One Day Summary Judgement Motion Awards $28,000 in Costs to the Winning Plaintiff:

In Sandham v Diamond Estates Wines & Spirits Ltd ( 2022 ONSC 3670 ), Justice MacNeil had previously awarded $208,448 to the plaintiff in a wrongful dismissal action.

The Plaintiff beat their Rule 49 offer and was thus entitled to both partial indemnity costs up the the date of their offer and substantial indemnity costs thereafter.

The Plaintiff asked for $34,000. The Court awarded $28,000 saying there was some duplication of work between the senior lawyer and the two juniors who worked on the file.

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Notice Period Reduced from 14 to 5 Months due to Dismal Failure to Mitigate :

In Patel v Crimp Circuit ( not on CanLii) Ontario Small Claims Court Judge BOCCI initially awarded 14 months notice to a 54 year old Quality Assurance Inspector with 14 years service making $32,000/year.

However the notice period was drastically reduced to only 5 months because of the following;

1. Although the last time the Plaintiff had worked in the health care industry was 15 years ago in India, he only applied to these types of jobs.

2. The company that purchased his former employer offered him the same job a few months later but he never even contacted them.

3. Defence counsel gave the plaintiff 6 job openings in the same industry as the defendant, but the Plaintiff did not pursue any of them. In fact he never sought any job in the only field in which he had Canadian experience.

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Ontario Court of Appeal Rules That Sophistication of Parties Does Not Validate a Termination Clause which Breaches the ESA.

In Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451 the Court of Appeal unanimously overturned a decision of Justice Dunphy in which he found that because the Plaintiff was a sophisticated individual who had legal advice when she signed the agreement an otherwise invalid termination clause was enforceable.

The Court of Appeal thought otherwise:

[24] In my view, the motion judge erred in law when he allowed considerations of Ms. Rahman’s sophistication and access to independent legal advice, coupled with the parties’ subjective intention to not contravene the ESA, to override the plain language in the termination provisions in the Employment Contracts. By allowing subjective considerations to distort and override the wording of those provisions, the motion judge committed an extricable error of law reviewable on a correctness standard: Amberber v. IBM Canada Ltd., 2018 ONCA 571, 424 D.L.R. (4th) 169, at para. 65. It is the wording of a termination provision which determines whether it contravenes the ESA – even compliance with ESA obligations on termination does not have the effect of saving a termination provision that violates the ESA: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481, at paras. 43-44.

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Judges Reduces Notice Period For Failing to Look for a Job in Same Field That Plaintiff Spent 25 Years In and Then Discounts Go Forward Damages by a Further 15%:

In Okano v. Cathay Pacific Airways ( 2022 BCSC 881) Justice Weatherill had a situation where the following events occurred regarding mitigation.

1. Plaintiff is given working notice of two months so that she can shut down the department she managed. She does not look for a job in this period.
2. For two months after final day of work she also does not look for a job as she says she is depressed.
3. Then she takes career coaching for 3 months because she refuses to look for a job in the airline industry, the only area she has ever worked in .
4. She then applies for 50 non airline jobs, with no success.

The Judge made the following rulings:

1. It was reasonable for her not to look for a job in the 2 month working notice period as she was assisting in the transfer of the Canadian jobs to the Philippines.

2. It was not reasonable for her to not apply for airline jobs as ” it was incumbent upon the plaintiff to explore available positions in the very industry in which she had spent her entire working life.”

3. The judge knocked 3 months off a 24 month notice period and then reduced damages by a future 15% discount on the amount owing from the date of the hearing to the end of the 21 month notice period as the judge felt ” that there is a real and substantial possibility that she will find a job commensurate with her qualifications and experience at some point during the balance of the notice period.”
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Motion Seeking Substitution of Person to be Examined Fails. Cost Award of $45,000 .

In  Nezhat-Mahal v. Cosmetica Laboratories Inc., 2022 ONSC 3143,  Justice Vermette determined that the partial indemnity costs awarded to the Plaintiff in a motion brought by the Defendant to substitute  a Vice President for the President for examination for discovery was $45,000 where the Plaintiff claimed substantial indemnity costs of $84,621 and the Defendant said that their own partial indemnity costs were $39,648.

