REASONS FOR DECISION

Overview

[1] The Plaintiffs, Mark Doughty and 2604900 Ontario Inc., brought this simplified procedure action for claims arising from Mr. Doughty’s employment relationship with the Defendant, EcoPower Inc. and claims arising from the contractual relationship in the provision of services by Mr. Doughty’s company, 2604900 Ontario Inc., to EcoPower Inc.

[2] The action was not defended by either EcoPower Inc. or EcoPower LED Inc., with the result that these Defendant corporations were noted in default on October 26, 2020. The Plaintiffs brought a motion in writing for default judgment, in accordance with Rule 19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which I ordered be heard orally, granting leave to the moving party Plaintiffs to file supplementary material. The motion for default judgment was brought on notice to the Defendants, notwithstanding that they were noted in default.

[3] On the basis of the reasons that follow, I grant the Plaintiff 2604900 Ontario Inc. judgment against EcoPower Inc. in the amount of the Canadian currency equivalent of $45,219.71(USD), and I grant the Plaintiff Mark Doughty judgment against EcoPower Inc. in the amount of $19,550. The Plaintiffs are awarded costs of $11,063.08, all inclusive, and pre-judgment and post-judgment interest in accordance with ss. 127-129 of the Courts of Justice Act, R.S.O. 1990, c. 43.

A. THIS MOTION

[4] The moving party Plaintiffs brought this motion for default judgment in accordance with Rule 19.05:

19.05(1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.

[5] The Plaintiffs established the necessary condition for bringing this motion by filing the Registrar’s Requisition noting the Defendants in default on October 26, 2020. The noting in default was issued further to the Plaintiffs’ service on the Defendants of the Statement of Claim on June 4, 2020, and the Defendants’ default in taking any step in the defence of this action. The Defendants have been provided with notice of the Registrar’s Requisition noting them in default.

[6] Rule 19.02(3) provides that a party noted in default is not entitled to notice of any step in the proceeding, and need not be served with any document in the action, “unless the court orders otherwise”:

19.02(3) Despite any other rule, a defendant who has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action, except where the court orders otherwise or where a party requires the personal attendance of the defendant …

[7] The moving party Plaintiffs served the Defendants with their Motion Record on January 7, 2021, and served the Defendants with their Supplementary Motion Record, Supplementary Factum and endorsements, consistent with the “best practice” pertaining to motions for default judgment: Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, at paras. 13-17. I am satisfied, based on the affidavits of service that the Plaintiffs have filed, that the Defendants have received notice of this Motion for default judgment. By their failure to take any step in their defence, including their absence today, I conclude that the Defendants have no intention to defend.

[8] Rule 19.02(2) provides that a motion for default judgment must be supported by affidavit evidence where, like here, the claim is for unliquidated damages. The Plaintiffs have done so by tendering an affidavit sworn by Mr. Doughty on December 16, 2020; an amended affidavit of Mr. Doughty sworn January 22, 2021; a Supplementary Affidavit of Mr. Doughty sworn April 5, 2021; and the affidavit of a legal assistant in the office of the Plaintiffs’ counsel, sworn December 3, 2020.

[9] The affidavit evidence is necessary not only by reason of Rule 19.02(2), but also because even though a defendant noted in default is “deemed to admit the truth of all allegations of fact made in the statement of claim”, in accordance with Rule 19.02(1)(a), the Plaintiffs must establish an entitlement to judgment. The Ontario Court of Appeal has held that an inquiry into the plaintiff’s entitlement to judgment is not only appropriate, but also necessary: Canadian-Automatic Data Processing Services Ltd. v. CEEI Safety & Security Inc. (2004), 2004 44785 (ON CA), 192 O.A.C. 152 (C.A.); Segraves v. Fralick, 1951 97 (ON CA), [1951] O.R. 871 (C.A.).

[10] I will now turn to an analysis of the evidentiary record filed by the Plaintiffs.

B. FACTUAL BACKGROUND

[11] Mr. Doughty is the sole principal of 2604900 Inc. Mr. Doughty deposed that through 2604900 Inc. he provided services to EcoPower Inc. and to its division, EcoPower LED Inc. This was done through a contract that Mr. Doughty caused 2604900 Inc. to enter into with EcoPower Inc. on October 31, 2018 (the “2018 Contract”). The 2018 Contract had a one-year fixed term, and appointed Mr. Doughty as the Vice President, Sales, of EcoPower Inc. The compensation provided by the 2018 Contract included a monthly payment of $2,000(USD) payable to Mr. Doughty and payments to 2604900 Inc. in U.S. currency for fixed monthly amounts, an amount for each “US Agent signed under the agreement”, a 3% commission dependent on sales targets and a bonus.

