Michael Markicevic v. York University
(Ont.) (Civil) (By Leave)
Canadian charter (Non-criminal) - Right to a fair hearing (s. 11(d)), Civil procedure, Costs, Contracts, Validity - Charter of Rights — Right to fair hearing — Civil procedure — Costs — Security for costs — Contracts — Validity — Release clause — Order rescinding severance agreement between parties after finding applicant committed fraudulent acts — Whether Court of Appeal contravened Charter of Rights by constraining applicant’s scope of appeal by awarding security for costs? — Whether a contract can be void for misrepresentation by fiduciary, which other party suspects is false, yet knowingly bargains away remedy it now seeks? — Whether communication can be relied upon to void contract, entered into by sophisticated party with legal counsel, while knowingly acting on imperfect knowledge amidst conducting its own investigation? — Whether terminated fiduciary employee has a duty to disclose that which the principal suspects and specifies need not be disclosed? — Whether Court of Appeal may rely on lower court finding of fraud to support its security for costs and appellate decisions? — Whether Court of Appeal may rely upon incomplete, speculative analysis to subjectively opine on York’s knowledge in support of lower court’s findings?.
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Mr. Markicevic was employed by the respondent, York University, from 2004 to 2010. Beginning in December 2009, senior York officials began to receive allegations of theft and fraud concerning Mr. Markicevic. Initially no one wanted to come forward on the record but eventually, in January 2010 a whistleblower provided evidence of fraud. Mr. Markicevic denied any inappropriate activity. The senior officials decided to terminate Mr. Markicevic without cause, but also decided to continue their investigation into his activities. The parties executed a severance agreement in February 2010 whereby York agreed to pay Mr. Markicevic 36 months’ gross salary. The agreement also contained a release clause in which York agreed it would not initiate any proceedings against Mr. Markicevic arising out of his employment. On January 26, 2012, after completing its investigation into Mr. Markicevic’s activities, York commenced an action against Mr. Markicevic, claiming damages for deceit, conversion, breach of fiduciary duty, knowing receipt and conspiracy. Mr. Markicevic took the position that the release clause precluded York from bringing the action, and that the claim was also statute barred. The trial judge ordered rescission of the agreement and ordered Mr. Markicevic to pay damages and costs. The Court of Appeal first ordered that he pay security for costs then dismissed his appeal.
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