Stephen F. Gleave

The court found that King Ursa Inc. constructively dismissed Joanna S. McFarlane by demoting her and reducing her salary after her return from maternity leave.

The employer failed to prove that McFarlane did not mitigate her damages.

The court awarded her twelve months’ notice, calculated damages, and moral damages for the insensitive handling of her employment, but declined to find discrimination or award punitive damages.

This decision concerns a dispute between Sound Insurance Services Inc. and Chris Hossein, a former insurance producer, and his new employer, Greensides & Breen Insurance Brokers Limited.

The case addresses breach of contract, inducement of breach, breach of confidence, and civil conspiracy arising from the failed transfer of a book of business.

The court found Mr. Hossein liable for breach of contract and breach of confidence, and Greensides liable for inducing the breach.

Damages were assessed at $350,000, plus interest and costs.

The decision addresses a motion by Greensides & Breen Insurance Brokers Limited to compel Sound Insurance Services Inc. and Chris Hossein to answer certain refused questions and to provide further and better answers to undertakings arising from examinations for discovery.

The court found that Greensides did not require leave to bring the motion, refused to compel answers to the disputed questions, but ordered Sound to provide more detailed responses to five undertakings.

This appeal concerned the enforceability of a restrictive covenant in the context of a dentistry practice sale.

The appellants, Dr. Cooke, 6326471 Canada Inc., and Dr. B. Zaricniak Dentistry Professional Corporation, challenged a five-year, 15 km non-competition covenant after Dr. Cooke terminated his association and began working at a nearby practice.

They argued the trial judge erred in applying the burden of proof and in finding the covenant's duration and geographic scope reasonable.

The Court of Appeal dismissed the appeal, affirming that restrictive covenants in commercial contexts are presumed valid and attract less scrutiny than in employment, and upheld the trial judge's assessment of the covenant's reasonableness.

On the first day of trial, the Plaintiff brought a motion seeking the production of redacted portions of an email and a non-disclosed attachment, which the Defendants claimed were protected by solicitor-client privilege.

The court found that the Defendants' use of boilerplate language for Schedule "B" in their affidavits of documents did not comply with Rule 30.03(2)(b) of the Rules of Civil Procedure, as it failed to provide sufficient information to challenge the privilege claim.

The court ordered the Defendants to immediately provide a detailed description of the documents, including their nature, sender, receiver, and the specific grounds for the claimed privilege, to enable the Plaintiff to properly assess and potentially challenge the privilege or argue implied waiver.

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 is an appeal from a trial judgment concerning a breach of an employment contract.

The appellants, Verge Insurance Brokers Ltd. and Mark Sherk, challenged the trial judge's findings on liability and damages.

The core dispute revolved around the interpretation of a contractual provision allowing the respondent, Ryan Lindsay, to purchase his book of business upon resignation.

The Court of Appeal upheld the trial judge's conclusion that Verge breached the contract by failing to provide accurate account information and sufficient time for Lindsay to close the transaction.

The court affirmed the trial judge's damages award, applying a standard of substantial deference to contractual interpretation and factual findings on loss of profits.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning damages for conversion of a "book of business" in the transportation insurance industry.

The trial judge had found conversion of one book (TRIP book) but not another (Kimberly book), and did not fully address other causes of action like breach of contract, breach of confidence, and fiduciary duty.

The Court of Appeal found that the trial judge's conversion analysis was flawed, particularly regarding the nature of intangible property and the sufficiency of findings.

It also held that the trial judge erred by not separately addressing the other pleaded causes of action.

Consequently, the Court allowed both the appeal and cross-appeal, set aside the trial decision, and ordered a new trial on all causes of action.

In Phase III and IV of a trial concerning a Share Purchase Agreement, the court determined whether the 'Lower Threshold' used to calculate a deferred payment could be adjusted downwards due to the constructive dismissal of employees.

The court held that the plain wording of the agreement only permitted deductions from the Target EBITDA, not the Lower Threshold, and declined to imply a term.

On costs, the court ordered the plaintiff to repay $124,708.37 in fees advanced for a derivative action, awarded the defendants $10,000 for a production motion, and ordered the parties to bear their own costs for the main actions due to mixed success.

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.

The plaintiff withdrew its motion for an interlocutory injunction regarding the alleged misappropriation of confidential information by former employees.

The defendants sought costs of the abandoned motion on a substantial indemnity scale under Rule 37.09(3).