[12] Mr. Doughty deposed that the 2018 Contract was supposed to renew in October 2019, but that EcoPower Inc. instead extended the 2018 Contract until January 31, 2020, at which time EcoPower Inc. offered, and Mr. Doughty accepted, a position of full-time employment effective February 1, 2020.

[13] Mr. Doughty swore that, on or about January 10, 2020, EcoPower Inc. presented him with a draft employment agreement, which was not executed by Mr. Doughty and EcoPower Inc. (the “Unexecuted Employment Agreement”). Mr. Doughty deposed that he began to work as a full-time employee with EcoPower Inc. on February 1, 2020, with the same position that he had since October 1, 2018, and with compensation consisting of a salary of $75,000 annually, commissions, a bonus and three weeks of paid vacation. Important to my analysis later regarding the issue of damages, Mr. Doughty does not explain the bonus that he claims entitlement to for employment post-February 2020.

[14] Mr. Doughty deposed that at the time that he began to work for EcoPower Inc. as a full-time employee on February 1, 2020, EcoPower Inc. owed 2604900 Inc. $55,219.71(USD) that was outstanding from the services provided during the term of the 2018 Contract, as extended. The Unexecuted Employment Agreement made provision for the payment by EcoPower Inc. to 2604900 Inc. of this outstanding amount of $55,219.71(USD) over 23 equal pay periods.

[15] Mr. Doughty deposed that his employment with EcoPower Inc. was terminated on March 20, 2020, without cause, without notice and without pay in lieu of notice. Mr. Doughty swore that he was not provided with any payments under the Employment Standards Act, 2000, S.O. 2000, c. 41. The Record of Employment tendered into evidence by Mr. Doughty identifies his employer as EcoPower Inc. and records his first day of employment as February 1, 2020 and his last day of employment as March 20, 2020.

[16] At the time of the termination of his employment with EcoPower Inc., Mr. Doughty was 61 years of age.

[17] On April 30, 2020, Mr. Doughty accepted a position as a Sales Manager with LuxLogic Lighting Inc., beginning May 1, 2020, earning a base salary of $60,000. He stated that he does not have group health benefits and that this new position “was not comparable to my position with the Defendant in both compensation, position and benefits”.

C. THE RELIEF SOUGHT

[18] During argument, the Plaintiffs abandoned their claims against the Defendant, EcoPower LED Inc., stating that it is not a juridical entity but rather a trade name. Accordingly, in determining the employment-related issues raised by this action, there was no need to consider whether EcoPower Inc. and EcoPower LED Inc. were common or related or associated employers: Downtown Eatery (1993) Ltd. v. Ontario (2001), 2001 8538 (ON CA), 54 O.R. (3d) 161 (C.A.).

[19] The Plaintiffs sought judgment against EcoPower Inc., for the following:

(a) 2604900 Inc. sought the Canadian currency equivalent of $45,219.71(USD) comprised of amounts said to be owing under the 2018 Contract, as extended, as follows:

a. 3% commission payment in the amount of $25,219.71(USD).

b. A bonus payment of $30,000(USD).

c. Credit for $10,000(USD) paid in January/ February 2020.

(b) Mr. Doughty sought wrongful dismissal damages in the amount of $45,000 and $50,000 for breach of the duty of good faith in contractual performance.

[20] I will address these claims in order.

D. CLAIMS BY 2604900 INC.

[21] Mr. Doughty established that EcoPower Inc. failed to pay 2604900 Inc. two amounts owing under the 2018 Contract, as extended: the 3% commission on all US generated sales up to the US sales target for 2019 of $850,000; and, a bonus payment of $30,000(USD).

[22] Regarding the commission obligation, the 2018 Contract provided as follows:

3% Commission on all US generated sales up to the US Sales Target for 2019 of $850,000, invoiced and paid directly to 2604900 Ontario Inc., owned and operated by Mark Doughty.

[23] Mr. Doughty produced evidence of total sales for the US of $1,120,796.21(CDN), of which 2604900 Inc. was entitled to receive 3% commission calculated at $33,623.88, which EcoPower Inc. and Mr. Doughty agreed would convert to $25,219.71(USD).

[24] Regarding the bonus payment, the 2018 Contract provided as follows:

If US Sales Targets achieved by December 31, 2019, an additional $30,000 US Funds bonus will be paid directly to 2604900 Ontario Inc., owned and operated by Mark Doughty.

