Paul Macchione

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

This appeal concerned the scope of common employer liability and director liability for unpaid wages under the Business Corporations Act.

The motion judge had found Tornado Medical Systems, Inc. liable as a common employer and Jae Kim liable as a director for unpaid wages and vacation pay.

The Court of Appeal allowed Tornado's appeal, finding that the motion judge erred in her articulation and application of the common employer doctrine by effectively finding liability based on corporate affiliation rather than an intention to create an employment relationship.

The Court dismissed Dr. Kim's appeal, but varied the judgment to make his director liability conditional on the statutory requirements of execution against the corporation being returned unsatisfied or corporate insolvency.

This decision addresses the costs of a motion brought by the plaintiff, Innocenzo Lippa, to set aside an administrative dismissal for delay, which was ultimately dismissed.

The plaintiff proposed $10,000 in partial indemnity costs, while the defendant, Advanced Software Concepts Inc., sought $64,000 in substantial indemnity or $45,000 in partial indemnity.

The court declined to award elevated costs, finding no reprehensible conduct by the plaintiff.

However, it determined that a significant partial indemnity award was justified given the importance of the motion to the defendant and the work involved.

The court found the defendant's requested costs excessive, particularly for factum and argument preparation, and applied a 50% reduction.

The plaintiff moved to set aside a registrar's order dismissing his wrongful dismissal action for delay.

The court applied the test for setting aside an administrative dismissal order, considering the explanation for delay, inadvertence, promptness of the motion, and prejudice.

Despite the dismissal being due to inadvertence and the motion being brought promptly, the plaintiff failed to provide an adequate explanation for the nearly five-year delay and could not rebut the strong presumption of prejudice to the defendant, particularly given the subjective nature of the evidence required for the wrongful dismissal claim.

The motion to set aside the dismissal was denied.