Stephen M. Gillman

The court considered a motion by the plaintiffs to extend the time to set their action down for trial under Rule 48.14(5) of the Rules of Civil Procedure.

The plaintiffs, alleging wrongful dismissal and related claims, faced delays due to both parties’ conduct, changes in counsel, and the COVID-19 pandemic.

The court found the plaintiffs provided an acceptable explanation for the delay, much of which was attributable to inadvertence and file management issues at counsel’s firm, and that the defendants would not suffer non-compensable prejudice if the action proceeded.

The court granted the extension and imposed a timetable for the remaining steps.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The plaintiff, a 54-year-old employee with 21 years of service, brought an action for wrongful dismissal.

Following a summary judgment motion, a mini-trial was held to determine the plaintiff's character of employment, reasonable notice, and mitigation efforts.

The court found that despite his title, the plaintiff did not hold a management position.

Applying the Bardal factors, the court set the reasonable notice period at 18 months.

However, the court reduced the notice period by two months because the plaintiff failed to mitigate his damages by using an inaccurate resume to apply for incomparable senior management positions.

The plaintiff, Kevin Skov, brought a motion for summary judgment in his wrongful dismissal action against G&K Services Canada Inc. and G&K Services, Inc. The central dispute revolved around the plaintiff's character of employment, which was relevant to both the reasonable notice period and the plaintiff's mitigation efforts.

The court found that there was a genuine issue requiring a trial regarding the character of employment and its impact on mitigation, which could not be resolved using the enhanced summary judgment powers without further fact-finding.

Consequently, the court ordered a mini-trial on the issue of the plaintiff's character of employment.

The court determined costs following a 6-day trial where the plaintiff, Keith Cordeiro, was found to have stolen money from the defendant, Pinnacle Caterers Ltd., leading to his justifiable termination.

The defendant sought substantial indemnity costs, citing a Rule 49 offer to settle on a mutual walk-away basis, which the plaintiff repeatedly refused.

The plaintiff argued inability to pay and disproportionality of costs to the amounts in issue.

The court rejected these arguments, emphasizing the plaintiff's conscious decision to proceed to trial despite knowing the financial implications and the defendant's reasonable settlement offer.

The court awarded the defendant substantial indemnity costs, rounded down to an all-inclusive amount of $150,000, pursuant to Rule 49 and section 131 of the Courts of Justice Act.

This wrongful dismissal trial addressed whether the plaintiff, a system supervisor, stole money from the defendant catering company.

The defendant terminated the plaintiff for cause, alleging theft of cash payments.

The parties agreed that if theft was proven, just cause was established, and the defendant would receive $15,000 on its counterclaim; otherwise, the plaintiff would receive $29,827.53 for wrongful dismissal.

The court found that the plaintiff had indeed stolen $412.39 by manipulating the point-of-sale system to void cash transactions and transfer them to a "test check" to hide the theft.

The defendant's investigation, though not protracted, was deemed effective and accurate.

The plaintiff's claim for wrongful dismissal was dismissed, and the defendant's counterclaim for $15,000 was granted.