24 the New 36? Court of Appeal Reaffirms Presumptive Ceiling in Reasonable Notice Case

Mahdi Hussein, B.A. (Hons.), JDAppeals, Employment, Employment & Wrongful Dismissal0 Comments

In Dawe v. The Equitable Life Insurance Company of Canada, the Ontario Court of Appeal held that, absent exceptional circumstances, the presumptive ceiling for reasonable notice is 24 months. In Dawe, the plaintiff was a Senior Vice President of an insurance company and was terminated after 37 years of employment without cause, following a minor dispute relating to the purchase and use of promotional sporting event tickets. As a result, the plaintiff sued his employer for wrongful dismissal. Both the plaintiff and his employer moved for partial summary judgment on two issues: (1) the calculation of the proper notice period, and (2) the plaintiff’s entitlement to his employer’s bonus plan, at para 4. The plaintiff was successful on the motion for partial summary judgment and the motion judge determined that 30 months was the appropriate notice period and that the plaintiff was entitled to his bonus during this period. In … Read More

Tests for Intentional Infliction of Mental Suffering and Constructive Dismissal clarified by the Ontario Court of Appeal in Colistro v Tbaytel

Yona Gal, J.D., LL.MAppeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments

In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Appeal: Intentional Infliction of Emotional Suffering In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness. Objective vs Subjective Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only … Read More

A Successful Constructive Dismissal Claim in Hagholm v. Coerio Inc.

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Contract Disputes, Contract Termination, Employment, Employment & Wrongful Dismissal, Summary Judgment, Wrongful Dismissal0 Comments

Constructive dismissal occurs when an employee is indirectly and effectively dismissed from the position or terms he/she had previously agreed formed the employment. Without the consent of the employee, a substantial alteration is presented that fundamentally changes the terms of the agreed upon contract. Hagholm v. Coerio Inc. represents a successful claim for constructive dismissal. The respondent had entered into her employment on the understanding that she could work from home three days a week. When this condition was changed, the respondent claimed constructive dismissal and ceased coming to work. The Motion Judge, on a motion for summary judgment, found that there was constructive dismissal because this was an essential term and the appellant arbitrarily withheld a bonus from the respondent. The Court of Appeal also confirmed that the respondent was not required to mitigate her damages for the appellant’s breach of contract in these circumstances. Also in this case, the … Read More

Court of Appeal Considers Ontario Labour Relations Board’s Jurisdiction, Limitation Periods in Class Actions

Peter Neufeld, B. Soc. Sc., J.D.Administrative Law, Appeals, Civil Litigation, Class Action Defence, Commercial, Employment, Employment & Wrongful Dismissal, Jurisdictional Challenges, Tribunals, Wrongful Dismissal0 Comments

In United Food and Commercial Workers Canada, Local 175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671 (“Quality Meat Packers”), the Ontario Court of Appeal considered (1) the Ontario Labour Relations Board’s (“OLRB”) jurisdiction to decide claims related to the wrongful dismissal of unionized employees; and (2) whether, in proposed representative proceedings under Rules 12.08 and 10.01, representation orders must be obtained during the limitation periods for the individuals’ claims.

Toronto Lawyers for Breach of Non-Compete or Non-Solicit Clauses

Bianca Thomas, B.Sc.(Hons.), J.D.Breach of Confidentiality Agreement, Breach of Confidentiality Clause, Breach of Non-Competition Agreement, Breach of Non-Competition Clause, Breach of Non-Solicitation Agreement, Breach of Non-Solicitation Clause, Commercial, Commercial and Contract Litigation, Confidentiality Agreement, Confidentiality Clause, Contract Disputes, Employment, Employment & Wrongful Dismissal, Injunction & Specific Performance, Non-Compete, Non-Competition Agreement, Non-Competition Clause, Non-Solicitation Agreement, Non-Solicitation Clause0 Comments

Our lawyers can advise and represent employers or purchasers of a business regarding the enforcement of non-compete, non-solicit clauses or confidentiality agreements. An employer or purchaser of a business who wishes to enforce a restrictive covenant can pursue an interim injunction from the Court, which prohibits the employee from breaching the covenant. Various types of injunctions may be sought, including: Injunctions enforcing post-termination restrictive covenants; Injunctions preventing the use of the employer’s confidential information. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. An employer or purchaser of a business can also seek damages following an employee’s breach of a covenant if there is particular loss tied to the breach. Why Gilbertson Davis LLP? Our team of lawyers are leading practitioners and provide sound advice and effective representation in time sensitive matters. When … Read More

Court Sets Out Notice Period to Terminate Franchise Agreement

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Employment & Wrongful Dismissal, Franchise Law0 Comments

The Ontario Superior Court in France v. Kumon Canada Inc. considered the appropriate notice period required to terminate a franchise agreement, in this case in respect to a Kumon tutoring franchise.   Kumon terminated the franchise agreement with 12 months’ notice.  The Plaintiff had successfully run the franchise for 20 years.  There was no franchise agreement in place (as the franchise was entered into by oral agreement 20 years earlier when their franchise agreements were not in writing).  The Plaintiff sued Kumon for damages, arguing that her franchise was perpetual and could not be terminated. Kumon argued that the franchise agreement could be terminated on reasonable notice, and brought a motion for summary judgment.  The Court granted Kumon summary judgment, but asked for further submissions regarding the proper notice period. The Court noted that there were no cases directly on point. The Court accepted that a franchise relationship is close to an employer/employee relationship.  However, … Read More

Court Stays Action in Favour of Mexico Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Employment & Wrongful Dismissal0 Comments

In Kavanagh v. Magna, the Plaintiff alleged that he was wrongfully dismissed by his Mexican employer.  The Plaintiff sued an Ontario affiliate company of his Mexican employer in the Ontario Courts.  The Plaintiff had also brought an arbitration proceeding against his Mexican employer in the Mexico.  The Defendants sought to have the Ontario action dismissed on the grounds that the Ontario Courts lacked jurisdiction of over the dispute.  The Ontario Court applied a two part test considering i) whether it had jurisdiction, and ii) whether it should assume jurisdiction. i) The Ontario Court found that the dispute did not have a “real and substantial connection” to Ontario: the Plaintiff signed his employment contract in Mexico, worked in Mexico, and was terminated in Mexico.   There was also a clause in his employment contract agreeing to resolve disputes in accordance with the laws of Mexico.   Nevertheless, the Judge found that the Ontario … Read More

Court Grants Summary Judgment in Employment Dispute

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Employment, Employment & Wrongful Dismissal, Summary Judgment, Wrongful Dismissal0 Comments

In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause.  The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process.  The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues.  The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues.  She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More

Summary Judgment in Wrongful Dismissal Action in IT Sector

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorBusiness Litigation, Civil Litigation, Commercial Litigation, Contract Disputes, Contract Termination, Employment, Employment & Wrongful Dismissal, Information Technology, Start-Up Disputes, Summary Judgment, Technology and Internet, Wrongful Dismissal0 Comments

The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7) In considering the issue the court considered the: Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken … Read More