Neal B. Sommer

Following a wrongful dismissal trial in which the plaintiff recovered damages for reasonable notice, the court determined costs and interest.

The plaintiff sought over $101,000 in costs, but the court found counsel had recorded excessive and unreasonable time on a relatively straightforward file.

Applying the principles of reasonableness, indemnity, and what the unsuccessful party could reasonably have expected to pay, the court reduced the claim substantially.

Interest of $10,770.09 was awarded, and costs were fixed at $42,000 inclusive of HST on a partial indemnity basis, excluding mediation costs.

A senior logistics executive sued for wrongful dismissal after being terminated without adequate notice less than three years after recruitment to serve as country manager of Canadian operations.

The court applied the Bardal factors, considering the employee’s age, senior management responsibilities over a large national operation, limited comparable employment opportunities, and evidence of inducement from secure prior employment.

The court also considered the requirement that the employee make a substantial investment in an affiliated company as creating an implied expectation of longer‑term employment.

Despite the short tenure, these factors justified a lengthy notice period.

Reasonable notice was fixed at 14 months and damages were awarded after deducting mitigation earnings and payments already received.

The Tribunal issued a Case Assessment Direction to determine whether the application should be deferred pending the applicant's complaints to the Law Society of Upper Canada regarding the respondent's employees.

Both parties submitted that deferral was inappropriate as the Law Society investigations had concluded without any findings.

The Tribunal agreed, declined to defer the application, and directed the matter to proceed to a one-day oral hearing, waiving normal pre-hearing production requirements.

The appellant employer appealed a trial judgment awarding the respondent employee damages for wrongful dismissal, specifically challenging the inclusion of bonus, profit sharing, and vacation pay.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to treat the bonus and profit sharing as deferred compensation, given they formed a substantial portion of the employee's compensation and he was told they would be treated as such upon hiring.

The award for one week's vacation pay was also upheld.

The applicant employer sought review of an Order to Pay termination and severance pay to three former employees, arguing they were guilty of wilful misconduct or neglect of duty.

The employer had hired a private investigator who observed the employees taking extended breaks, making personal phone calls, and watching television during working hours.

The Board found that while the employees engaged in misconduct and neglect of duty, their behaviour was not 'wilful' within the meaning of the Employment Standards Act.

The employees did not have a genuine understanding of the possible disciplinary consequences of their behaviour, largely due to the employer's failure to communicate rules or warnings effectively and the supervisor's inaction.

The application for review was dismissed, and the funds held in trust were ordered to be paid to the employees.

The applicant sought a review of two Orders to Pay totaling $73,421.93 under the Employment Standards Act.

The parties reached a settlement agreement.

The Board ordered the applicant's total liability reduced to $22,500, with the Ministry of Labour directed to refund the balance of the funds held in trust to the applicant.

The Ministry was also directed to pay $1,200 to the individual claimant who appeared at the hearing.

The Ironworkers filed a jurisdictional dispute complaint against Ontario Hydro and the United Association regarding the assignment of work related to the removal and replacement of feedwater heaters at the Lakeview Thermal Generating Station.

The Board dismissed preliminary motions by the United Association to defer to The Plan for the Settlement of Jurisdictional Disputes, and by the Ironworkers to enforce the 1958 Cooper-Connolly trade agreement, finding the latter had been validly repudiated in 1981.

On the merits, the Board relied primarily on employer and area past practice.

It directed that the fabrication and installation of the structural steel floor falsework deck and track runway be assigned to the Ironworkers.

The Board divided the signalling and rigging work between the two trades, assigning the handling of piping equipment using power equipment to the Ironworkers, and the lateral movement and final installation using tools of the trade to the United Association.

The Toronto Transit Commission filed an unfair labour practice complaint against the union after the union expelled several inspectors from membership.

During a strike, the TTC had directed the inspectors, who were excluded from the bargaining unit as managerial personnel, to perform bargaining unit work.

The union passed a resolution revoking the local membership of any inspector who complied, which resulted in the loss of their departmental seniority rights upon return to the bargaining unit.

The Board dismissed the complaint, finding that the strike provisions of the Labour Relations Act (sections 74, 76, and 78) apply only to 'employees' and not to managerial persons.

The Board further held that section 70 does not protect managerial persons seeking to enforce seniority rights under a collective agreement.