Do the math :

1. The Plaintiff apparently spent $84,621 as this is what they were asking for as substantial indemnity costs.
2. The Defendant spent at least $39,648 as this was only their partial indemnity costs. There real cost would probably be much higher.

These parties spent at least $124,000 on a two hour motion with a half day of cross examination, and minimal affidavits and documents.

I said it before and I say it again.

You gotta love the law.

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CLC Arbitrator Rules on What He Can and Cannot Do in Considering Issues Not Brought Forward by the Parties :

In Lopez v Bank of Nova Scotia ( File YM2727-15590 Arbitrator Bendal responded to the Complainant’s position that he should recuse himself from the case because on a number of occasions he raised legal issues and did legal research on issues that were not raised by either party.

There were two main issues that the Arbitrator raised himself, conducted research on and then asked for the parties submissions. These issues were :

1) Could he consider an offer of reinstatement made in the context of a settlement discussion between the lawyers as a factor in the arbitration. He ruled he could .

2) The reinstatement offer which the Complainant refused contained certain conditions which the Arbitrator believed were not enforceable and thus should the Complainant have agreed to these conditions and then argue before the Arbitrator that they were of no force and effect. He has yet to rule on this issue because the Complainant brought a motion for recusal.

In lengthy reasons, he ruled that he was correct in his rulings and did not show any bias.

The case now continues.

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Employer Mislead GM as to Whether His Employment Would Continue after Sale and Pays Dearly For It:

In Gascon v. Newmont Goldcorp 2022 ONSC 2511 Justice Fregeau had a situation where a General Manager of a large mine was told that the mine was being sold but that his employment would continue with the new employer.

The trouble was that two months before the deal closed the employer decided that if the new owner would not hire the Plaintiff  then he would be terminated. They failed to tell him this. In fact even when they knew one week before closing that the new owners were not going to hire the Plaintiff, they failed to tell him .

The Court did not like this and made two rulings as a consequence of this:

1) He was awarded $50,000 for moral damages because their conduct was ” untruthful, misleading and unduly sensitive “.

2) The Plaintiff had regularly received a very significant discretionary Long Term Incentive ( LTI) every year around March of every year, part of which vested immediately. However in the year in which the deal closed ( on March 30th) they decided not to grant him a LTI because they knew they were going to fire him. This was found to be a unfair and discriminatory exercise of discretion as the bonus was intended to compensate him for his efforts in the past year.

This is what the Judge said :

[90] However, as noted by Wilton-Siegel J. in Chann v. RBC Dominion Securities Inc., 2004 CanLII 66310 (ONSC), at para. 79, the fact that the decision to terminate the employee’s employment had been made “did not remove the need to approach the process of decision making in the same manner as in past years. The [employee] was contractually entitled to have his remuneration determined on the same basis as in prior years and for other employees in the same year”.

[91] As this decision explains, Mr. Gascon was contractually entitled to have Newmont Goldcorp consider an LTI award in his favour at the usual time (the beginning of March according to Mr. Thornton) using the usual criteria that were applied to all other employees. It follows that Mr. Gascon may have been contractually entitled, despite the wording of the May 2019 Employment Agreement and his imminent termination, to an LTI award from Newmont Goldcorp in March 2020.

However, given the lack of evidence on this issue the Judge ordered a mini trial on the issue of both entitlement and quantum of the Plaintiff’s entitlement to the LTI award  for the year the Plaintiff had just completed.

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NB Court Says CERB Not Deductible from Wrongful Dismissal Damages ;

In another of the many CERB cases, the case of Donovan v. Quincaillerie Richelieu Hardware LTD., ( 2021 NBQB 189) has come down in favour of not deducting CERB from wrongful dismissal damages.

