Natalie C. MacDonald

This motion concerned the costs of a plaintiff's motion on undertakings and refusals.

The substantive issues were resolved at the outset of the hearing when the defendants capitulated to all of the plaintiff's demands.

The court distinguished the case from situations where parties settle "except for costs" before the hearing, noting the defendants' last-minute concession after the plaintiff had fully prepared for an opposed motion and the defendants had filed no responding materials.

The court found the defendants' strategy was one of delay to avoid cost consequences.

Consequently, the plaintiff was awarded partial indemnity costs of $15,000, inclusive of taxes and disbursements, for the motion, rejecting the plaintiff's request for full indemnity or costs incurred prior to the motion's commencement.

This decision addresses two motions regarding discovery undertakings and refusals in a wrongful dismissal action.

Marwan Dalle sought orders for Cisco's representative to provide better answers and reattend discovery, while Cisco sought similar orders against Dalle.

The court applied principles of relevance and proportionality, finding that constructive dismissal was sufficiently pleaded by Dalle.

Most of Dalle's requests for Cisco's representative were granted, particularly concerning employment offer terms, commission entitlements, inducement representations, and the veracity of the corporate restructuring reason for termination.

Cisco's requests for Dalle were largely found to have been addressed by Dalle's subsequent disclosures.

Both parties' representatives were ordered to reattend discovery for follow-up questions, with costs of reattendance reserved to the trial judge.

Dalle was awarded net partial indemnity costs of $7,000 against Cisco due to Cisco's lack of effort in reducing the issues in dispute.

The defendant brought a motion to strike certain paragraphs of the plaintiff's statement of claim.

Prior to argument, the parties resolved the substantive issues and agreed to amend the impugned paragraphs, but could not agree on costs.

The plaintiff sought partial indemnity costs, arguing the defendant's initial position was overly broad, while the defendant argued no costs should be awarded for a settled motion.

The court declined to award costs, finding it could not determine which party achieved substantial success or whether the motion was unnecessary without hearing the merits.

The appellant, Johnson Controls Canada LP, appealed a summary judgment that awarded the respondent, John Maynard, full entitlement under his employment contract, including the value of Restricted Stock Units (RSUs).

Maynard was terminated without cause, and his compensation included RSUs subject to a forfeiture provision he was unaware of.

The motion judge found the exclusion of RSUs from the termination payment calculation breached the contract.

The Court of Appeal dismissed the appeal, affirming that Johnson Controls could not force Maynard to sign a release based on an improperly calculated amount and that the RSUs were part of his compensation entitlement.

The plaintiff brought a summary judgment motion for wrongful dismissal damages after being terminated without cause.

The employer argued the employment contract limited termination pay to base salary and required the plaintiff to sign a release to receive an enhanced lump sum.

The court found the contract language was not sufficiently clear to exclude the value of unvested Restricted Stock Units (RSUs) and bonuses from the notice period compensation.

The court also held it was unreasonable for the employer to withhold the lump sum payment because the plaintiff refused to sign a release while the compensation amount was in dispute.

Summary judgment was granted to the plaintiff for $427,891.18.

Following a successful motion for summary judgment by the defendants, the court determined the quantum and scale of costs.

The defendants sought $97,599.95 in substantial indemnity costs, relying on a Rule 49 offer to settle.

The court found the offer was valid and the plaintiff fared less favourably, justifying costs on a higher scale.

However, noting the lack of complexity and the principle of proportionality, the court fixed costs at $45,000 inclusive of HST and disbursements.

The defendants brought a summary judgment motion to dismiss an employment-related action on the basis of a signed full and final release executed at termination.

The responding party argued the release was unenforceable due to economic duress and unconscionability arising from dismissal, illness, and alleged inequality of bargaining power.

Applying the summary judgment framework, the court held there was no genuine issue requiring a trial, found no illegitimate coercive pressure, and concluded the employer had taken sufficient steps to mitigate any bargaining imbalance, including extensions and encouragement to seek legal advice.

The court also held the bargain was not improvident given the payment received and the nature of the release.