[25] Mr. Doughty produced evidence in the form of a Sales Order Summary for the period January 1, 2019 to December 31, 2019, to support his affidavit evidence that the US Sales Target was achieved by December 31, 2019, entitling 2604900 Inc. to a bonus of $30,000(USD).

[26] The debt owed by EcoPower Inc. to 2604900 Inc. under the 2018 Contract was seen in the Unexecuted Employment Agreement, prepared on EcoPower Inc. letterhead, that acknowledged, in a section entitled “2019 Compensation Owing”, that EcoPower Inc. owed 2604900 Inc. $55,219.71(USD), consisting of $25,219.71(USD) in outstanding commissions and $30,000(USD) in outstanding bonus. The Unexecuted Employment Agreement called for this amount to be paid to Mr. Doughty over the course of 23 equal pay periods initiating in February 2020.

[27] Mr. Doughty swore that EcoPower Inc. paid 2604900 Inc. the amount of $10,000(USD) in or about January or February 2020, with the result that the outstanding balance owed to 2604900 Inc. was reduced to $45,219.71(USD). Mr. Doughty deposed that this amount remains outstanding.

[28] I am satisfied that the Plaintiffs have established an entitlement to Judgment in favour of 2604900 Inc. against EcoPower Inc. in the amount of the Canadian currency equivalent of $45,219.71(USD) representing amounts owed under the 2018 Contract. This foreign currency obligation shall be converted into Canadian currency in accordance with s. 121(1) of the Courts of Justice Act. I order that EcoPower Inc. shall pay 2604900 Inc. an amount in Canadian currency sufficient to purchase $45,219.71(USD) at a bank in Ontario listed in Schedule I to the Bank Act (Canada) at the close of business on the first day on which the bank quotes a Canadian dollar rate for the purchase of U.S. dollars before the day payment is received by 2604900 Inc., following the approach taken by other Courts in granting awards of foreign money obligations: Hollowcore Incorporated v. Visochi, 2016 ONCA 600, 351 O.A.C. 228, at paras. 69-72; Honey Bee (Hong Kong) Limited v. VitaSound Audio Inc., 2018 ONSC 5787, at para. 95, aff’d 2020 ONCA 629; Extreme Venture Partners Fund I LP v. Varma, 2019 ONSC 4459, at para. 7

E. CLAIMS BY MARK DOUGHTY

(a) The Employment Relationship

[29] In terminating Mr. Doughty’s employment on March 20, 2020, EcoPower Inc. did not provide Mr. Doughty with any notice of termination or pay in lieu of notice. Mr. Doughty’s entitlements resulting from this termination depend upon a determination of the length of his employment with EcoPower Inc.

[30] Section 54 of the Employment Standards Act provides that: “No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer” has either given the employee written notice, in accordance with ss. 57 or 58, or has complied with s. 61, in making a payment in lieu of notice. If Mr. Doughty’s employment with EcoPower Inc. were assessed only during the time that he was a full-time employee, specifically from February 1, 2020 to March 20, 2020, then Mr. Doughty would not have these s. 54 entitlements as his period of employment would be less than three months.

[31] Mr. Doughty submitted, however, that he was terminated after the provision of 17 months of service to EcoPower Inc, considering the time period from the inception of the 2018 Contract, on October 1, 2018, to termination on March 20, 2020. The Plaintiffs contended that 2604900 Inc., and Mr. Doughty as its sole officer and director, were dependent contractors of EcoPower Inc. and that the service provided by Mr. Doughty to EcoPower Inc. during the term of the 2018 Contract is a relevant factor in determining Mr. Doughty’s length of service and in calculating reasonable notice on termination. I accept these submissions, for reasons that I will now explain.

[32] In Cormier v. 1772887 Ontario Limited c.o.b. as St. Joseph Communications, 2019 ONSC 587, 53 C.C.E.L. (4th) 60, aff’d 2019 ONCA 965, Perell J. considered the wrongful dismissal claim of a contractor who later became an employee. Applying McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916, 256 O.A.C. 376, the first step was to determine the worker relationship: employer-employee; contractor-independent contractor; or contractor-dependent contractor: Cormier, at paras. 39-40. Having found that the relationship was as a contractor, Perell J., at para. 46, applied the factors identified by the Court of Appeal in McKee to differentiate between dependent and independent contractors: “(1) the extent to which the worker was economically dependent on the particular working relationship; (2) the permanency of the working relationship; (3) the exclusivity or high level of exclusivity of the worker’s relationship with the enterprise.” Applying Keenan v. Canac Kitchens Ltd., 2016 ONCA 79, 29 C.C.E.L. (4th) 33, he found, at paras. 46-47, that the more permanent and exclusive the contractor relationship, the more it should be classified as a dependent contractor relationship. Justice Perell concluded that the contractual working relationship of the employee prior to being hired as a full-time employee was as a dependent contractor and took this into consideration in establishing reasonable notice upon termination.

