The recent decision of the Ontario Superior Court in Barton v. Rona Ontario Inc. sheds interesting light on an issue relating to wrongful dismissal that is rarely articulated.  That issue has to do with the difference between the way in which a company assesses misconduct and its need to respond in a way which sends an appropriate message to its other employees, on the one hand, and the analysis that a court will undertake in assessing the situation, on the other hand.

The Court will not consider the totality of the business reasons why an employer might wish to terminate an employee.

In this case, Mr. Barton was an assistant store manager at a Rona hardware store in Barrie, Ontario. 

In April, 2009, a computerized training program was scheduled to take place at the training centre at the store.  The training centre was on the second floor and not accessible by individuals in wheelchairs. 

One of the store’s employees was a Mr. Malmstrom, who was wheelchair-bound.  He wanted to attend the seminar and the management team at the store wanted to accommodate him.  Unfortunately, there was no conventional way of bringing him up to the second floor of the store.  Continue reading →

When I first started receiving referral work from American lawyers many years ago, I became aware that for the most part, American litigants are responsible for bearing their own legal costs.  I found many American lawyers surprised to find that this is not the case in Ontario. 

As Canadian litigants are well (and often painfully) aware, a court will have discretion at the end of a case to award costs as it sees fit.  In almost every case, costs are awarded in favour of the successful party. 

What is less commonly understood by non-lawyers is that “costs” to be paid by the losing party is not the same as requiring the losing party to pay all of the winning party’s legal expenses.  The normal rule is that the loser must pay what is referred to as partial indemnity costs – roughly a percentage, usually between 50% and 2/3, of the winning party’s legal expenses. 

This rule applies not only to cases that have been concluded by a trial, but also to motions.  Typically, the winner of a motion is also entitled to partial indemnity costs.  Continue reading →

The recent Superior Court decision of Chen v. Stafford, released on July 4, 2012, contains an interesting review of the law of adverse possession and particularly the impact of mutual mistake in adverse possession cases. 

What is the result if both the claimant and the true owner are genuinely under the impression that the disputed land actually belongs to the claimant, i.e. the true owner does not realize the disputed land is included within his title.

I have conducted a number of trials involving adverse possession claims.  I have thoroughly enjoyed them.  They usually require all kinds of investigative work as part of the preparation for trial, including the obtaining of testimony from elderly people who seem to remember where a fence was put up or taken down decades earlier, or the approximate time that a particular oak tree was planted. 

I have always been struck by the extent to which neighbouring land owners, usually on a country lake with 200 feet of property along the shore, will spend weeks in court and tens of thousands of dollars litigating over a 2 foot strip running along their mutual boundary. 

In any event, Chen v. Stafford was a case involving a disputed area between neighbouring parcels of land fronting on the St. Lawrence River in the Kingston, Ontario area.  The Applicants brought the proceeding for an Order declaring that they had acquired title to the disputed area by virtue of their exclusive use and possession of the area for over 50 years.  Continue reading →

In the interesting case of Indcondo Building Corporation v. Sloan, released July 18, 2012, the Ontario Court of Appeal dealt with a situation in which a couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance. 

In 2001, Indcondo Building Corporation obtained a judgment against one David Sloan for about $8 million.  After obtaining the judgment, Indcondo found out that Mr. Sloan had transferred title to his home to his wife about 45 days after having been served with the Statement of Claim issued by Indcondo. 

A couple attempted to use the bankruptcy process to avoid an action attacking the husband’s transfer of his matrimonial home to his wife as a fraudulent conveyance.

As a result, in 2002, Indcondo sued the Sloans to set aside that transfer as a fraudulent conveyance. 

Two years later, Mr. Sloan declared bankruptcy.  That had the effect of bringing Indcondo’s action to a halt. 

Shortly thereafter, Indcondo asked the Trustee in Bankruptcy whether or not he planned to continue the attack on the conveyance of the matrimonial home.  The Trustee indicated that because the estate had no money, any such action would have to be undertaken by Mr. Sloan’s creditors.  Continue reading →

In Bennett v. Sears Canada Inc., the Court of Appeal recently dealt with an interesting case involving a former employee claiming post-retirement health and welfare benefits.

In this case, Bennett was employed by Sears Canada Inc. which offered some of its employees such benefits upon retirement provided they qualified.  One of the qualifying requirements was that the employee “must retire from active employment with 20 years or more continuous full-time service”. 

Bennett began working at Sears on a part-time basis in October, 1977.  She did so until May, 1999 when she became a full-time employee.  Approximately 10 years later, Sears terminated her employment due to corporate restructuring.

As a result, during the 32 years that she had worked with Sears, she had worked on a part-time basis for about the first 22 years and on a full-time basis for about the last 10 years.

In 2005, four years before termination, she inquired of the Human Resources Department in the store in which she worked about her eligibility for pension-related retiree benefits.  That request was conveyed to an employee in the HR Service Centre at the Head Office of Sears in Toronto.  Continue reading →

As most people recognize, unless there exists an employment agreement that says otherwise, an employer is entitled to fire an employee with reasonable notice or pay in lieu of reasonable notice.

If an employee is fired without notice or pay in lieu thereof, the termination is wrongful and in breach of the employment agreement between the employer and the employee.  The employee may sue for damages for wrongful dismissal.

Most people are also aware of the fact that in such circumstances, the terminated employee has an obligation to mitigate his or her damages by making reasonable efforts to find alternate employment.

The situation becomes particularly interesting where the former employer offers the former employee re-employment at the same or a related company.  Is the employee obliged to accept such an offer in mitigation of his or her damages?  Continue reading →

The recent decision of the Superior Court in McGregor v. Atlantic Packaging Products Ltd. provides a number of important insights into key aspects of employment litigation.

McGregor had been employed for 25 years by GT French Paper.  He held the title of Vice President of Sales when that employment ended.  He had signed a restrictive covenant prohibiting him from competing in the same business for 18 months.

Just cause is difficult enough to establish in the best of circumstances.

After the end of that employment, he approached the Defendant, Atlantic Packaging, for employment.  Atlantic was a competitor of GT French.  He was hired as a branch manager in a new plant opened by Atlantic Packaging in April, 2005.  He was terminated without any suggestion of just cause about 2 ½ years later at which time he was offered a severance package.  He did not accept the severance package and started this lawsuit in February, 2008.  Over two years later, in April 2010, Atlantic amended its Statement of Defence to allege just cause for the first time. 

When the matter reached trial, the only defence put forward by Atlantic was that of just cause.  Atlantic argued that McGregor had made fraudulent misrepresentations during the hiring process as to sales revenues that would be realized by Atlantic Packaging if he were brought on board. 

The first aspect of the case that is of interest has to do with the nature of the evidence of both sides, which conflicted in a number of important respects. 

Simply put, the trial judge preferred the evidence of McGregor where these conflicts arose.  She found that on critical issues, his evidence was corroborated by e-mails, memos or other documents.  Continue reading →