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 →

In my last post, I made a comment about a judge having failed to recuse himself upon the request of counsel at the beginning of a trial on the grounds of reasonable apprehension of bias arising out of a connection between the trial judge’s wife and certain individuals with an interest in the outcome of the case. 

I also referred to an experience which I had had several years earlier in which I was able to have a summary judgment overturned on the basis of bias as evidenced by remarks made by a motions court judge. 

In a recent Court of Appeal decision, Lloyd v. Bush et al., the Court dealt with another situation in which a judge betrayed an apparent bias during the course of a trial, resulting in the decision being set aside and a new trial being ordered.  The circumstances were so unusual (and hopefully interesting) as to bear close examination.

As I had indicated in my last post, the rather high threshold established by the cases for the overturning of a decision on the basis of a reasonable apprehension of bias can be met without a finding of actual bias.  It is sufficient to demonstrate that on an objective basis, a reasonable person with knowledge of all of the facts would conclude that it is more likely than not that a judge would not decide fairly.  The appearance of potential bias is sufficient.

Lloyd v. Bush was a case in which bias was clearly demonstrated by the trial judge’s own statements and actions in several respects.  Continue reading →

I have been involved in a number of cases in which motions have been brought to force an opposing lawyer to give up a file and get off the record for a variety of reasons, but most typically due to an alleged conflict of interest.  In my view, and as a general rule, the threshold to be met to obtain an Order declaring opposing counsel to be in conflict is not particularly high.  But what about judges?

In any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

A number of years ago, I defended a client in a small town in Ontario in a contract case.  The Plaintiff moved for judgment before one of only two judges regularly sitting in that jurisdiction.  For whatever reason, that judge obviously took a significant dislike to my client and not only did I lose, the judge went of his way to make a number of harsh and derogatory statements about him which I found to be uncalled for. 

I launched an appeal in that summary judgment, and I was successful.  However, not only did the Court of Appeal set aside the judgment, it also granted an Order declaring a bias on the part of that particular judge and requiring that the judge refrain from participating in any motions, pre-trial conferences or the trial itself as that matter progressed.  Continue reading →

A recent decision of the Ontario Court of Appeal provides interesting insights into the role of home inspectors and real estate agents where a specific issue is identified by a potential purchaser before the inspection takes place.

In Halliwell v. Lazarus and Coldwell Banker Terrequity Realty, the purchaser appealed from a trial decision in which liability had been apportioned among the home inspector at 50%, the real estate agent at 25% and the purchaser at 25% for contributory negligence. 

The problem had not been highlighted in the report in a sufficiently clear and precise manner.

On the facts of the case, the purchaser had made it clear to her agent and the home inspector (who had been recommended by the agent) that she was allergic to mould and required the house to be completely dry. 

The inspection was a condition of the offer so that the purchaser had the right to back out of the transaction if she was unhappy with the results of the home inspection.

The home inspector prepared a report that provided warning signs of moisture problems.  Continue reading →

A recent Ottawa decision, 2964376 Canada Inc. (Ameublement Prestige Furniture) v. Bisaillon, provides some interesting guidance concerning the right and the wrong way for aggrieved consumers to deal with retailers with whom they have complaints.

In this case, Mr. and Mrs. Bisaillon purchased a dining room set from the Plaintiff, Prestige Furniture. 

The public interest is not synonymous with what interests the public.

The dining room set arrived in a damaged state.  Prestige made some repairs and offered to have the manufacturer either repair it to the satisfaction of the Bisaillons or replace it.  The Bisaillons insisted on a refund.

They complained the Better Business Bureau, which mediated the matter and determined that Prestige had acted in good faith.

Still unhappy, the Bisaillons sued Prestige in Small Claims Court in 2010.  After a trial that took up 124 pages worth of transcript, the trial judge concluded that the Bisaillons had been wronged to some extent and awarded them $750 in damages. 

This action involved a separate dispute.  It appears that the adult daughter of the Bisaillons took upon herself to transmit an e-mail from her place of work, the Canadian Museum of Civilization Corporation, to 38 people referring to Prestige as an “untrustworthy company” and “deceitful” among other things.  She encouraged the recipients of the e-mail to pass it along to others.  Continue reading →

A decision of the Ontario Superior Court of Justice in the case of Siegel et al. v. Hibbert et al., released on May 7, 2012, contains some interesting observations on the role of investors in Ponzi schemes.

It does not lie in the mouth of one who makes a statement on which another relies to say that the other was careless in believing him.

The judge began his Reasons with the following comment:

“Greed is a vice that makes normally rational people act irrationally.  It plays exceedingly well into the old maxim ‘if it looks too good to be true, it usually is’.  This case proves that both theories are alive and well.”

In this case, a series of Plaintiffs invested various sums of money with one Marlon Gary Hibbert and his companies from about late 2006 through 2008.  All of them had heard of Hibbert generally by word of mouth, and all had approached him to ask that he invest their funds.

Hibbert traded in the currency exchange market without any training, experience or formally education in investments.  He was never registered with any regulatory body or government agency. 

He would explain to each Plaintiff that he traded in that market and that he guaranteed a 5% return per month or 8.5% per month if the funds were locked in for one year.  He also personally guaranteed all principal and interest payments.  Continue reading →