Can Offers Made at a Mandatory Mediation be Revealed to a Court When Making Costs Submissions:

In  Karolidis v. Orthotic Holdings Inc., Justice Chalmers was assessing costs after the acceptance of a Rule 49 offer which was accepted prior to a summary judgement motion .

In discussing what various offers were made during the course of the litigation, the Judge said the following :

“At the mediation on March 24, 2021, the Defendant made an offer, which was 7.7 months’ notice, which was less than the 12 months’ notice offered at the time of termination. ”

Rule 24.1.14 of the Rules of Civil Procedure reads as follows:

“All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice discussions .”

Questions to ponder;

1. Does Rule 24.1.14 mean that the Judge ought not to have considered any offer made at the mediation ?

2. Or, because the Rule only makes the contents of the mediation into a without prejudice discussion and does not explicitly bar it from being revealed to the Court, the Court can consider the contents of the mediation offer just like it can consider any offers made outside the mediation?

3. If the parties signed a mediation agreement where they agreed to keep the contents of the mediation strictly confidential, would that have made a difference ?

I look forward to your thoughts .

Costs of $50,000 Awarded for Two Day Case on Notice :

In Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONSC 68, Justice Stewart award the Plaintiff costs of $50,000 plus disbursement but inclusive of HST on account of obtaining an award of $118,305.

The Court made these comments about the respective offers prior to trial:

[6] The Plaintiff made a series of offers to settle prior to trial, each of which was less than that recovered. These offers were made in order to arrive at a compromise to make a trial unnecessary.

[7] The Defendant rejected these offers. Although the Defendant did make counter-offers they were substantially less than the Plaintiff’s compromise position and much less than his recovery at trial.

As this was a Simplified Procedure action the maximum that the Court could award would be $50,000 plus HST plus disbursements.

This case shows the advantage of using the Simplified Procedure and of making meaningful Rule 49 offers to settle.

Conflict Alert: The winning Plaintiff’s lawyer was my son Matthew Fisher, a partner at Lecker & Associates .

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Court Denies Stay in Pregnancy Extending Notice Period Case:

In Nahum v Honeycomb Hospitality ( no citation ) Justice Sossin denied the defendant’s motion to stay the enforcement of a summary trial decision which had been upheld by the Divisional Court which stood for the proposition that the reasonable notice period could be extended where the plaintiff was pregnant at the time of termination even when the employer was unaware of the pregnancy.

The Court found that there was a serious issue to be determined but that there was no evidence that to have to pay the judgement of $56,000 at this time would result in the defendant suffering irreparable harm.

Th Court ordered the Defendant to pay the monies into the trust account of its own lawyer pending the outcome of the appeal and ordered costs to the plaintiff in the sum of $5,000. This means that so far the Defendant has been ordered to pay costs of approximately $36,000 on a judgement of $34,000.

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61 year old Finance Manger with 9 Months Service Gets 2 Months Notice :

In Flack v Whiteoak Ford Lincoln Sales, ( 20121 ONSC 7176 ) Justice Dunphy gives a very thorough analysis of how to weigh the various Bardal Factors of age, length of service, character of employment and COVID in relation to this short service employee.

He also said this about my very own Wrongful Dismissal Database ( WDD) available through Thomson Reuters:

[31] The defendant for its part relied quite heavily on statistical tables comparing large numbers of broadly similar cases suggesting a range about 2.24 months’ notice for salespeople in the 58-70 age bracket with less than one year of service.

[32] In my view, the range suggested by databases such as the “Fisher Database” can provide a useful view of the general range applicable, but this is only a starting point and not an end point.

Having said that a detailed analysis is required for each case on its own merits , he then awards a notice period in line with statistical average as determined by the WDD , or as he calls it the “Fisher Database”.

If you want to find out more about the WDD go to :

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Another Court Confirms That Mandatory Vaccine Policy Does not Force Employees to Get Vaccinated :

In Wojdan et al v AG Canada ( Fereral Court Docket T-1765-21 Justice Fothergill ruled against the appellants who seeking an injunction to prevent the implementation of the Federal govt mandatory vaccine policy.

As these were all unionized employees , the Court first rules that they would not exercise their discretion to intervene at this point as there was already under may an arbitration process dealing with the same issues .

