Ontario Small Claims Court Judge Awards $8,000 in Costs Against Unsuccessful Wrongful Dismissal Claimant

One of the most commonly held beliefs about the civil justice system is that the losing party has to pay the winning party’s legal fees. While that belief is not entirely correct, it is not entirely wrong either.

Civil courts in Ontario have the right to award “costs” following a “proceeding.” Without wading too far into the semantics, “costs” is not the same thing as the amount that one has paid his or her lawyer, and “a proceeding” may be a trial, but it may also be something else.

The issue of costs in the Ontario Small Claims Court is both more simple and more complex. What makes matters easier is that the law prescribes that the basic amount of costs to which a successful party will be entitled following a trial is 15% of the amount claimed, plus actual disbursements. With a jurisdictional limit of $25,000, that means that if one sues for $25,000, then costs may typically be in the range of $3,750, i.e. 15% of the amount claimed.

Where things get complicated is that the law also says that judges have discretion to award more or less money for costs. The law also allows the judge to award costs to the losing party.

Decisions on costs from the Ontario Small Claims Court are rare. Judges rarely issue written reasons for the costs award, and even when judges do write out their reasons they are infrequently reported.

In 2015, I was involved in a Small Claims matter where the plaintiff alleged that she was wrongfully dismissed. I acted for the defendants in that case. On January 1, 2016, the Honourable Deputy Judge Lyon Gilbert dismissed the plaintiff’s case for reasons reported as Barton v Bowerman, 2016 CanLII 30100 (ON SCSM). Following the trial the judge invited the parties to make submissions on the amount of costs that should be awarded.

Following the presentation of written submissions, Deputy Judge Gilbert awarded the defendants, for whom I acted, $8,000.00 in costs. The court’s reasons can be found by clicking the following link: Costs Decision in Barton v Bowerman. Ottawa Small Claims Court. Court File No. 14-SC-130470. January 18, 2016.

Who’s the Boss? Determining One’s Employer at Ontario Law

“Who's the Boss?” was an American sitcom created by Martin Cohan and Blake Hunter, which aired on ABC from September 20, 1984 to April 25, 1992. The series starred Tony Danza as a retired major league baseball player who relocates to Fairfield, Connecticut to work as a live-in housekeeper for a divorced advertising executive, Angela Bower, played by Judith Light. Also featured were Alyssa Milano, Danny Pintauro and Katherine Helmond.

The title of the show refers to the clear role reversal of the two lead actors, where a woman was the breadwinner and a man (although he was not her husband) stayed at home and took care of the house. The show is credited for challenging contemporary stereotypes of Italian-American young males as macho and boorish and wholly ignorant of life outside of urban working-class neighborhoods, as Tony was depicted as sensitive, intelligent and domestic with an interest in intellectual pursuits.

Things have changed in 30 years.

In employment law, sorting out “who’s the boss” can sometimes be no easier, as the case of Sproule v Tony Graham Lexus Toyota, 2016 ONSC 2220 (CanLII) makes plain.

HRTO Declines to Punish Employer who Breached Terms of Settlement

What is the penalty or punishment for failing to honour the terms of settlement entered into in an Ontario Human Rights case?

Like most things in law, the answer is “it depends.” However, as the case of Inman v. Seniors on Site, 2016 HRTO 723 demonstrates, sometimes people can break their word, break a written contract, and seemingly get away with it.

Divisional Court endorses Wunderman, Rejects Ford v Keegan

If an employment contract’s termination provision has the potential to violate the Ontario Employment Standards Act, 2000, but is legally compliant at the time of termination is it legal or not?

The issue has been litigated several times. On February 16, 2016, the Honourable Justice Laurence A. Pattillo, writing on behalf of the Ontario Divisional Court, provided his position on the debate in the case of Garreton v Complete Innovations Inc., 2016 ONSC 1178 .

Employees’ Rights under the Ontario Human Rights Code are Not Infringed by a “Failure to Accommodate”

Is an employee required to prove that his employer “failed to accommodate” his parental status in order to succeed in a human rights case in Ontario? Or must the employee establish only that his employer breached his rights? Does an employee have a freestanding right to be "accommodated to the point of undue hardship?"

In a case concerning an employee whose employment was terminated after he took days off work to care for his sick children, Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41, Vice-Chair Sheri D. Price confirmed that an employer’s inability to accommodate an employee’s family status operates as a defence to an allegation; it is not a requirement of the applicant to show that the employer could not do so.

Human Rights Adjudicator Allows Employee to Take Entire Summer Off to Care for Disabled Child

Is a request to take leave without pay from mid-July to the end of August, in order to care for one’s disabled child, a reasonable request, which an employer must accommodate to the point of undue hardship?

For most employers unfamiliar with the provisions of human rights legislation, the question may seem ridiculous or incredible. Certainly no employee could demand to have the entire summer off, simply because one’s child is not in school.

However, in a decision released by the Northwest Territories Human Rights Adjudication Panel, A.B. v Yellowknife (City), 2016 CanLII 19718 (NT HRAP), the answer was that the employee was entitled to have the requested leave of absence and a finding was made that the employer had discriminated against the employee, on the basis of family status, by failing to accommodate her to the point of undue hardship.

Employee "On Probation" Terminated Without Cause after Five Months of Employment Not Entitled to Any Notice: Div Court

What is the legal effect of being “on probation”? While this blog has looked at the issue of an employee being employed pursuant to a written employment contract containing a period of probation, (see Ontario Court Awards Four Months Notice to Employee Fired while “On Probation”), a recent decision from the Ontario Divisional Court provides a new wrinkle to this issue.

In Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 the Ontario Divisional Court, sitting as the court of appeal from a decision of the Ontario Small Claims Court found that “in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”

For the reasons argued below, I would respectfully submit that the court in this case got it wrong.