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Civil Procedure

Ontario's "10th Annual Employment Law Summit"

I attended the Law Society of Upper Canada's "10th Annual Employment Law Summit" in Toronto today.

The keynote speaker was the Honourable Mr. Justice Marshall Rothstein of the Supreme Court of Canada. He focused his comments on two recent cases in which the SCC has addressed fiduciary duties in the employment context:  read more »

BC Court of Appeal addresses how lump-sum pension payments should be calculated over notice period

Jurisdiction: - British Columbia
Sector: - Manufacturing

In the wrongful dismissal case of Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, the BC Court of Appeal addressed the manner in which special allowances, discretionary increases in salary and pension benefits should be treated over the notice period. It also discussed the duty the mitigate and the awarding of costs.

Background

The appellant employee had been employed by Lehigh Northwest Cement Limited ("Lehigh") for 26 years.  He was the manager of computer systems. He was dismissed without cause in 2006 following a 28 month medical leave of absence because there was no position for him to return to.  He was 58 years of age.  Lehigh offered him a severance package equal to 15 months salary, which he declined.

At trial, he was awarded 22 months notice, which equalled about $200,000, and about 30% of his costs (see  Lewis v. Lehigh Northwest Cement Limited, 2008 BCSC 542).  read more »

Does an employer have to produce a third-party investigator's report in the course of litigation?

Jurisdiction: - British Columbia

Does an employer have to produce a third-party investigator's report in the course of litigation?

The BC Supreme Court addressed this issue recently in Bank of Montreal v. Tortora, 2009 BCSC 1224, where the defendant former employees brought an application seeking that the Bank of Montreal (the "Bank"):

  1. produce the documents in a third-party investigator's files; and
  2. provide a list of documents over which it claimed privilege that satisfied the requirements of Rule 26(2.1) (i.e., list the documents individually and describe them so that the validity of the privilege claim could be tested).

Background

The Bank dismissed two long-term employees on December 3, 2008 and filed a lawsuit against them on January 6, 2009, claiming that:  read more »

Discoveries must occur before defendants get particulars of claim involving confidential info, breach of fiduciary duty

Jurisdiction: - British Columbia

Mr. McKay resigned from the plaintiff VSM in September 2007 after 19 years of employment.

Before leaving VSM, he signed a release in which he acknowledged that he owed a fiduciary duty to VSM and that VSM would suffer irreparable harm if its confidential or unique information was disclosed without authorization.

Mr. McKay then commenced employment with VSM's competitor, Elekta.

VSM subsequently sued Mr. McKay and Elekta, alleging that they conspired to use confidential information to obtain an unfair competitive advantage and that Mr. McKay breached his fiduciary duty.

In response to the 54-paragraph Statement of Claim, the defendants filed a one paragraph Statement of Defence and then brought a motion seeking "particulars" of the claim. The Defendants' position was that they needed the particulars to file a responsive Defence and to delineate the issues at trial.

The court, agreeing with the plaintiff, ruled that the defendants' motion should be adjourned until the plaintiffs had conducted its Examinations for Discovery. If the defendants still wanted particulars at that time, they would be at liberty to re-apply.  read more »

Pilot Program Starts at Vancouver Robson Square and Richmond Small Claims Courts

Topics: - Civil Procedure
Jurisdiction: - British Columbia

A pilot project which comes into effect on November 26, 2007 introduces the following changes at the Vancouver Robson Square and Richmond Small Claims Courts.

Simplified Trials

  • Senior civil or arbitration lawyers will determine matters (except debt claims - see below - and personal injury claims) between $0 - $5,000 in an expedited arbitration-like process. 
  • Note: there are differences in the way these trials will function in Vancouver and Richmond. 

Summary Trials 

  • All institutional debt claims between $0 - $25,000 (like credit card debt claims) will be diverted to a separate track which will be heard and determined by judges in a summary process without a settlement conference. 
  • This applies only to Vancouver Robson Square.

Mandatory Mediations  read more »

"Limitation Period Revised for Wrongful Dismissal Claims"

Jurisdiction: - Ontario

André Nowakowski, a lawyer at Miller Thomson LLP, has written a brief entitled, "Limitation Period Revised for Wrongful Dismissal Claims" (January 23, 2004) in which he writes that the limitation period for wrongful dismissal claims in Ontario has been reduced from six years to two years.