Richelle M. Pollard

The plaintiff, a Global Strategic Client Executive earning approximately $760,000 annually, brought a motion for summary judgment for damages arising from his termination without cause by Oracle Canada ULC.

The court awarded 12 months of reasonable notice based on the Bardal factors, including the character of his specialized employment, his age (61), short length of service (3.7 years), and Oracle's failure to provide a meaningful letter of reference.

The court rejected Oracle's mitigation argument as unsupported by affirmative evidence.

The plaintiff was awarded damages for base salary, commissions (calculated on a three-year average), benefits (10% of base salary), and RRSP matching contributions (6% of base salary), less working notice and mitigation income.

The court also awarded punitive damages equal to the withheld commissions for Oracle's breach of the duty of good faith in failing to pay statutory entitlements during the notice period and maintaining an untenable legal position without explanation.

The court rendered a costs endorsement following the decertification of a class action.

The defendants, who were entirely successful in the decertification motion, sought substantial indemnity costs.

The court found the plaintiff's and class counsel's pursuit of the decertification motion to be excessive and unnecessary, particularly given that almost all class members had opted out.

Despite the plaintiff's argument that high costs would chill future class actions and cause financial disaster, the court emphasized the duty of counsel to avoid unnecessary litigation and the expectation of an indemnity agreement for class counsel.

The court awarded the defendants $100,000 in costs, a reduction from their requested amount but still an elevated level, acknowledging the disparity in costs incurred by both parties.

The defendants brought a motion to decertify a class action, arguing that a mass opt-out of 66 out of 69 potential class members meant the action no longer met certification criteria, particularly the "preferable procedure" requirement.

The plaintiff opposed, seeking further production and challenging the class list.

The court found the plaintiff's objections to the class list meritless and an abuse of process, given the late timing.

It held that with only one or a few remaining class members, the class action no longer served the goals of access to justice, judicial economy, or behavioral modification, as individual claims were economically viable and the class action could potentially harm the interests of those who opted out.

The motion to decertify was granted.

This case conference addressed three issues in a class action: the plaintiff's counsel's use of the defendants' corporate logo, the opt-out deadline for class members, and the defendants' communications with class members.

The court directed the plaintiff's counsel to cease using the logo to avoid confusion, set a revised opt-out deadline of April 3, 2022, and found no evidence of misconduct in the defendants' communications, noting that a high opt-out rate was foreseeable due to the nature of the claim.

This is a costs endorsement following Daniel Sherk's successful motion to compel production of backup tapes.

The court found that the plaintiffs failed to comply with disclosure obligations under the Rules of Practice and the Sedona Principles, necessitating Daniel Sherk to incur significant costs for an audit.

The court awarded Daniel Sherk substantial indemnity costs, including indemnification for the $200,000 paid to Deloitte for the audit, totaling $46,854.92 for the motion itself.

This endorsement addresses the plaintiff's request for partial indemnity costs following a successful motion for answers to undertakings and waiver of privilege.

The court found the plaintiff was justified in bringing the motion, and the defendants' resistance unnecessarily complicated the proceedings.

Applying Rule 57.01(1), the court awarded the plaintiff partial indemnity costs and assessed disbursements.

The defendant Daniel Sherk brought a motion to compel the plaintiffs (Verge Insurance Brokers Limited et al.) to produce remaining backup tapes and a revised affidavit of documents, and to indemnify him for costs incurred in reviewing previously produced tapes.

The court found that the plaintiffs had a positive duty to review and produce relevant documents from their backup tapes, as per a prior order by Quinn J. and the Sedona Principles.

The plaintiffs had failed to do so, despite earlier sworn statements by Mark Sherk.

The court ordered the plaintiffs to indemnify Daniel Sherk for the costs of Deloitte's prior work and to forthwith restore and review the remaining 66 backup tapes, producing an amended affidavit of documents.

The court also rejected the plaintiffs' arguments regarding leave to bring the motion and proportionality of costs, noting the high stakes of the litigation.

The plaintiff former employee brought a motion to compel the defendant employer to answer questions refused on discovery and produce documents over which the defendants claimed solicitor-client privilege.

The defendants had produced certain emails between their lawyer and a senior employee in their affidavit of documents and answered questions about them on discovery, later claiming the disclosure was inadvertent.

