Stanislav Fainzilberg

The appellant employer appealed a trial decision finding it had constructively dismissed the respondent employee and rejecting its argument that the employment contract was frustrated by the employee's physical limitations.

The Court of Appeal upheld the finding that the contract was not frustrated, as the employee's limitations were temporary and could be accommodated.

However, the Court allowed the appeal in part, deducting damages awarded for the loss of use of a company tow truck and cellphone, finding they were work tools rather than personal employment benefits.

The plaintiff, Gerry VandePol, brought an action for wrongful dismissal against the defendant, Cowan Buick GMC Limited.

The defendant admitted dismissal without cause, leaving the notice period and mitigation as the main issues.

The court determined a reasonable notice period of 6 months, calculated at an annual salary of $50,000, after considering the plaintiff's age, length of service, position, and difficulty in finding comparable employment.

The court also found that the defendant failed to prove the plaintiff did not make adequate efforts to mitigate.

The plaintiff was awarded $19,974 after deducting termination pay.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, claiming constructive dismissal due to a temporary layoff after 23 years of employment.

The court found that the temporary layoff constituted constructive dismissal as there was no contractual right for the employer to implement such a layoff.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a bona fide recall offer from the employer, which included assurances of no reprisals and substantially similar terms of employment.

The plaintiff's subjective belief of embarrassment or degradation was not objectively supported.

Consequently, the plaintiff's damages were limited to the period between the layoff and the recall offer.

The appellant employer appealed a summary judgment order awarding the respondent employee nine months' pay in lieu of reasonable notice for wrongful dismissal.

The appellant argued the motion judge erred by failing to draw an adverse inference regarding the respondent's medical evidence and by applying an incorrect legal standard to the duty to mitigate.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent's medical condition prevented a serious job search, and no error of law in the application of the duty to mitigate.

The plaintiff, an 18-year employee, was on an unpaid medical leave of absence when the defendant employer provided working notice that it was shutting down operations.

The plaintiff remained unable to work for most of the notice period.

The plaintiff brought a motion for summary judgment for wrongful dismissal damages.

The court held that the plaintiff was entitled to damages for the salary he would have earned during the notice period, despite being unable to work.

The court set the reasonable notice period at 12 months and found the plaintiff had reasonably mitigated his damages by finding comparable employment shortly after the business closed.

The 74-year-old plaintiff brought a wrongful dismissal action after 31 years of service with the defendant construction company.

The defendant claimed the plaintiff had voluntarily retired in 2010 and was only working on an as-needed basis.

The court found no evidence of retirement and concluded the plaintiff was terminated without cause in October 2012.

Applying the Bardal factors, the court awarded 20 months' pay in lieu of notice, finding the plaintiff was not required to mitigate by accepting a demeaning demotion to a flagman position.

The plaintiff moved for summary judgment alleging wrongful dismissal and breach of contract, arguing her employment was for a fixed term of one year.

The defendant contended it was an indefinite term.

The court found the employment contract, comprising an email and an attached agreement, clearly established a one-year fixed term.

Consequently, the plaintiff was entitled to damages for the unexpired term without mitigation.

The motion for summary judgment was granted.

An employee dismissed without cause brought a summary judgment motion seeking determination of the reasonable notice period for wrongful dismissal damages.

The court applied the Bardal factors including age, length of service, character of employment, and availability of comparable employment.

For a 39‑year‑old employee with 17 years of service whose position had been replaced by automation, the court fixed reasonable notice at 14 months.

Because the motion was decided before the expiry of the notice period, the court addressed the treatment of mitigation and adopted the “trust and accounting” approach, requiring the employee to account for any mitigation income earned during the remaining notice period.

The employee’s mitigation efforts to date were found to be reasonable.