Executive Summary: Key Legal and Evidentiary Issues

• The court granted default judgment against the defendants after they failed to respond to the statement of claim.

• Justice Dow applied the "common employer" doctrine to hold the corporate defendants and Tony Xynos jointly liable.

• Evidence established that the plaintiff was constructively dismissed following a pattern of delayed and unpaid wages.
   
• Unpaid wages of $40,500 were awarded based on the plaintiff's uncontested calculations.
   
• Statutory termination pay of $8,553.85 was granted under section 56(1)(b) of the Employment Standards Act.
   
• Additional damages of $60,000 for bad faith and high-handed conduct were also awarded alongside costs of $14,218.68.
   

Facts of the case

Brian Allan Cutajar [styled "Brial Allan Cutajar" in the style of cause of the source document] commenced employment with Automobile Specialities Inc. and 11049780 Canada Ltd. (operating as Automotive Specialities Group) as an automotive service technician in June or July of 2004. Over the course of his employment, the plaintiff experienced a repeated pattern of delayed or unpaid wages. This pattern culminated in the plaintiff asserting constructive wrongful dismissal in writing on April 26, 2025. He secured alternative employment approximately six weeks later, on June 9, 2025. Tony Xynos [styled "TonyXynox" in the style of cause of the source document], described as the controlling mind of the corporate defendants, was personally served with the material on March 19, 2026, and had earlier acknowledged receipt of the statement of claim in June 2025, requesting additional time to retain counsel. No further contact followed from Tony Xynos or any counsel on the defendants' behalf. Justice Callaghan had scheduled the default judgment motion on March 11, 2026 to proceed in writing during the week of April 27, 2026 if the defendants failed to respond to personal service; the matter was assigned to Justice Dow on June 26, 2026. At the time employment ended, the plaintiff, then 41 years old, was earning $55,600 per year, and $40,500 in net unpaid wages had accrued. No Record of Employment was ever issued to the plaintiff.

Policy and legislative provisions at issue

Central to the decision was section 56(1)(b) of the Employment Standards Act, 2000, S.O. 2000, c. 41, which entitled the plaintiff to statutory termination notice pay. The plaintiff calculated this entitlement at $8,553.85, less applicable deductions. Also relevant were regulations under the same Act requiring employers to issue a Record of Employment, a requirement the defendants failed to meet. Beyond the statutory framework, the court considered the common law "common employer" doctrine, which attributes liability across affiliated corporate entities where the line between them has been blurred, and relied on the precedent set in Colistro v. Tbaytel, 2019 ONCA 197, addressing constructive dismissal arising from an employer's failure to pay wages as they fall due.

Reasoning and analysis

Seven issues were before the court. On the first, Justice Dow found the matter appropriate for summary judgment, noting that wrongful dismissal cases where cause is not disputed are well suited to this process. Addressing the second issue, the court found all defendants liable under the common employer doctrine, given the blurred distinction between the corporate entities and Tony Xynos, and the plaintiff's work under a sign reading "Automotive Specialties" [rendered "Automobile Specialities" and "Automotive Specialities" elsewhere in the source document] at a location on Shephard Avenue East. Turning to the third issue, the court accepted the plaintiff's calculation of unpaid wages and awarded the full $40,500 sought. On the fourth issue, relying on Colistro v. Tbaytel, the court held that a repeated failure to pay wages when due breaches the most fundamental term of the employment relationship, amounting to constructive dismissal. Regarding the fifth issue, the court confirmed the plaintiff's entitlement to the statutory termination pay of $8,553.85, finding this amount unaffected by his mitigation efforts. Considering the sixth issue, the court accepted the plaintiff's claim for extraordinary damages spanning bad faith and punitive conduct, awarding the full $60,000 sought as appropriate in the circumstances. Finally, on the seventh issue, the court placed the onus of proving a failure to mitigate on the defendants, who provided no evidence on the point; noting the plaintiff secured alternative employment within six weeks (against a potential notice period of 15 to 18 months had he been dismissed without cause), the court found no basis to reduce the damages award.

Ruling and overall outcome

Justice Dow issued judgment in favour of the plaintiff, Brian Allan Cutajar, against all defendants. The court awarded $40,500 in unpaid wages, $8,553.85 in statutory termination pay, and $60,000 in additional damages for bad faith and high-handed conduct. On costs, the court awarded partial indemnity fees of $11,408.38, plus HST of $1,483.09 and disbursements of $1,327.21, for a total costs award of $14,218.68. The decision does not state a single consolidated figure combining these amounts. Signed judgment was ordered to issue accordingly.