The court exercised its discretion to order costs in the cause, finding that the plaintiff acted reasonably in pursuing the injunction initially and that the work done on the motion would be useful at trial.

This decision encompasses the Phase II supplementary reasons and the appended Phase I trial reasons regarding a dispute over a Share Purchase Agreement (SPA) for an insurance brokerage.

In Phase I, the court found that the defendants breached the SPA and acted oppressively by constructively dismissing key employees, which negatively impacted the target EBITDA.

The court also ruled that any reduction in the purchase price for failing to meet the target EBITDA was limited to the value of the Preferred Shares.

In Phase II, the court adopted the parties' joint submissions resolving the remaining factual and legal issues regarding specific EBITDA adjustments, directing the parties to proceed to Phase III to calculate the final deferred payment.

The appellant employer terminated the respondent's employment and made several termination-related payments, including a mistaken payment in November 2018.

The parties subsequently attended mediation and executed minutes of settlement requiring the employer to pay $150,000 'in addition to amounts already paid'.

The employer's representatives at mediation were unaware of the November payment and later sought to deduct it from the settlement amount.

The motion judge enforced the settlement, finding no ambiguity and no fraud by the respondent regarding the employer's unilateral mistake.

The Court of Appeal dismissed the appeal, holding that the subjective, uncommunicated knowledge of the employer's representatives did not form part of the factual matrix for contractual interpretation.

The applicant, Richard Sherk, brought a motion for an interim payment out of court of funds held to the credit of the action.

The respondent, Mark Sherk, opposed the motion, arguing that the funds served as a 'cushion' for potential damages he might be awarded and that further reduction would be prejudicial.

The court granted the applicant's motion, finding the respondent's arguments without merit, consistent with prior decisions and the Divisional Court's ruling that the respondent had no right to the funds as security ahead of judgment.

The plaintiff sold its shares in a specialized transportation insurance broker to the defendant under a Share Purchase Agreement.

The agreement included a deferred payment for preferred shares, which could be reduced if the company failed to meet an earnings target during a three-year warranty period.

The company failed to meet the target, and the plaintiff brought an action for oppression and breach of contract, alleging the defendant sabotaged the earnings by constructively dismissing key employees and misallocating commissions.

The court found that the defendant constructively dismissed two key salespeople and acted oppressively, breaching the plaintiff's reasonable expectations.

The court ruled that any reduction in the purchase price was limited to the preferred shares and awarded the plaintiff credits for certain misallocated commissions, while reserving other issues for further submissions.

The plaintiff employer sued two former salespeople and their new employer for breach of fiduciary duty and breach of confidence after the employees resigned and began soliciting the plaintiff's customers.

The defendants brought a motion for summary judgment to dismiss the action.

The court found that the former employees were ordinary salespeople with no managerial power or discretion, and therefore were not fiduciary employees.

The court also found no evidence that the employees misappropriated or misused any confidential information.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff in a wrongful dismissal action brought a motion for the production of documents related to the defendant's recruitment process for a Co-Head of M&A. The plaintiff alleged the hiring of the new Co-Head amounted to a demotion and constructive dismissal.

The court found the recruitment documents relevant to the plaintiff's allegations but limited production to documents concerning the successful candidate and one other top candidate to balance relevance with the privacy interests of non-parties and the principle of proportionality.

This endorsement addresses costs for a motion brought by Daniel Sherk, seeking to compel Verge Insurance Brokers Limited to pay the balance of Deloitte's forensic accounting fees.

Daniel Sherk was unsuccessful in his motion.

The court awarded Verge partial indemnity costs, fixing them at $37,500.00, significantly less than the $79,629.31 requested on a substantial indemnity basis.

Additionally, Verge was awarded $1,500.00 for its involvement in Deloitte's separate application for payment.

The court emphasized reasonableness and proportionality in fixing costs, noting that the motion was uncomplicated and senior counsel's time appeared inordinate.

Deloitte, a forensic expert, brought a motion for costs against Daniel Sherk for an outstanding account, following a prior ruling that established Sherk's responsibility for the balance.

Sherk had agreed to judgment for the amount owed but disputed the basis and quantum of costs.

The court found Sherk's opposition was not "reprehensible, scandalous, or outrageous" to warrant substantial indemnity costs or sanctions.

The court awarded Deloitte costs on a partial indemnity basis, reducing the requested amount from $27,546.00 to $17,500.00, considering proportionality and Deloitte's failure to respond to Sherk's offer.