This is what Justice LeBlanc said:

63. Regardless of any basis upon which Iriotakis, supra, may be distinguishable, I take a view similar to that taken by the Court in Slater, supra, that Mr. Donovan will likely be required to repay the CERB benefits given that there is a requirement for repayment by the recipient if they are rehired or received retroactive pay from their employer. It is indisputable that damages awarded to Mr. Donovan are a form of payment for the period during which he would have been working had he received reasonable notice of his termination. There is a likelihood that he could be required to repay such benefits if it is found that they relate to the same time for which he is compensated through damages.

64. Should Mr. Donovan be required to repay the benefits, it would be unfair that damages to which he was entitled were already reduced, leaving him to explain and justify why he should not have to repay while Richelieu receives credit for the money through a reduced damage award. Although there is a risk that Mr. Donovan may benefit from a windfall if he is not required to repay, that windfall
will not have caused Richelieu to pay an amount greater than what would be justified in the absence of the CERB program. Consequently, the CERB payments will not be directly deducted from the damage award.


No basis is given in the judgement as to what statutory provision the government could or has even tried to claw back CERB on the basis that the person subsequently received a wrongful dismissal award. There is a specific provision in regards to EI repayments but when I examined the CERB legislation I was unable to find any statutory authority to do the same . if someone could point out to me what the statutory basis the Feds could use to force repayment of CERB payments as a result of a subsequent award or payment of wrongful dismissal damages, I would be pleased to blog about it.

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Employer Claims Plaintiff Produced Fraudulent Mitigation Record : She Didn’t

In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 Justice Perell was faced with a allegation by the Defendant that the Plaintiff produced a fraudulent internet  job search record.

Here are some of the judges comments on this approach :

[4] Releasing the dogs of litigation war and going for the jugular, Walt Dentistry submits that Ms. Gracias falsified her evidence of mitigation with fabricated records of her Internet job applications.

[26] In preparing for the summary judgment motion, Dr. Walt reviewed Ms. Gracias’ document brief about mitigation. Because he was skeptical about why someone as qualified as Ms. Gracias would allegedly have difficulty finding a new job, he examined the .pdf documents, and he noticed some discrepancies in the documents. He believed that Ms. Gracias had fabricated evidence. Walt Dentistry retained Mr. Hatch, an expert forensic examiner, to determine whether there was some substance to Dr. Walt’s suspicions. Dr. Walt made investigations of his own to validate or refute the evidence proffered by Ms. Gracias. Dr. Walt contacted Drs. Laski, Nikolovski, and Weiss, and they respectively were prepared to and did swear affidavits for the summary judgment motion. Those affidavits cast doubt on whether Ms. Gracias applied for jobs with the affiants’ dental clinics. With the dentists’ affidavits and Mr. Hatch’s report casting doubt on the veracity of Ms. Gracias’ evidence of mitigation, in March 2022, one month before the summary judgment motion in an action that had diminished to a less than $50,000 claim, Walt Dentistry sets out to prove that Ms. Gracias had falsified her evidence of mitigation.

[35] The second step of the analysis of the alleged mitigation fraud is statistical, and this step involves classifying the evidence of Ms. Gracias’ job applications that are listed in her mitigation log. There are 139 job applications in Ms. Gracias’ mitigation log of which 138 job applications were made by Ms. Gracias between March 16, 2020 and December 18, 2020. There is also an application of April 28, 2021 to Village Orthodontics Dental Corp., which was logged mistakenly as being submitted on April 28, 2020. The parties and Mr. Hatch overlooked that this email message was mistakenly included in the log and in the undertaking briefs. 

[36] As detailed below, 102 of the 139 job applications are alleged by Walt Dentistry to have been fabricated. As detailed below, 37 of the 139 job applications have not been impugned by Walt Dentistry. 

[37] Ninety-six of the 139 applications are before September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. Forty-three of the 139 applications are after September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. 

[38] Eighty-nine of the 139 application emails are messages from the job recruitment web site 

[39] Eighty-six of the 89 emails are challenged as falsified. These emails are identified by having an automatically populated field indicating the email address of a prospective employer, but the hyperlink (connection to a webpage) back to that prospective employer is apparent but not real and “the follow hyperlink,” which does activate, invariably connects to Forest Hill Village Orthodontics, to whom Ms. Gracias had made a job application on March 1, 2020. 