[33] I adopt and apply these principles. The fact that Mr. Doughty provided services to EcoPower Inc. from October 1, 2018 to January 31, 2020 through a corporation is relevant but not determinative of his status: Cormier, at para. 49. Mr. Doughty was the sole owner of 2604900 Inc., which provided services only to EcoPower Inc. during the times material to my analysis. The 2018 Contract named Mr. Doughty – not 2604900 Inc. – as EcoPower Inc.’s Vice-President of Sales, and provided for monthly payments to Mr. Doughty, directly, in addition to the payments to 2604900 Inc. But perhaps most telling, is that the terms of the October 2018 Contract and the Unexecuted Employment Agreement, both prepared on EcoPower Inc.’s letterhead, have substantively identical terms regarding Mr. Doughty’s position with EcoPower Inc., his responsibilities, his reporting obligations and employment terms. Substantively. Mr. Doughty’s employment relationship with EcoPower Inc. was a continuum from October 1, 2018 to March 20, 2020, even though the form of the relationship changed.

[34] I have also analysed whether the 2018 Contract should be excluded from my determination of Mr. Doughty’s length of service, and thereby for the purpose of fixing a reasonable notice period, because it was a one-year fixed term contract. I find that Mr. Doughty continued to provide services to EcoPower Inc., through 2604900 Inc., after the expiration of the 2018 Contract, and since there is no evidence of any qualifications being made, the 2018 Contract became an indefinite term contract terminable on reasonable notice, and thereby material to my assessment of length of service and reasonable notice upon termination: Leduc v. Canadian Erectors Ltd., 1996 8132 (Ont. S.C.), at paras. 13-16; Hale v. Innova Medical Ophthalmics Inc., 2018 ONSC 1551, at para. 228; Regiec v. Breezy Bend Country Club (1999), 1999 14166 (MB QB), 137 Man. R. (2d) 237 (Q.B.), at paras. 23-26.

[35] I conclude that Mr. Doughty, through 2604900 Inc. was a dependent contractor of EcoPower Inc. for the period from October 1, 2018 to January 31, 2020 and was then an employee of EcoPower Inc. from February 1, 2020 to the date of his termination on March 20, 2020. This entire period is pertinent to my assessment of Mr. Doughty’s length of service which, in my determination, was 17 months at the time of his dismissal.

(b) Damages for Wrongful Dismissal

[36] As an employee or dependent contractor dismissed without any advance notice of termination, Mr. Doughty is entitled to damages for breach of contract based on the employment income that he would have earned during the reasonable notice period, less any amounts recovered in mitigation: Cormier, at para. 54, citing Sylvester v. British Columbia, 1997 353 (SCC), [1997] 2 S.C.R. 315.

[37] In assessing the reasonable notice period, I will take into consideration Mr. Doughty’s length of service, the character of his employment, his age at the time of termination, and the availability of similar employment having regard to his experience, training and qualifications: Bardal v. Globe & Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145. The Court of Appeal has explained that flexibility is required in this analysis, which is “an art not a science”: Minott v. O'Shanter Development Company Ltd. (1999), 1999 3686 (ON CA), 168 D.L.R. (4th) 270 (Ont. C.A.), at paras. 62, 73, 77.

[38] The Court of Appeal has held that employees with upper management and executive positions favour longer notice periods: Love v. Acuity Investment Management Inc., 2011 ONCA 130, 277 O.A.C. 15, at paras. 20-21; Cronk v. Canadian General Insurance Co. (1995), 1995 814 (ON CA), 25 O.R. (3d) 505 (C.A.).

[39] The Plaintiffs submitted that, considering all Bardal factors, Mr. Doughty is entitled to no less than 6 months of pay in lieu of notice. They rely on Love, where the Court of Appeal substituted an award of 9 months of notice in the place of a trial judge’s determination of 5 months’ notice for 2.53 years of service by an upper management employee: see also Clark v. BMO Nesbitt Burns Inc., 2008 ONCA 663, 243 O.A.C. 235; Barton v. Rona Ontario Inc., 2012 ONSC 3809, 1 C.C.E.L. (4th) 32; Rodgers v. CEVA, 2014 ONSC 6583.

