Melynda Layton

The plaintiff in a Rule 76 wrongful dismissal action brought a motion on the eve of trial seeking production of documents and answers to questions refused on discovery.

The plaintiff sought payroll records of allegedly related corporations to prove the defendant met the $2.5 million payroll threshold for statutory severance under the Employment Standards Act.

The Superior Court of Justice dismissed the motion, holding that leave is required to bring such a motion after an action is set down for trial.

The court further held that even if leave were not required, the requested production was disproportionate, unnecessary, and pertained to documents not in the defendant's control, making it unjust to adjourn the fixed trial date.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to each of the two responding parties.

At a case conference, the plaintiff sought to prevent cross-examinations on affidavits filed for his motion to enforce a settlement, arguing the action was under the Rule 76 Simplified Procedure which prohibits such cross-examinations.

The defendant corporation opposed, arguing the motion to enforce a settlement is akin to a summary judgment motion requiring cross-examinations.

The court held that Rule 76 is not an absolute bar to cross-examinations in this context and that the two-step approach for enforcing settlements requires both parties to put their best foot forward.

The court extended the deadline for cross-examinations and ordered the plaintiff to pay costs of the case conference.

The moving parties brought a motion for leave to appeal a decision of the Assessment Review Board.

The Divisional Court dismissed the motion with costs fixed at $3,500 to the respondent, noting that consistent with usual practice, no reasons are provided for decisions on leave to appeal.

The applicant sought judicial review of an Ontario Labour Relations Board decision dismissing his complaints of reprisal under the Occupational Health and Safety Act and the Employment Standards Act, 2000.

The applicant alleged his employment was terminated because he took personal emergency leave and made a harassment complaint.

The Board found the termination was solely due to ongoing performance issues.

The Divisional Court dismissed the application, holding that the Board applied the correct legal test for reprisal, reasonably assessed the evidence, and did not deny the applicant procedural fairness in its evidentiary rulings.

Nylene Canada Inc. appealed a wrongful dismissal damage award, arguing the trial judge erred in calculating the reasonable notice period by including pre-retirement service and by exceeding a 24-month maximum.

The Court of Appeal affirmed the trial judge's findings that the "retirement/re-hiring" was solely for pension access and did not constitute a break in service.

The court also upheld the 26-month notice period, finding it justified by the employee's unique circumstances, including long tenure, specialized skills, age, and difficulty finding new employment.

The appeal was dismissed.

The appellant appealed the dismissal of its claim for breach of restrictive covenants in its contracts with the respondent independent contractors.

The trial judge had found the covenants were not brought to the attention of the respondents, were unenforceable, and that damages were not proven.

Because the appellant did not appeal the finding concerning damages, the Court of Appeal found no basis to set aside the trial judge's order and dismissed the appeal.

Following a two-day trial where the plaintiff obtained a judgment of $138,962.22, the plaintiff sought substantial indemnity costs of $67,710.50 on the basis that the judgment exceeded her offers to settle.

The defendant argued for no costs due to divided success and unreasonable claims.

The court found that while the plaintiff beat her offer to settle, substantial indemnity costs were not appropriate given the defendant's partial success on some claims and some unreasonable billing entries.

The court awarded partial indemnity costs fixed at $42,000 in fees and $2,114 in disbursements.

The plaintiff brought an action for wrongful dismissal, and the defendant counterclaimed for damages for breach of contract.

The dispute arose after the plaintiff issued an ultimatum regarding her husband's pay and subsequently participated in organizing a work stoppage, demanding changes to her employment duties.

The court found that while the plaintiff did not clearly resign, her actions constituted a repudiation of her employment contract, justifying the end of her employment.

The plaintiff's claim was dismissed.

The defendant's counterclaim for wrongful resignation was also dismissed, as the defendant failed to prove that the plaintiff's departure caused the alleged financial losses.

The plaintiff, a long-term employee of 39 years, brought an action for wrongful dismissal, aggravated/moral damages, and discrimination based on sex, age, and disability following her termination without cause.

The court found no break in service despite a new employment agreement signed to access a pension, entitling her to 26 months' notice.

Claims for aggravated/moral damages and additional discrimination grounds (age and disability) were dismissed due to insufficient pleading.

The claim for discrimination based on sex was also dismissed due to a lack of prima facie evidence.

The plaintiff's mitigation efforts were deemed reasonable.

The plaintiff's employment was terminated without cause at age 63.

The employer treated the termination as a retirement and paid the plaintiff his retirement allowance benefits under the company policy.

The plaintiff brought an action claiming entitlement to both the retirement allowance and compensation for termination in lieu of notice.

