Paul J. Willetts

This was a pleadings motion in a wrongful dismissal and libel action where the defendant, Yves Besner, sought to strike portions of the plaintiff's reply.

The defendant argued that the impugned paragraphs, which introduced details about the plaintiff's prior employment with Besner's former company and its bankruptcy, were irrelevant, unresponsive to the statement of defence, and contravened Rules 25.11 and 25.08 of the Rules of Civil Procedure.

The court found that the allegations were indeed irrelevant to the claims, not responsive to the defence, and improperly attempted to raise new grounds of claim in a reply rather than through an amendment to the statement of claim as required by Rule 25.06(5).

The court also noted that allowing such pleadings would unnecessarily expand the scope and cost of litigation and found them to be scandalous.

The motion to strike was granted.

The appellant employer appealed a summary judgment decision awarding the respondent employee common law reasonable notice damages.

The motion judge had found that the termination clause in the employment agreement was ambiguous and did not clearly rebut the presumption of common law notice.

The Divisional Court dismissed the appeal, holding that the motion judge made no palpable and overriding error in interpreting the contract.

The court found that the termination clause, when read in the context of the entire agreement, lacked the necessary clarity to limit the employee's entitlements to the statutory minimums under the Employment Standards Act.

An employee challenged the enforceability of a termination clause in his employment contract with IBM.

The motion judge found the clause ambiguous and unenforceable, holding that it did not clearly exclude the employee's entitlement to damages at common law.

The Court of Appeal reversed, holding that when read as a whole, the termination clause was unambiguous and clearly excluded common law damages.

The clause provided for notice or pay in lieu calculated according to a formula, with a failsafe provision ensuring compliance with the Employment Standards Act.

The court found no violation of the ESA and awarded costs to IBM.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the termination clause in the employment contract was enforceable.

The plaintiff argued the clause violated the Employment Standards Act, failed to rebut the common law presumption of reasonable notice, and was breached by the employer.

The court found the termination clause was ambiguous regarding whether the exclusion of common law notice applied to the failsafe provision.

Resolving the ambiguity in favour of the employee, the court dismissed the motion and ordered the issues of reasonable notice and damages to proceed to trial.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's $11 million claim and sought costs on a substantial indemnity basis, claiming over $100,000 in fees.

The plaintiff argued the defendants' costs were disproportionate and suggested an award of approximately $21,000 on a partial indemnity basis.

The court considered the factors under Rule 57.01 and the principles of fair and reasonable expectations.

Finding the defendants' claimed costs disproportionate to the complexity of the matter and the plaintiff's costs, the court exercised its discretion to fix costs at $30,000 inclusive of disbursements and HST.