Peter MacTavish

On appeal from a summary judgment order in a wrongful dismissal action, the Court of Appeal considered whether an employee's pre-acquisition service could be waived for purposes of calculating statutory termination and severance pay under the Employment Standards Act.

The employee was hired in 1980 by Bakermet, became a one-third owner, and received $17.16 million when the company was sold to ArcelorMittal in 2008.

He continued employment under successive fixed-term agreements until termination in 2015 at age 58.

The motion judge found the employee had waived pre-2008 service and was limited to six months' notice under the 2014 employment agreement.

The Court of Appeal reversed, holding that statutory entitlements cannot be waived, that the termination clause violated the Employment Standards Act, and that the employee was employed on an indefinite basis despite fixed-term language.

The court also rejected the employer's counterclaim for breach of restrictive covenants and fiduciary duties.

Following a summary judgment motion where the plaintiff was awarded $92,500 for wrongful dismissal and successfully defeated the employer's counterclaim regarding restrictive covenants, the plaintiff sought partial indemnity costs of $168,646.51.

The defendant argued no costs should be awarded as the damages matched their termination offer, and that the costs claimed were disproportionate.

The court found the plaintiff was substantially successful, noting the importance of defeating the restrictive covenants, and awarded the plaintiff all-inclusive costs of $150,000.

The plaintiff, Steven Kerzner, brought a motion for summary judgment in a wrongful dismissal action against American Iron & Metal Company Inc. (AIM).

Kerzner sought common law notice based on 35 years of service, arguing that termination provisions and restrictive covenants in his fixed-term employment contracts were invalid and unenforceable.

AIM counterclaimed for breach of non-solicitation and non-competition clauses and fiduciary duties.

The court found that the termination provisions were valid based on a 2008 release limiting service to 7 years for ESA purposes, but the non-competition and non-solicitation clauses were unreasonable and unenforceable given the fixed-term nature of the contract and broad geographic scope.

The court dismissed AIM's counterclaim for breach of restrictive covenants and fiduciary duty, and held that Kerzner was entitled to the contractual termination payment without a duty to mitigate.

The defendant brought a motion to strike out the plaintiff's jury notice, arguing it was served after the close of pleadings.

The plaintiff had amended her statement of claim multiple times, adding claims for defamation, breach of contract, and bad faith, and significantly increasing the damages sought.

The court found that the substantial amendments fundamentally altered the nature of the claim, meaning the pleadings were not closed when the jury notice was served.

The motion to strike the jury notice was dismissed.