The following three case summaries illustrate of the breadth and complexity of the matters that make up my practice.
Wrongful Dismissal Action
In this action, I acted for the plaintiff, a Paramedic Supervisor with more than 25 years of service as of the date of dismissal. The employer dismissed my client for cause and alleged that:
- He stole from the homes of patients during calls that he attended on; and
- Searches that he conducted during certain patient calls constituted a breach of trust and an invasion of privacy.
The issues in this particular matter were more complex compared to a typical wrongful dismissal case. In terms of liability, the determination of cause for dismissal required expert evidence as to whether or not the searches conducted by my client fell below the standard expected of a Paramedic Supervisor. Reports from experts in the field of paramedics were required since the employer did not have any written policies or procedures concerning the proper conduct of searches at patients’ homes. I was also concerned with the fact that although the criminal charges were withdrawn on the basis of insufficient evidence, a finding of fact that there was cause for dismissal could still be made, given the lower standard of proof in civil proceedings.
With regard to damages, at the time this action was commenced, the Supreme Court of Canada’s decision in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 was the leading case on damages for an extension of the reasonable notice period. However, when the Supreme Court of Canada supplanted this case with its subsequent decision in Keays v. Honda Canada Inc., 2008 CarswellOnt 3743, a re-analysis of damages and how they were pleaded, as well as an amendment of the Statement of Claim, was necessary. In addition, a further report from an actuary was required to calculate the difference between the commuted value of my client’s pension that was paid out following termination and the increase in the value of his pension that he should have received had employer and employee contributions been made to it over the course of the reasonable notice period.
The trial was set for 7 days in the Fall trial sittings and I had 12 witnesses lined up to give testimony. However, negotiations continued with counsel for the employer, and we were eventually able to settle the matter in early November.
By structuring the settlement, allocating portions of the funds towards legal fees and non-pecuniary damages, we were able to minimize the income tax consequences for my client and increase his compensation, despite a compromise on the total amount of the settlement.
Commercial List Action
My clients, an individual and the corporation that he was the sole shareholder of, were added as defendants to this action, along with ten other defendants. Prior to being added as a party, my clients were already the subjects of a Norwich order for the production of records in a related proceeding.
My individual client was a high-level manager of one of the plaintiffs, a large multi-trade contractor, until his employment was terminated. The plaintiffs alleged that:
- My clients were participants in kick-back schemes involving the other defendants, most of whom were either companies or directing minds of companies that performed work on various projects carried out by the plaintiffs; and
- My clients misappropriated funds that should have been paid to the plaintiffs.
The plaintiffs claimed damages in excess of $8 million based on various causes of action, including: fraud, conversion, breach of contract, breach of fiduciary duty, fraudulent misrepresentation, conspiracy and breach of trust. My individual client brought a counterclaim against his employer in excess of $280,000.00 for payment of his annual performance incentive that he earned prior to his dismissal.
From a strategic point of view, it appeared that the plaintiffs sought to apply pressure on my clients to agree to a settlement that included providing evidence that would support the claims against the other defendants. The plaintiffs did so by bringing a Mareva injunction (freezing order) motion against my clients. I suspected that the plaintiffs anticipated that the mounting financial pressure resulting from the Mareva injunction and the motion itself would cause my clients to relent and settle.
Tactically, however, it made more sense for my clients to stand firm, knowing that the attention and resources of plaintiffs’ counsel was already stretched thin. By that point, the plaintiffs had already brought a motion for a Norwich order, a previous Mareva injunction motion against two of the other defendants, and a motion to amend the Statement of Claim and add defendants to the action. There was also a pending motion to transfer the action from the Commercial List to the court in Windsor, where the majority of the defendants, the witnesses, as well as several of the projects in question, were situated.
Instead of settling, I recommended to my clients to defend the motion. In the process of doing so, the court granted my request for an adjournment of the motion in order for cross-examinations on the affidavits to take place. I then negotiated an Indemnity Agreement in favour of my clients with a group of co-defendants, thus limiting my clients’ exposure and alleviating the financial pressure that the plaintiffs sought to exert via the Mareva injunction motion.
The parties had yet to exchange Affidavits of Documents and productions, let alone proceed with examinations for discovery. The cross-examinations on the affidavits relating to the Mareva injunction motion had just been completed. With the plaintiffs’ legal fees continuing to escalate at a rapid pace, the parties agreed to engage the services of a mediator to facilitate a settlement meeting between all of the parties.
Although the settlement meeting proved unsuccessful, negotiations between the parties continued over the course of the next several months. Eventually, the parties were able to agree on the terms of Minutes of Settlement that included, among other things, a dismissal of all claims against my clients.
Action Based on Sexual Assault of a Minor Plaintiff
This action was based on a sexual assault on my client, a 12-year old girl. The sexual assault was committed by the boyfriend of my client’s relatives. The defendant assailant was arrested and charged with sexual assault and of sexual interference. In the Statement of Claim, my client pleaded that the defendant’s actions constituted an assault and battery, and infliction of mental distress.
Although the claim was not insured, my client’s mother, her Litigation Guardian, was comfortable proceeding with the claim based on my advice to her that a judgment based on a sexual assault would survive a bankruptcy.
Surprisingly, rather than side with my client, my client’s relative initiated an application against my client’s parents for, among other relief, an order forcing the sale of the family home that the three of them owned jointly. I acted for my client’s parents in this application and later negotiated a settlement of those proceedings.
The defendant assailant pleaded guilty to the charge of sexual interference and was sentenced to six months of incarceration, two years of probation, counselling as a sex offender, an order restraining him from any contact with my client and her immediate family, and compliance with the Sex Offender Information Registry Act for 10 years.
As a result of the defendant’s admission of guilt, his liability was not in issue. The sole issue to be determined in this action was the quantum of damages.
At the pre-trial conference, I was able to negotiate a settlement of the action on terms that required payment of the settlement funds within 30 days. However, the defendant failed to comply and I was forced to bring a motion for judgment in accordance with the terms of the Minutes of Settlement.
At the return of the motion, the defendant was granted an adjournment to cross-examine my client’s mother, as Litigation Guardian, on her affidavit. However, my client was also granted an injunction freezing the defendant’s assets pending the next return of the motion. When the matter returned later that month, judgment was granted in accordance with the terms of the Minutes of Settlement. The court also ordered the continuation of the injunction, which was subject to an exception that allowed certain assets of the defendant to be liquidated and paid to my firm in trust.
Two months later, the court granted an order approving the structure and allocation of the settlement funds. The funds were remitted to the Accountant of the Superior Court of Justice to be held for the benefit of my client during her minority.