Summary judgment was granted dismissing the action.

The Attorney General of Canada appealed a Master's decision allowing claims for damages by Vivian Bercovici against Katie Telford, Chief of Staff to the Prime Minister, to proceed.

The claims arose from Bercovici's dismissal as Canada's Ambassador to Israel and included intentional infliction of mental suffering and bad faith post-termination conduct.

The Master had dismissed the mental suffering claim but allowed the bad faith claim to proceed against Telford personally.

The Superior Court of Justice, on appeal, found that under Ontario law, only employers can be liable for bad faith conduct committed by their employees within the scope of employment regarding employment contracts.

Consequently, the personal claim against Katie Telford for bad faith post-termination conduct was dismissed.

Leave was granted to Bercovici to amend her Statement of Claim to plead conduct beyond the scope of employment.

The applicant, a university professor, sought a declaration that the respondent insurer had a duty to defend her in a defamation action brought by a former colleague in Trinidad and Tobago.

The insurer denied coverage, arguing the applicant was not acting on behalf of the university when she made the impugned statements and thus was not an 'Additional Insured'.

The court found that the pleadings raised the mere possibility that the applicant was acting in her capacity as a professor on behalf of the university when she provided an off-list reference.

The court declared the insurer had a duty to defend but held the insurer retained the right to appoint defence counsel.

The appellants, three physicians who practiced in the respondent hospital's urgent care centre, appealed the dismissal of their wrongful dismissal action.

The trial judge dismissed the claim on the ground that it was barred by section 44(5) of the Public Hospitals Act, which immunizes hospitals from liability for acts done in good faith when a hospital board decides to cease providing a service.

The appellants argued that section 44(5) should not apply based on legislative history and the characterization of their status as dependent contractors.

The Court of Appeal upheld the dismissal, finding that section 44(5) is clear and all-encompassing, barring all proceedings for damages arising from a hospital's decision to cease providing a service, regardless of the legal characterization of the terminated physicians' status.

In a wrongful dismissal action, the moving party sought leave mid-trial to introduce a performance-rating grid that had not been disclosed in its affidavit of documents.

The court held that under Rule 53.08, leave was mandatory unless the late disclosure caused prejudice that could not be cured by costs or an adjournment, and found the prejudice here was not "baked in".

Leave was granted on terms including a mid-trial adjournment, a limited further examination for discovery, and broad latitude for re-examination.

Although the moving party succeeded on the motion, the responding party was awarded partial indemnity costs because the relief obtained was an indulgence made necessary by the moving party's disclosure default.

The respondents in a human rights application requested an order to remove the individual respondent, a managerial employee, as a party to the proceeding.

The corporate respondent accepted vicarious liability for the individual respondent's actions and demonstrated the ability to respond to and remedy any potential Code violations.

Finding no compelling reason to continue the proceeding against the individual respondent, the Tribunal granted the request and removed him as a party.

The respondent was employed by the appellant for 16 years under a series of one-year contracts.

When her employment was terminated without cause, the appellant offered only the minimum statutory notice, arguing she was on a fixed-term contract or, alternatively, that the contract limited her to statutory notice.

The trial judge found she was an indefinite-term employee entitled to reasonable notice, set at 16 months but reduced to 12 months for failure to mitigate.

The Court of Appeal dismissed the employer's appeal and the employee's cross-appeal, holding that the contract lacked the unequivocal language required to establish a fixed term or to rebut the common law presumption of reasonable notice.

The respondent, a public servant, was released from his employment when his position was declared surplus under s. 22(4) of the Public Service Act.

He brought an action for wrongful dismissal in the Superior Court of Justice, alleging bad faith.

The appellant employer brought a motion to dismiss the action, arguing the Public Services Grievance Board had exclusive jurisdiction, or alternatively, that the court should defer to the Board.

The motions judge dismissed the motion.

On appeal, the Court of Appeal held that while the Board and the courts had concurrent jurisdiction, the courts should not defer to the Board because the statutory grievance procedure was not mandatory and did not explicitly abrogate the employee's right to access the courts for breach of contract.