Paul Daniel Boshyk

The appellant employer terminated the respondent employee for just cause following an investigation into a co-worker's complaint of sexual harassment.

The employee refused to apologize for the inappropriate comments, although he agreed to sensitivity training.

The trial judge found the termination was not justified, awarding damages in lieu of notice.

On appeal, the Court of Appeal for Ontario found that the trial judge erred in failing to properly apply the just cause test, specifically by not characterizing the employee's conduct as sexual harassment and by focusing solely on the refusal to apologize.

The Court determined that the employee's sexually harassing comments, coupled with his lack of remorse and refusal to comply with the employer's reasonable disciplinary requirement of an apology, constituted an irreparable breakdown in the employment relationship, justifying termination for cause.

The appeal was allowed, and the employee's claim was dismissed.

Following an eight-day trial where the plaintiff obtained judgment for $187,000 plus prejudgment interest, the parties submitted written arguments on costs.

The plaintiff sought partial indemnity costs to the date of his Offer to Settle and substantial indemnity costs thereafter, arguing his Offer was more favourable than the judgment.

The defendant contended that substantial indemnity costs were unwarranted due to the dismissal of the plaintiff's claims for aggravated, punitive, and special damages.

The court found the plaintiff's Offer to Settle complied with Rule 49 and was more favourable, entitling him to partial indemnity costs to the offer date and substantial indemnity thereafter.

Despite insufficient detail in both parties' costs submissions, the court fixed the plaintiff's costs at $145,000 inclusive of disbursements and HST, plus prejudgment interest at 0.8%.

The plaintiff, a 60-year-old Senior Product Designer with 20 years of service, was summarily dismissed for cause following a co-worker's complaint of inappropriate comments.

The employer concluded the comments were harassing and required the plaintiff to undergo training and apologize.

After the plaintiff, through counsel, agreed to training but refused an apology admitting wrongdoing, the employer terminated his employment for "irreparable breakdown in the employment relationship," citing inappropriate comments, lack of remorse, and insubordination.

The court found that the plaintiff's conduct did not justify summary termination for cause, noting the employer's apparent motivation was the plaintiff consulting a lawyer rather than the alleged harassment.

The court awarded the plaintiff 20 months' notice in damages, declining to reduce for mitigation given the specialized field and lack of employer support, and denied aggravated or punitive damages.

Following a two‑day civil trial, the court determined the issue of costs after the parties were unable to agree.

Both sides argued that they had beaten their respective offers to settle, but the court found neither offer engaged the cost consequences under the Rules of Civil Procedure.

The plaintiff was entitled to costs on a partial indemnity basis throughout.

However, the court reduced the amount sought due to concerns about the hourly rate claimed, the matter having been suitable for the Simplified Procedure, and duplication arising from multiple legal professionals working on the file.

The court fixed costs at $12,500 plus HST and undisputed disbursements.