Paul S. Schwartzman

The parties sought costs following three segments of the discovery process, including motions for undertakings and refusals.

The plaintiff claimed misappropriation by a former employee who started a competing business, while the defendant counterclaimed for wrongful dismissal.

The Master awarded partial indemnity costs to the plaintiff for its successful refusals motion, partial indemnity costs to the defendants for their refusals motion (deferring expert costs to the trial judge), and ordered costs in the cause for both parties regarding a third motion involving aborted discoveries.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action following termination without cause.

The employer relied on an employment contract purporting to limit termination entitlements to those provided under the Employment Standards Act, 2000 and to exclude any common law damages.

The court held the termination clause was unenforceable because it limited compensation to salary and failed to ensure continuation of benefits during the statutory notice period, contrary to s. 61(1) of the ESA and therefore void under s. 5(1).

As a result, the plaintiff was entitled to pursue common law reasonable notice.

The court determined that prior service with the predecessor company following insolvency and a CCAA restructuring should not be credited for common law notice purposes and awarded eight months’ reasonable notice.