[40] Dr. Walt had communications with: (a) Dr. Laski (with respect to two of the applications); (b) Dr. Nikolovski (with respect to one of the applications); (c) Dr. John Bozek (with respect to one of the applications); and (d) Dr. Tracy Handler (with respect to two of the applications). These dentists were principals of dental clinics listed on Ms. Gracias’ mitigation log. The dentists searched their respective office records and none of them could find evidence of job applications to them from Ms. Gracias. 

[41] Three of the 89 emails appear to be genuine, namely: 

  1. a. The July 15, 2020 email acknowledging an application to Overtus Medical. 
  2. b. The July 15, 2020 email acknowledging an application to 123 Dentist. 
  3. c. The April 28, 2021 email acknowledging an application to Village Orthodontics Dental Corp. This is the application misdated in Ms. Gracias’ mitigation log. 
  4. [42] Mr. Hatch’s findings and opinion with respect to the emails is as set out below. 

As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication. 

In my professional opinion as a digital forensics expert, 86 out of the 89 Indeed Emails contain two suspicious anomalies that call their authenticity into question. First, the blue, underlined text describing the job applied for appears to be a hyperlink, but is not actually a hyperlink. Second, the “Follow” button links out to a different employer from the one shown in the email. 

In stark contrast, the 3 Indeed Emails that do not have these two suspicious anomalies contain the correct characteristics that one would expect to see from a legitimate Indeed application confirmation email. Those 3 Indeed Emails have a hyperlink embedded in the blue, underlined text containing the description of the job applied for and the “Follow” button links out to the matching employer that is shown in the email. 8 

According to my analysis, it is my professional opinion that the emails shown at pages 61, 132 and 160, are legitimate. However, I have significant reason, outlined in this report, to seriously question the authenticity of the other 86 Indeed Emails. 

As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files). 

[43] In addition to examining the emails, Mr. Hatch identified 9 email messages on Ms. Gracias’ email account as having suspicious anomalies. He identified two types of anomalies. First, the parentheses on the left and right of the text of the email address were separated by a space, which is unusual. Second, placing a cursor over the email address text within the parentheses produced a hyperlink to “” which was inconsistent with the correspondence to the prospective employer identified in the email message. 

[44] Mr. Hatch’s findings and opinions with respect to the nine emails are set out below: 

As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication. 

In my professional opinion as a digital forensics expert, the purported emails shown at pages 46, 47, 48, 50, 53, 73, 102, 110 and 115 of the Undertakings show anomalies that raise serious doubt as to their authenticity. 

As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files). 

[45] The third step in the analysis is to consider the matter of motive and the evidence of Ms. Gracias and the opinion of Mr. Hatch. This analytical step is necessary because in the absence of motive, it is more plausible and more logical to attribute the anomalies to mistake, accident, mystery, or misadventure than is it to attribute the anomalies to fraud and falsification. 

[46] Ms. Gracias’ evidence was that she genuinely made the job applications. She cannot explain the anomalies discovered by Dr. Walt and confirmed by Mr. Hatch. I believed her evidence which was more plausible than the evidence that she falsified the evidence of mitigation. 

[47] There was no purpose to fabrication, and it would be idiotic for her falsify evidence. As the discussion later in this decision will reveal, the onus of proving a failure to mitigate was on Walt Dentistry. She had 37 of the 139 job applications that are acknowledged to be genuine. That would have been enough to rebuff Walt Dentistry’s attack, because the law is that mitigation needs only to be reasonable not comprehensive, and she did not need so much evidence, nor did she need to prove that she applied to every dental job posted on or posted elsewhere. 

[48] Moreover, if she needed to apply for every dental job posted on or elsewhere about jobs in the vicinity of her home in Markham, Ontario, to prove mitigation, then why labour at fabricating 102 applications after the fact when making genuine applications was easily facilitated by the webpage and her own email account? Why include 43 applications after September 16, 2020, at which time Ms. Gracias had accepted a job offer from Transitions Consulting? It is more plausible that the impugned emails are the product of mistake than of misfeasance. 

