Category: Uncategorized
Costs for a One Day Summary Judgement Motion = $35,529
In Pohl v. Hudson’s Bay Company, 2022 ONSC 5598, Justice Centa determined that costs for the winning plaintiff who beat his own Rule 49 offer was to be $35,559 plus disbursements where his full indemnity costs were $42,425.
I found this following passage most interesting, where the Judge commeneds on the difference between how large firms bill and how small firms bill
“HBC submits that Mr. Pohl’s “higher than expected costs simply reflect a failure to appropriately delegate work.” It is true that all of the work done on Mr. Pohl’s file was done by one lawyer. This contrasts with the defendant who had four lawyers, four students, and a law clerk work on the file at various times. But there are many ways to organize legal work efficiently and effectively. Looking at the work done by Mr. Pohl’s counsel, it appears to have been done very efficiently, even taking into account his higher hourly rate, which it itself appropriate for a lawyer with 43 years of experience. I do not accept that the differences in how these files were staffed should mean that Mr. Pohln should receive less on a blended substantial indemnity / partial indemnity scale than HBC would have sought on a partial indemnity basis if it was successful.”
My Comments :
Ontario judges have been awarding significant cost awards in employment cases even where the hearing only takes one of two days. This matter can often play out in a mediation where there is a relatively small difference between the parties final offers. This is especially relevant in a simple notice case, where in most cases the Defendant has only paid out the ESA and the parties are only arguing about the length of the notice period. In those cases, the defendant will lose at trial, the only issue will be by how much. Since a loss almost always carries an adverse cost award ( unless the Defendants beats its own Rule 49 offer) , the cost award can easily exceed the difference between their last offers. As many Plaintiffs are on a contingency arrangement, going to trial carries less risk as the extra work is done by the lawyer and does not affect the Plaintiff’s recovery.
For a copy of this case, email me at barry@barryfisher.ca
For my date availability regarding mediations, go to www.barryfisher.ca
BCSC Holds That Putting Non Compliant Employee on Leave for Violating Vaccine Mandate is NOT a Constructive Dismissal :
Employer Wacked with $55,000 of Moral and Punitive Damages :
NBCA Deals With Allegation of Improper Layoff and Constructive Dismissal :
Class Action on Unpaid Vacation Pay and Public Holiday Pay for Variable Income Can Proceed:
In Curtis v. Medcan Health Management Inc., 2022 ONSC 5176, the Ontario Divisional Court overruled the decision of Judge Perell who denied certification.
The action is based on the premise that both vacation pay and statutory holiday pay are to be paid on all income, not just on base pay. In this class of employees all of them had some component of either commission income or bonuses which are wages under the ESA.
Medcan sought to remedy this mistake by paying monies owing for the two years prior but refused to pay before that date, relying upon the two year limitation period in the Limitations Act 2002.
This class action seeks compensation for the period before the two years.
The Div Court found that the class action was preferable over individual civil actions because this would provide a greater access to justice, given, among other factors, the unwillingness of current employees to sue their employer directly.
Moreover the trial judge failed to consider the behaviour modification aspects of the application, namely that by holding the employer responsible for the actual damages incurred by the class, it will serve as a message to other non compliant employers that they cannot just ignore the ESA for decades and then get out of the problem by only paying up for the last 2 years if they are caught.
The Court then certified the class.
Class counsel was Monkhouse Law and Employer counsel was Hicks Morley .
If you wish a copy of this case, email me at barry@barryfisher.ca
For my date availability for a mediation, go to www.barryfisher.ca
Terminating an Employee Without Reasonable Notice Results in Employer Paying for 26 Years of LTD Benefits:
BC Court Finds That ESA Only Termination Clause is Enforceable :
In Shultz v. Prococious Technology Inc., dba,Cleardent, 2022 BCSC 1420, Justice Walkman found that the following termination clause was enforceable as it fully complied with the BC ESA.
6.3 Termination by Company Without Cause. The Company may
terminate the Employee’s employment for any reasons, without cause, uponnproviding the Employee with only the notice or payment in lieu of notice (or a combination thereof) in the minimum amount required by the British Columbia Employment Standards Act, as amended from time to time. Benefits will end on the last day worked.
6.4 The Employee understands that by complying with this Article 6.3, thenCompany satisfies its entire obligation under statute and common law tonprovide notice or pay in lieu of notice to the Employee in the event that theirnemployment is terminated. In no event will the Employee receive less noticenor pay in lieu of notice than the minimum termination notice or pay in lieu of notice they are entitled to under the British Columbia Employment Standards Act, as may be amended from time to time.
The Plaintiff did not provide the Court with any arguments as to why the actual language was unenforceable, rather they focused on the fresh consideration issue.
Can anyone out there think of any arguments that could have been made about the enforceability ? Remember this is a BC case and not an Ontario case. Please post your comments or send me an email at barry@barryfisher.ca
If you wish a copy of this case, email me at barry@barryfisher.ca
Quitting and Returning One Year Later is a Break in Service;
Employer Allowed to Plead its Termination Offer When Plaintiff Pleads Bad Faith Damages:
In Posehn v. CIBC, 2018 ONSC 1458, Master Jolley was dealing with an objection by the Plaintiff that the Defendant had pleaded in its defence the terms of a settlement offer which the Defendant made at the time of termination.
Master Jolley noted that in a simple notice case it would be both irrelevant and improper to plead such an offer. However in this case, the Plaintiff has pleaded bad faith, aggravated and punitive damages because at the time of his termination they only included his base salary and not his variable income in their termination payment.
Therefore the pleading of the Defendants’ offer was relevant to the accusation of bad faith and bad behaviour at the time of termination. Presumably this was plead to show the Judge that the Defendant were not a bunch of meanies.
The pleading was not struck.
If you would like a copy of this case, email me at barry@barryfisher.ca.
In Janmohamed v Dr . Zia Medicine PC ( Ct file # CV-20-00646993) Justice Myers had a situation where the Plaintiff accepted the Defendants Rule 49 Offer of $15,000 plus costs to be assessed. The parties could not agree on costs.
The judge made the following comments after writing about what he thought was the ” very aggressive” fight by the Defendant.
“A plaintiff whose employment is terminated without cause is entitled to pay in lieu of reasonable notice. Employers should not be incentivized to low-ball and then force a plaintiff to sue to obtain what everyone knows is justly due. Costs and delay are horrible risks to a plaintiff who finds herself sitting at home having to spend thousands of dollars, while unemployed and vulnerable, to chase money that is obviously due from a well funded employer. In my view a plaintiff should reasonably expect to be paid her costs on a partial indemnity basis in a wrongful dismissal action. The quantum is an issue and I deal with it below. But it would be fundamentally unjust to leave the plaintiff under water as a result of bringing her employer to a position that it ought to have arrived at or near and offered fairly at the time it terminated her employment.’
I love the way Justice Myers gets to the point and doesn’t pull punches. Kinda reminds me of myself.
If you like a copy of this case, email me at barry@barryfisher.ca
For my date availability fora mediation or an arbitration go to www.barryfisher.ca