n Kondaj v Crossbridge and Duka ( not yet reported ) the Plaintiff won a judgment of $78,925 against one of the defendants. The main issue was not whether the Plaintiff was entitled to reasonable notice, but rather which defendant was liable.
The Plaintiff made an early Rule 49 offer for $27,000 and therefore was awarded exactly what they asked for in costs, namely $56,355.
The fact that the main fight was between the defendants was important to the Judge :
“A plaintiff employee should not be held hostage to a legal dispute between two defendant employers when it is absolutely clear-cut that the plaintiff is entitled to damages in lieu of notice. “
Commemt:
Conflict Declaration: Winning Plaintiff counsel was Kimberly Sebag of Lecker & Associates, where my son, Matthew Fisher is a partner.
Many of the mediations that I do involve a determination of the proper notice period where the only payment made so far to the Plaintiff was the ESA minimums.
Sometimes these mediations fail because the parties cannot agree on the notice period, however the actual monetary difference is relatively small.
In those cases it is important to realize that the defendant is going to lose the case, in that whatever the notice period is , it is greater than the ESA. Therefore even where the Court finds that the notice period is closer to the Employer’s position , the Employer may still have to pay costs to the Plaintiff. This cost amount often exceeds the differential between the last final offers at mediation .
For a copy of this case, email me at barry@barryfisher.ca
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