

The underlying dispute involved a motion to enforce a wrongful dismissal settlement where the defendant alleged a mistake of fact regarding amounts already paid.

The court dismissed the motion, finding that the plaintiff had not waived privilege by putting his legal advice in issue, and that examining opposing counsel was neither necessary nor highly material to justify breaching solicitor-client privilege.

The appellant employer appealed a summary judgment award of $310,040.88 in damages to its former employee, representing 19 months' pay in lieu of notice plus prejudgment interest and costs.

The motion judge had found the termination clause in the employment agreement unenforceable due to lack of consideration.

The Court of Appeal allowed the appeal, finding that the employer's offer of employment to the employee upon the sale of the business constituted valid consideration for the termination clause.

The court distinguished the case from precedents involving variations to a single employment relationship, emphasizing that a new contract with a new employer was formed upon the business sale.

The court remitted the action to trial to address remaining issues regarding ESA compliance and other arguments not previously decided.

The appellant company appealed a trial decision finding that two kitchen cabinet installers were dependent contractors entitled to 26 months' reasonable notice upon termination.

The appellants argued the workers were independent contractors because they had performed some work for a competitor in the two years prior to termination.

The Court of Appeal dismissed the appeal, holding that exclusivity must be assessed over the full history of the relationship, during which the workers had served the company almost exclusively for over 25 years.

The Court also upheld the 26-month notice period, finding that the workers' age, length of service, and economic dependence constituted exceptional circumstances justifying an award beyond the usual 24-month cap.

The respondent, a 38-year employee of the Danbury group of companies, was terminated without cause at age 73 and denied compensation or pension payments.

The trial judge found the various appellant companies jointly and severally liable for wrongful dismissal and pension obligations under the common employer doctrine.

The Court of Appeal dismissed the employers' appeal, affirming the trial judge's factual findings that the companies were sufficiently interconnected to be considered a common employer, including a newly formed entity that the respondent helped establish prior to his termination.

The plaintiffs, long-time kitchen cabinet delivery and installation workers who had been reclassified from employees to purported independent contractors in 1987, sought damages after termination without notice.

The court held that the relationship fell within the intermediate category of dependant contractors, emphasizing the plaintiffs’ near exclusivity, the defendant’s effective control, the integration of their work into the defendant’s business, and the absence of any real entrepreneurial opportunity.

Having regard to their long prior service and the overall relationship, the court awarded 26 months’ reasonable notice damages.

The action against one incorrectly named corporate defendant was dismissed without costs.

Following a trial in a wrongful dismissal action where the plaintiff succeeded and was awarded damages, the court addressed the quantum of costs and interest.

The plaintiff sought substantial indemnity costs, arguing that several defences maintained by the defendants until shortly before trial were baseless and vexatious.

The defendants argued that costs should remain on a partial indemnity scale and that certain claimed legal fees should be reduced, including work related to a previously settled summary judgment motion and time spent by a lawyer who did not appear at trial.

Applying the factors under Rule 57.01 and the principle that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $47,500 inclusive of HST and disbursements.

The plaintiff was also awarded pre‑judgment and post‑judgment interest.

A long‑serving employee dismissed after 38 years sued several related corporations for wrongful dismissal, asserting they operated as a common employer and that a successor entity continued the same business.

The court applied the common employer doctrine and found the companies functioned as an integrated enterprise using the same business name, premises, and personnel.

The newly operating entity that continued the business could not avoid liability merely through corporate restructuring.

The court also upheld a decades‑old retirement compensation agreement, finding it remained valid because the employee’s duties and employment relationship had not fundamentally changed.

All defendants were held jointly and severally liable for wrongful dismissal damages and retirement compensation.

A former senior executive sued for wrongful dismissal after termination without cause.

The dispute concerned whether a later employment document replaced an earlier agreement containing a 12‑month severance clause, the appropriate reasonable notice period, and entitlement to bonus payments.

The court held the later document constituted a new employment agreement that displaced the earlier severance provision, leaving notice to be determined under the common law.

Applying the Bardal factors, the court awarded a 12‑month reasonable notice period despite the employee’s relatively short tenure and rejected the employer’s proposed three‑month period.

The court also denied the employee’s claim to bonus payments because the bonus plan required active employment at the payout date.

The plaintiff alleged that the provincial government induced a breach of his employment contract and intentionally interfered with his economic relations after revoking his security clearance to access the government licensing database used at a private motor vehicle licensing office.

The revocation followed a security screening that revealed past associations with outlaw motorcycle gangs.

The court held that the government’s decision was part of a general security screening policy designed to protect sensitive government databases and was not directed at causing a breach of the plaintiff’s employment contract.

The evidence did not establish the requisite intention to induce breach of contract, nor did it show the use of unlawful means necessary to support the tort of intentional interference with economic relations.

The plaintiff’s action was dismissed.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action seeking damages equivalent to 24 months’ reasonable notice after being dismissed without cause following more than 22 years of employment.

The defendant argued that the notice period should be between 12 and 16 months and that the plaintiff failed to reasonably mitigate her damages.

The court held that the motion record was inadequate to resolve conflicting evidence regarding the plaintiff’s mitigation efforts and the availability of comparable employment opportunities, both of which are relevant to determining reasonable notice under the Bardal factors.

Because credibility assessments and fuller evidence were required, the court found genuine issues requiring a trial.

The motion for summary judgment was dismissed and the matter was scheduled for a two‑day trial.

The plaintiff sued for wrongful dismissal after being terminated without cause.

The parties had agreed to the essential terms of employment in May 2007.

After the plaintiff started working, the defendant presented a document containing a termination clause limiting notice to the minimums under the Employment Standards Act, 2000.

The court held that the termination clause was null and void because the defendant provided no new consideration for the amendment to the existing oral contract.

The plaintiff was awarded damages based on a reasonable notice period of 3.9 months.