[40] In both the term of the 2018 Contract and as drafted in the Unexecuted Employment Agreement, Mr. Doughty was employed as a senior executive reporting monthly to the Executive Team, consisting of the S.V.P. of Business Development, President, shareholders and JV Partners. He was responsible for an important part of his employer’s business, involving “the company’s sales revenue position, sales revenue forecasts, identified market strategies, risks, technology advancements, competitive analysis and planning”. As a high-level employee, he is entitled to a longer notice period. His age, 61 at the time of termination, also favours a longer notice period.

[41] I accept that Mr. Doughty has established that a reasonable notice period arising from his provision of services to EcoPower Inc. as Vice President, Sales, in the period from October 1, 2018 to March 20, 2020 is 6 months’ pay in lieu of notice upon termination.

[42] Mr. Doughty swore that his compensation with EcoPower Inc. comprised a base salary of $75,000, plus commission entitlements of 3% on booked sales from January 1, 2020 to December 31, 2020 and .5% commission on booked sales as compensation for delayed payments from 2019. Mr. Doughty deposed that the booked sales for February and March 2020 were $300,000, and that his commission entitlement on this amount, at 3.5%, is $7,000(USD) which he claimed in its Canadian currency equivalent for that period of $9,100. I find that Mr. Doughty established these elements of compensation from his terminated employment on March 20, 2020.

[43] The Plaintiffs submitted that Mr. Doughy was also eligible to a bonus payment of $30,000(USD) arising from his employment with EcoPower Inc. after February 1, 2020. However, other than a broad statement that his employment compensation included a bonus, Mr. Doughty did not depose to the nature or amount of any entitlement to a bonus post-February 2020. He did not tender sufficient evidence on which a finding could be made regarding the computation or value of the bonus in his employment with EcoPower Inc. after February 1, 2020. As such, Mr. Doughty did not establish, on the evidence on this motion, a bonus entitlement for services to be provided after February 1, 2020.

[44] Mr. Doughty deposed that on April 30, 2020, he obtained a position of employment with LuxLogic Lighting Inc. as a sales manager, commencing on May 1, 2020, at a base salary of $60,000 a year. He stated that this position was not comparable to his position with EcoPower Inc., in terms of compensation, position and benefits, but he accepted the position in mitigation of his damages.

[45] I have thereby determined that Mr. Doughty has established a damage claim in wrongful dismissal in the amount of $19,550, derived as follows: (a) 1.5 months of compensation pre-mitigation in the amount of $10,512.50 (base salary of $75,000 and commission entitlement of $9,100 producing an annual compensation of $84,100, which equates to a monthly compensation of $7,008.33 multiplied by 1.5 months); and (b) 4.5 months of compensation net of mitigation in the amount of $9,037.50 (base salary of $75,000 less mitigation salary of $60,000 produces a net annual base salary loss of $15,000 and lost commission entitlement of $9,100 for total annual loss of $24,100, resulting in a monthly claim of $2,008.33 multiplied by 4.5 months).

(c) Claim for Damages for Breach of Duty of Good Faith

[46] The Plaintiffs claimed additional damages on the basis that EcoPower Inc. had breached the duty of good faith. The Plaintiffs relied only on Antidormi v. Blue Pumpkin Software Inc. (2004), 2004 30885 (ON SC), 35 C.C.E.L. (3d) 247 (Ont. S.C.J.). In Antidormi, the Court extended the reasonable notice period awarded to the employee on the wrongful dismissal by two months on its finding that the employer had acted in bad faith. The Plaintiffs submitted that I should similarly extend the reasonable notice period in this case from 6 months to 8 months, on the basis that EcoPower Inc. acted in bad faith in its termination of Mr. Doughty’s employment.

[47] In Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701, at para. 95, the Supreme Court held that bad faith conduct in the manner of dismissal can support an increase in the notice period. In applying Wallace, Laskin J.A. wrote, in Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 57 O.R. (3d) 813, at para. 37, that “a court may extend the notice period to compensate a dismissed employee for the intangible injuries to the employee's dignity and self-worth caused by the employer's unfair or bad faith manner of dismissal.”

