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The Court of Appeal dismissed 2113626 Ontario Inc.’s appeal, upholding summary judgment on common employer liability and rejecting res judicata and abuse of process arguments.
Court found employee was coerced into signing an Exit Form and thus constructively dismissed; employer failed to prove just cause; the employment contract did not unambiguously limit common-law notice to statutory minima (ambiguous wording and no fresh consideration for handbook terms); employee reasonably mitigated; COVID-19 and employer's misleading assurances extended reasonable notice. Remedy: 14 months common-law notice, deduction for mitigation, punitive damages $20,000; total award $90,025 plus pre-judgment interest.
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Ontario Court of Appeal partially allowed an employment appeal, upheld the finding of no just cause and no failure to mitigate, but reduced damages by $32,881.43.
Plaintiff failed to prove contractual loans; defendants failed to rebut presumption of resulting trust so transfers are held on resulting trust for plaintiff; alternatively transfers were procured by presumed undue influence because plaintiff was vulnerable from Huntington's disease and defendant had opportunity to dominate his will; credit card charges were authorized and conversion not proven; employer had just cause to terminate Karen for serious breaches of fiduciary duty; plaintiff liable in tort for a single sexual assault incident and awarded $15,000 general damages.
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The court found the employer did not condone the plaintiff's misconduct because it acted reasonably by commissioning an independent investigation, promptly acting on its findings, and actively seeking a replacement; the plaintiff admitted pervasive dishonest conduct (misappropriation, undisclosed excessive wages, interest-free loans, payment of personal expenses) which, in context, constituted just cause for summary dismissal; the defendant's counterclaim succeeded and damages of $814,681.99 were awarded against the plaintiff.
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The application for summary trial was dismissed because there were head-on conflicts in the affidavit and oral evidence on central issues (constructive dismissal, acquiescence, mitigation) that could not be resolved without credibility findings; therefore the court could not find the necessary facts and the first precondition for summary trial was not met, notwithstanding that many factors otherwise favoured summary disposition.
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The Court upheld the trial judge: the Asset Purchase Agreement, read with the Employment Contract, created a minimum three-year fixed-term employment; under the agreed governing law (Ontario) the employee is entitled to payment for the remainder of the fixed term without deduction for mitigation; the non-compete covenant in the sale context was reasonable and was breached with proven diversion of three clients; damages were properly assessed on available evidence; appeals dismissed.
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The court granted summary trial, upheld the without-cause termination clause, found no repudiation from late final-wage payment or alleged bullying, and dismissed the action.
Leave to appeal refused because the claimant failed to identify an arguable reviewable error; the General Division reasonably found on the evidence that the claimant left the bus contrary to clear employer policy and prior warnings and therefore lost his job for misconduct, so the appeal has no reasonable chance of success.
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Plaintiff failed to prove he was incapable of or substantially impeded in managing his affairs for the period required to postpone discovery under s.19 of the Limitation Act; objective evidence (retention of counsel, negotiation and signing of settlement in August 2021, WorkSafeBC benefits ending August 8, 2021, consent to cataract surgery in 2022) shows he was aware and capable; therefore the claim was filed after the expired limitation period and summary dismissal under Rule 9-6 was warranted.
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