On the second test of irreparable harm the Court commented as follows:

[35] Second, as Justice Akbarali explained in TTC, the Applicants have mischaracterized the harm at issue. The harm the Applicants may suffer is being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated. They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other (TTC at para 50, citing Lachance et al c Procureur général du Québec, November 15, 2021, Court No 500-17-118565-210) at para. 144 [Lachance]). Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.

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Increase in UBER Earnings Post Dismissal Not Deducted from Damage Award :

In Degenedza v CIBC ( Federal Court Docket T-1399-19) Justice Strickland was judicially reviewing the decision of an adjudicator under the Unjust Dismissal provisions of the Canada Labour Code .

The Plaintiff had worked at the CIBC making $60,400 /year as Senior Investigator. He also worked on the side as an UBER driver making about $10/hour for about 10 hours a week.

After termination he increased his UBER hours to 60 a week and thus made $600/ week. The Adjudicator treated the extra $500 as mitigation income and reduced the damages accordingly.

The Court found that this was wrong and contrary to the Ontario Court of Appeal decision in Brake which held that mitigation earnings from a substantially inferior job should not be deducted from an employee’s damage award.

This is what the Court said :

” To illustrate this point, a terminated employee might seek but be unable to find work of similar responsibility and salary. However, not being able to afford not to work, they will instead take a lesser job and work more hours in an effort to keep the wolf from the door. Or possible take two or three lesser jobs to the same end. It is difficult to see how working more hours in lesser paying position(s) can serve as a straight dollar for dollar substitute for the amount that could have been earned less hours under the original employment.”

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Sexual Assault is by Definition Serious Misconduct :

In AG Growth International Inc v Dupont ( 2021 ABQB) Justice Little, sitting on appeal from a decision of the Provincial Court found that the trial judge had made a error of law when he failed to begin his analysis of the actions of the Plaintiff by starting with the premise that a sexual assault is automatically at the high end misconduct.

This is a brief summary of the incident:

a) before January 9 RT ( a female coworker)  and Mr. Dupont were workplace acquaintances, but they were not good friends;

(b) at about 8:00 a.m. on January 9 Mr. Dupont asked RT to go on a date with him and in reply she said “maybe”;

(c) at about 9:25 a.m. on January 9 Mr. Dupont approached RT while they were both working at the Westeel facility in Olds, Alberta and asked her if she was chilly and said “Now that you’re single we can go on a date”;

(d) Mr. Dupont then reached over and lifted RT’s hoodie and Tshirt, exposing the area of her body extending from her bellybutton to her bra, including her bra;

(e) Mr. Dupont did this because he wanted to flirt with and “hit on” RT, and he wanted to show her that he “liked her a lot”;

(f) Mr. Dupont did not intend to lift RT’s T-shirt when he lifted her hoodie;

(g) Mr. Dupont did not intend expose any part of RT’s body when he lifted her hoodie;

(h) Mr. Dupont’s actions caught RT by surprise, and caused her to be anxious, distressed and embarrassed, and caused her to fear Mr. Dupont;

(i) RT immediately swore at Mr. Dupont and slapped his hand away;

This what the Court said about the correct way to start the analysis in a case of this nature :

IV. Analysis

Ground One: Level of Seriousness of Misconduct

[8] Determination as to whether summary dismissal is justified requires an analysis of the proportionality of the employer’s response to the misconduct. That analysis begins with a determination of the seriousness of the misconduct.

[9] Consideration of the following excerpt from the trial decision suffices to dispose of the appeal on this first ground:

[87] In the present case, Mr. Dupont’s action constituted a single, brief and isolated incident of unwanted touching of RT, for the purpose of flirting with RT in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not persist, but immediately desisted and walked away.

   [88] While I do not discount the effect that his actions had upon RT, they fall at the low end of the “spectrum of seriousness” referred to at para 205 of Foederer and cited at para 90 in Willow Park Golf Course Ltd.

[10] A finding that intentional and unwanted touching for a sexual purpose (Trial decision para 83) constitutes sexual harassment at the low end of the spectrum of seriousness ignores our Court of Appeal’s determination that sexual assault is at the high end of that spectrum:

Sexual assault, by its very definition, is serious misconduct: Calgary (City) v CUPE Local 37, 2019 ABCA 388 at para 11)

[11] Recognizing that Calgary v CUPE dealt with the standard of review of an arbitrator’s decision, it nevertheless stands for the proposition that in this case, the trial judge’s starting point in the proportionality analysis should have been that the impugned conduct was on the high end of the spectrum of seriousness.