The court found that the employment contract and retirement policy expressly precluded the payment of both benefits.

The plaintiff's claim was dismissed, and the employer was granted summary judgment to recover an overpayment of funds mistakenly paid in lieu of notice.

The plaintiff, S.I. Systems Partnership, brought a motion to amend its Statement of Claim to increase general damages and add a claim for inducement of breach of contract, based on information obtained during discoveries.

The defendants opposed, arguing prejudice due to increased costs and the tenability of the new claim.

The court granted leave to amend, finding that the proposed amendments were not frivolous, vexatious, or an abuse of process, and any prejudice to the defendants could be compensated by costs and further discoveries.

The applicant filed a human rights application alleging discrimination in employment based on age and family status, as well as reprisal.

The application was deferred pending the outcome of an Employment Standards Act claim before the Ontario Labour Relations Board (OLRB).

Following the OLRB's decision, the applicant requested to reactivate the application, and the respondents requested its dismissal under section 45.1 of the Human Rights Code.

The Tribunal found that the OLRB proceeding appropriately dealt with the substance of the applicant's allegation that his termination was discriminatory on the basis of family status, as the OLRB found his request for parental leave was a factor in his termination.

However, the Tribunal held that the OLRB did not deal with the pre-termination allegations of family status discrimination, age discrimination, or reprisal.

The Tribunal dismissed the termination allegation but allowed the remaining allegations to proceed, ordering the applicant to provide further particulars.

The applicant, a teacher, filed a human rights application alleging discrimination based on disability.

The application was deferred pending the outcome of a concurrent grievance process.

During the arbitration hearing, after settlement discussions failed, the applicant withdrew her grievance to pursue the human rights application.

The respondents requested that the application be dismissed under section 45.1 of the Human Rights Code, arguing that the grievance process had appropriately dealt with the substance of the application, and that proceeding would be an abuse of process.

The Tribunal found that section 45.1 did not apply because the arbitrator had not considered the merits of the case.

The Tribunal also held that allowing the application to proceed was not an abuse of process, as there was no finality in the arbitration and no manifest unfairness to the respondents.

The applicant was permitted to continue the application.

The plaintiffs brought a motion seeking an interlocutory injunction restraining the defendants from interfering with or evicting them from commercial premises used to operate an auto repair garage.

In the alternative, they sought interim relief from forfeiture of a commercial lease after failing to exercise an option to renew within the contractual deadline.

The court held that although there were serious issues to be tried concerning the lease terms and the parties’ conduct, the plaintiffs failed to establish irreparable harm if the injunction was not granted.

The court also found that the tenant had not demonstrated diligent efforts to comply with the lease renewal provisions and therefore did not meet the requirements for relief from forfeiture.

The motion was dismissed.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, family status, marital status, and reprisal.

The Tribunal held a summary hearing to determine whether the application had a reasonable prospect of success.

The Tribunal dismissed the reprisal allegations and several other claims, finding no reasonable prospect that the applicant could establish a link to a prohibited ground or an intention to retaliate.

However, the Tribunal allowed the allegations regarding the respondent's failure to accommodate the applicant's disability to proceed to a full hearing.

The respondents requested that the Human Rights Tribunal of Ontario defer consideration of the applicant's human rights application pending the conclusion of a related wrongful dismissal action.

The Tribunal granted the deferral request, noting that the civil action involved an almost identical fact scenario, raised the potential for overlapping remedies, and had already reached an advanced stage of litigation.

The grievor, an Operational Manager, claimed entitlement to travel time and expenses for periods she was temporarily assigned to different correctional facilities between 2001 and 2004.

The employer denied the claim, arguing that the facilities were her normal place of work during those periods and that travel expenses were not a guaranteed entitlement for all temporary assignments.

The Public Service Grievance Board dismissed the grievance, finding that the grievor was travelling to her normal place of work during the claimed periods and that the employer's practice of paying travel expenses primarily applied when an employee was requested to move institutions on a temporary basis, which did not apply to the grievor's situation.

The employer raised a preliminary objection to the arbitrability of the grievor's claim for travel time and expenses from 2001 to 2004, arguing the grievance filed in June 2005 was untimely.

The grievor argued she filed within 14 days of becoming aware of the terms and conditions of employment on which she based her claim, as required by s. 34(1) of Regulation 977.

The Board accepted the grievor's uncontradicted evidence that she only became aware of the employer's policy and practice regarding travel expenses shortly before filing.

The Board dismissed the employer's preliminary objection, finding the grievance was timely based on the subjective awareness test, and directed the matter to proceed to a hearing on the merits.