[49] The fourth step in the analysis is to note the paucity of the evidence about fabrication of .pdf documents. Mr. Hatch’s opinion identified anomalies in the emails, and while he provided an opinion of how the anomalies could be the product of advertent manipulation, he did not opine on whether the anomalies could be the product of mistakes in fashioning an email message using a copy of the email messages that Ms. Gracias had sent on February 26 or 27, 2020 to Oasis Orthodontics and on March 1, 2020 to Forest Hill Village Orthodontics, while still employed at Walt Dentistry. Mr. Hatch was only given the brief of documents. Neither he nor I have any idea of what Ms. Gracias testified at her examination for discovery about how she went about preparing her job applications. Further, there was no evidence from either side about how operates and whether or not email applications could be misdirected by mistaken entries. There was insufficient evidence to come to the conclusion that Ms. Gracias fabricated her job applications. 

[50] The last step in the analysis is to consider what is the weight and significance of all of the evidence about the alleged mitigation fraud. Weighing all the evidence, I conclude that while it is possible that the evidence of mitigation was altered, it is far more plausible that the anomalies are a product of mistake or misadventure in Ms. Gracias’ use of or her use of her personal email account. With respect to the evidence of Drs. Laski, Nikolovski, and Weiss and the hearsay evidence of Drs. Bozek and Handler, that they did not find evidence of applications from Ms. Gracias, this evidence can be understood as consistent with the more plausible explanation that Ms. Gracias’ emails were misdirected by mistake and not fabricated after the fact, which she denied doing. 

[51] Finally, there is the matter of Mr. Hatch opining that he could discover more about the genuineness of the email messages by examining electronic versions of the email files in their native format (probably, .eml or .msg files). 

[52] With the summary judgment motion imminent, in response to the request that Ms. Gracias provide copies of the original email messages, she did not do so, and she explained that she had been the victim of a computer hack of her email files. I accept that this is a suspicious coincidence, but Internet hacks of email accounts are not uncommon, and more to the point, for the reasons I have already expressed, it remains more plausible that the impugned emails are the product of mistake or misadventure than of a grand and continuing mitigation fraud. 

[53] I am not persuaded that Ms. Gracias fabricated her evidence of mitigation. I find as a fact that there was no failure to mitigate. 



Thw award in this case was only 3 months of reasonable notice, which considering that she had only been employed for 5 months, is pretty good. This came to $17,587.

Can you imagine how much the Defendant must have spent on this failed mitigation argument? They actually hired a forensic expert !

The issue of costs is not decided. If the Plaintiff had an operative Rule 49 offer on the table for less than $17,587 , then the presumptive rule is that the Plaintiff would get partial indemnity costs up the date of the offer and substantial indemnity thereafter. Moreover,  my understanding of the law of costs is that if you allege fraud and fail to prove it, the Court can also award substantial or even full indemnification of costs.   The cost award could easily dwarf the judgement amount.

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Another Case in the CERB Deductibility Debate : This Time Not Deductible :

In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 Justice Perell had this to say about the issue:

Is the CERB Deductible from the Damages for Dismissal without Cause?

[112] As noted above, after her dismissal from employment, which occurred during the Covid-19 pandemic, Ms. Gracias received $16,000 in CERB payments.
[113] In the British Columbia case of Shalagin v. Mercer Celgar Limited Partnership,41 CERB payments, like unemployment insurance benefits, were deducted from the compensation payable in lieu of notice.
[114] In contrast, in the Ontario case of Iriotakis v. Peninsula Employment Services Limited,42 the Nova Scotia case of Slater v. Halifax Herald Limited,43 and in the British Columbia case of Snider v. Reotech Construction Ltd.,44 CERB payments were not deducted from a wrongful dismissal reward.
[115] I agree with the reasons in Iriotakis, Slater, and Halifax Herald, and hold that CERB is not a mitigation credit in the immediate case.

Again, no analysis just a conclusion. Unfortunate.

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