[15] Since a sexual assault is what occurred, the whole analysis ought to have been conducted with that finding in mind: Calgary v CUPE para 33

[16] Having commenced the correct analysis but from the incorrect starting point, the trial judge’s decision cannot survive review on a correctness standard.

My Comments :

Presumably the analysis should have been as follows

1) Did the conduct amount to sexual assault ?

2) If yes, then this is serious misconduct .

3) Are there any mitigating factors which would indicate that termination for just cause  was  a disproportionate  response ?

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Retraining Costs Allowed Even Through Plaintiff Did Not Get a New Job Within the Notice Period:

In Cordeau-Chatelain v Total E&P Canada Ltd ( 2021 ABQB 794 Justice Price has a situation where an employee who was awarded 18 months notice had reasonably retrained herself in a new career at a cost of about $18,000 . Because of this retraining, she obtained a job in her new career but well after the end of the 18 months notice period .

This what the Judge said :

[87] The other claimed expenses relate to Ms. Cordeau-Chatelain’s costs of retraining as an executive leadership coach. TEPCA argues that these expenses are not compensable because they arose out of her termination itself, rather than from the lack of notice. In other words, even if TEPCA had provided her with adequate notice, she would still have incurred the retraining expenses. The Defendant points to Ms. Cordeau-Chatelain’s statement that her termination “ended her career”, suggesting that any termination, even if not wrongful, would have required her to switch professions.

[88] Employers are generally entitled to terminate employment agreements, provided they give reasonable notice: Christianson at para 21. Damages for insufficient notice are awarded for breach of contract, but where sufficient notice is provided there is no breach and therefore no liability for damages: Deputat at para 8.

[89] With respect, TEPCA’s argument misses the point. Expenses that arise from the improper termination of a contract are compensable because there was a breach of contract. The question is not just about the nature of the expenses, but also the circumstances under which they were incurred.

[90] In this case I find that Ms. Cordeau-Chatelain had to incur retraining expenses because she was wrongfully terminated.

My Comments:
In my opinion the Judge got it wrong. The measure of damages in a contract breach case is to put the party in the same position that  they would have been had the contract not been breached ( Hadley v Baxendale ) .
If the plaintiff had been given 18 months working notice, then there would have been no breach of contract but  she still would have had to change careers and to do she still would have to incurred the education  expense.
The expense must be related to the breach and terminating someone without just cause itself is not a breach of contract.

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Plaintiff Wins $34,000 in Expense Reimbursement Even After Signing Release:

In Dolski v. Staples Canada ULC ( 2021 MBQB 29) Justice Kroft had a situation with the following chronology:

2)Plaintiff was terminated without cause and was given a settlement offer containing a release.

3) Few days later the Plaintiff signs the Release.

4) Few days later the Defendant invites her to submit her outstanding expenses.She submits expenses for $16,000 and they pay it .

5) A few months later she submits another $34,000 of expenses. The Defendant admits they are legit but refuses to pay because of the Release.

The Court found that the release did not block her entitlement for the following reasons:

The Release referred to many items being released but did not refer to expenses, nor was it discussed the the termination meeting, thus there was no meeting of the minds on this issue.

The Defendant knew that the Plaintiff had a claim for expenses and intentionally got her to sign the release first.

Although not referred to in the reasoning one cannot ignore the fact that they voluntarily paid the first $16,000 after the release was signed and only denied payment when they were presented with another legitimate but much larger request.

Although not referred to in the decision, it appears that the Plaintiff did not have a lawyer when she signed the release.

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Costs of $80,000 Awarded in Summary Motion:

In Rahman v. Cannon Design Architecture Inc., 2021 ONSC 7624 Justice Dunphy awarded $40,000 for partial indemnity pre Rule 49 offer and an additional $40,000 thereafter the Rule 49 offer on a substantial indemnity basis.

The Court considered the following factors :

1. One should not second guess the strategic litigation choices made by the winner.
2. There was a large amount of money at issue ( $300,000) and a large number of issues.
3. Including a number of issues and parties that had a faint hope of success is not a practice to be encouraged.

Here is the interesting point. The Defendant won the motion thus these costs were awarded against the Plaintiff.

I am advised by Plaintiff counsel that they have filed an appeal on the merits so this part of the case may also be considered by the appeal .

By the way, this was a one day motion. Not bad pay for a days work.

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