The court found the disclosure was not inadvertent and that the defendants could not selectively waive privilege to support their defence of acting in good faith while withholding other communications on the same issue.

The motion was granted, and the defendants were ordered to produce all related communications.

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

The plaintiffs brought a motion to stay the defendant's counterclaim pending the payment of approximately $138,000 in costs from previous unsuccessful motions, or alternatively, for an order requiring payment by a specific date.

The defendant sought an extension of 45 days to pay the costs, citing financial difficulties and an upcoming commercial closing that would provide funds.

The court balanced the need to enforce its orders with the context of the complex litigation and granted the defendant's request for an extension.

The court ordered that if the costs were not paid by the extended deadline, the counterclaim would be stayed.

The defendant brought a motion for leave to appeal to the Divisional Court from a prior decision dismissing his motion to vary the terms of an interim injunction issued on consent.

The court considered rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It concluded that the moving party failed to meet the required onus under either branch of the rule.

The issues raised, while important to the parties, were not of sufficient importance to justify appellate review.

Leave to appeal was therefore refused.

The defendant, Daniel Sherk, brought a motion to vary a consent interlocutory injunction that prohibited him from soliciting or servicing clients of his former employer, Verge Insurance Brokers Limited.

He sought to suspend and amend the injunction under Rules 59.06(2)(b) and (d) of the Rules of Civil Procedure, arguing that the restrictive covenants had expired and the court had inherent jurisdiction to vary the order.

The court dismissed the motion, holding that a consent order can only be varied on the same grounds as a contract can be rectified, and that the court's inherent jurisdiction cannot be used to circumvent the express provisions of the Rules or to upset a fairly negotiated bargain.

The plaintiffs brought motions for an interlocutory injunction and for production of documents against the defendants, who were former employees and a competing insurance brokerage.

The injunction motion was settled and the production motion was stayed.

The plaintiffs sought substantial indemnity costs of over $390,000, arguing the defendants unnecessarily lengthened the proceedings and engaged in wrongdoing.

The court found the injunction component of the action was effectively spent, justifying fixing costs payable forthwith rather than in the cause.

The court awarded partial indemnity costs of $255,237, apportioned equally among the three responding defendants, after making deductions for services not directly related to the motions.

Following an application proceeding, the court considered written submissions regarding costs.

The applicant argued that because the respondents had not objected to proceeding by way of application, the issue of costs should be determined by the trial judge.

The court agreed that the trial judge would be better positioned to assess any costs thrown away as a result of the application and noted that the record lacked sufficient evidence regarding the parties’ positions on the procedural choice.

The court therefore declined to determine costs at this stage.

Following an unsuccessful motion by the defendant to dismiss a contempt motion, the court addressed costs.

Although the defendant did not succeed on the motion, the court found merit in the defendant’s complaints regarding the organization and drafting of the plaintiffs’ materials, which were described as poorly organized and “reader hostile.” Applying Rule 57.01 of the Rules of Civil Procedure, the court considered the parties’ conduct and its impact on the duration and efficiency of the proceeding.

The court concluded that the plaintiffs’ conduct justified a costs award against them despite their success on the motion.

Costs of $7,000 were awarded to the moving party.

The defendant brought a motion to dismiss or stay a civil contempt motion arising from an alleged breach of a prior injunction restricting dealings with former firm clients.

The defendant argued the contempt motion lacked sufficient particulars, served no purpose because the underlying order had expired, and constituted an abuse of process.

The court held that although the materials were poorly organized and lacked clarity, the defendant had not demonstrated a complete absence of fair notice of the allegations.

The court also found that the expiry of the order did not eliminate the public interest in enforcing respect for court orders and that the high threshold for abuse of process had not been met.

The motion to dismiss the contempt proceeding was refused, but the plaintiffs were ordered to serve clear and concise particulars of the alleged contempt.

A former bank employee brought an application seeking payment of allegedly outstanding bonuses under a Restricted Share Unit plan following his resignation.

The employer denied liability on the basis that the plan provided for forfeiture of unvested units upon resignation.

The applicant argued that the forfeiture provision operated as an unreasonable restraint of trade and was unconscionable.

The court held that the evidentiary record was insufficient to determine whether the provision constituted an enforceable restraint of trade and concluded that the issues raised involved material factual disputes.

The court determined that the matter was not properly brought by way of application and directed that submissions be made regarding continuation of the proceeding as a trial.