[48] In support of its claim in breach of the duty of good faith, the Plaintiffs submitted that EcoPower Inc. failed to pay the commission entitlement to which the Plaintiffs were entitled arising from services provided in 2019, did not forewarn him of the termination, and induced Mr. Doughty to accept employment with EcoPower Inc. and give up other contractual opportunities. The evidence tendered on this motion falls short of the circumstances that gave rise to the finding of bad faith in Antidormi and, in my view, falls short of the principles set out in Wallace, for reasons that I will now explain.

[49] First, the delayed payment of commission was addressed through EcoPower Inc.’s agreement to provide an additional .5% commission entitlement, which I have taken into consideration and granted as part of the outstanding commission obligation (para. 42, above). Second, the Plaintiffs did not lead any evidence of unfair conduct on termination that resulted in intangible injury to Mr. Doughty, or evidence of any injury. Third, the bald assertion that Mr. Doughty was induced to accept a position with EcoPower Inc., foregoing other employment opportunities, was not particularized or substantiated in Mr. Doughty’s affidavit evidence.

[50] For these reasons, I decline to extend the reasonable notice period of six months because the Plaintiffs did not establish bad faith conduct on the part of EcoPower Inc. sufficient to support any such finding.

(d) Costs

[51] The Plaintiffs claimed costs of this action and this motion in the amount of $14,275.11, all-inclusive of legal fees, disbursements and applicable taxes, on a substantial indemnity basis, or in the amount of $11,063.08, all-inclusive on a partial indemnity basis.

[52] The Plaintiffs were successful in this action and in this motion and are thereby entitled to an award of costs because absent special circumstances, “costs follow the event”: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 111 D.L.R. (4th) 589 (Ont. C.A.); Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal denied, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, at para. 4.

[53] An award of costs on a substantial indemnity basis is available only in rare and exceptional circumstances: by operation of an offer to settle under Rule 49, or to sanction egregious conduct meriting disapproval: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, citing Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 28. The Plaintiffs have not established such conduct in this case.

[54] In analyzing the partial indemnity costs sought by the Plaintiffs, I find that the hourly rates are within a proper range for costs at this level, and that the number of hours billed are reasonable. The disbursements have been itemized. The amounts set out in the Cost Outline for partial indemnity costs are fair, reasonable and proportionate, as required in the assessment of costs: Barbour v. Bailey, 2016 ONCA 334, at para. 9; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.

[55] Having considered all applicable principles, in the exercise of my discretion I have determined that it is fair, reasonable and proportionate to award the Plaintiffs costs, on a partial indemnity basis, payable by EcoPower Inc., in the amount of $11,063.08, all inclusive.

(e) Pre-Judgment and Post-Judgment Interest

[56] I grant the Plaintiffs pre-judgment interest and post-judgment interest on the amounts awarded in accordance with ss. 127-129 of the Courts of Justice Act.

F. DISPOSITION

[57] For the above Reasons:

(a) The Plaintiff, 2604900 Ontario Inc., is awarded judgment against EcoPower Inc. in the Canadian currency equivalent of $45,219.71(USD). Pursuant to s. 121(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, payment shall be made in Canadian dollars sufficient to purchase the U.S. dollar amount of $45,219.71(USD) at a bank in Ontario listed in Schedule I to the Bank Act, S.C. 1991, c. 46, at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of U.S. dollars before the day payment is received by 2604900 Ontario Inc.

(b) The Plaintiff, Mark Doughty, is awarded judgment against EcoPower Inc. in the amount of $19,550.

(d) The Plaintiffs are awarded pre-judgment interest and post-judgment interest on the amounts of this judgment, in accordance with ss. 127-129 of the Courts of Justice Act.

A.A. Sanfilippo J.

Date: May 31, 2021

COURT FILE NO.: CV-20-641806

DATE: 20210531

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK DOUGHTY and 2604900 ONTARIO INC

Plaintiffs

– and –

ECOPOWER INC. and ECOPOWER LED INC.

Defendants

REASONS FOR DECISION

A.A. Sanfilippo J.

Date: May 31, 2021

Mark Doughty v. EcoPower Inc., 2021 ONSC 3923

Case Summary

REASONS FOR DECISION

Overview

A. THIS MOTION

B. FACTUAL BACKGROUND

C. THE RELIEF SOUGHT

D. CLAIMS BY 2604900 INC.

E. CLAIMS BY MARK DOUGHTY

(a) The Employment Relationship

(b) Damages for Wrongful Dismissal

(c) Claim for Damages for Breach of Duty of Good Faith

(d) Costs

(e) Pre-Judgment and Post-Judgment Interest

F. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 4