Employer Claims Plaintiff Produced Fraudulent Mitigation Record : She Didn’t

In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 Justice Perell was faced with a allegation by the Defendant that the Plaintiff produced a fraudulent internet  job search record.

Here are some of the judges comments on this approach :

[4] Releasing the dogs of litigation war and going for the jugular, Walt Dentistry submits that Ms. Gracias falsified her evidence of mitigation with fabricated records of her Internet job applications.

[26] In preparing for the summary judgment motion, Dr. Walt reviewed Ms. Gracias’ document brief about mitigation. Because he was skeptical about why someone as qualified as Ms. Gracias would allegedly have difficulty finding a new job, he examined the .pdf documents, and he noticed some discrepancies in the documents. He believed that Ms. Gracias had fabricated evidence. Walt Dentistry retained Mr. Hatch, an expert forensic examiner, to determine whether there was some substance to Dr. Walt’s suspicions. Dr. Walt made investigations of his own to validate or refute the evidence proffered by Ms. Gracias. Dr. Walt contacted Drs. Laski, Nikolovski, and Weiss, and they respectively were prepared to and did swear affidavits for the summary judgment motion. Those affidavits cast doubt on whether Ms. Gracias applied for jobs with the affiants’ dental clinics. With the dentists’ affidavits and Mr. Hatch’s report casting doubt on the veracity of Ms. Gracias’ evidence of mitigation, in March 2022, one month before the summary judgment motion in an action that had diminished to a less than $50,000 claim, Walt Dentistry sets out to prove that Ms. Gracias had falsified her evidence of mitigation.

[35] The second step of the analysis of the alleged mitigation fraud is statistical, and this step involves classifying the evidence of Ms. Gracias’ job applications that are listed in her mitigation log. There are 139 job applications in Ms. Gracias’ mitigation log of which 138 job applications were made by Ms. Gracias between March 16, 2020 and December 18, 2020. There is also an application of April 28, 2021 to Village Orthodontics Dental Corp., which was logged mistakenly as being submitted on April 28, 2020. The parties and Mr. Hatch overlooked that this email message was mistakenly included in the log and in the undertaking briefs. 

[36] As detailed below, 102 of the 139 job applications are alleged by Walt Dentistry to have been fabricated. As detailed below, 37 of the 139 job applications have not been impugned by Walt Dentistry. 

[37] Ninety-six of the 139 applications are before September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. Forty-three of the 139 applications are after September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. 

[38] Eighty-nine of the 139 application emails are messages from the job recruitment web site Indeed.com. 

[39] Eighty-six of the 89 Indeed.com emails are challenged as falsified. These emails are identified by having an automatically populated field indicating the email address of a prospective employer, but the hyperlink (connection to a webpage) back to that prospective employer is apparent but not real and “the follow hyperlink,” which does activate, invariably connects to Forest Hill Village Orthodontics, to whom Ms. Gracias had made a job application on March 1, 2020. 

[40] Dr. Walt had communications with: (a) Dr. Laski (with respect to two of the Indeed.com applications); (b) Dr. Nikolovski (with respect to one of the Indeed.com applications); (c) Dr. John Bozek (with respect to one of the Indeed.com applications); and (d) Dr. Tracy Handler (with respect to two of the Indeed.com applications). These dentists were principals of dental clinics listed on Ms. Gracias’ mitigation log. The dentists searched their respective office records and none of them could find evidence of job applications to them from Ms. Gracias. 

[41] Three of the 89 Indeed.com emails appear to be genuine, namely: 

  1. a. The July 15, 2020 email acknowledging an application to Overtus Medical. 
  2. b. The July 15, 2020 email acknowledging an application to 123 Dentist. 
  3. c. The April 28, 2021 email acknowledging an application to Village Orthodontics Dental Corp. This is the application misdated in Ms. Gracias’ mitigation log. 
  4. [42] Mr. Hatch’s findings and opinion with respect to the Indeed.com emails is as set out below. 

As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication. 

In my professional opinion as a digital forensics expert, 86 out of the 89 Indeed Emails contain two suspicious anomalies that call their authenticity into question. First, the blue, underlined text describing the job applied for appears to be a hyperlink, but is not actually a hyperlink. Second, the “Follow” button links out to a different employer from the one shown in the email. 

In stark contrast, the 3 Indeed Emails that do not have these two suspicious anomalies contain the correct characteristics that one would expect to see from a legitimate Indeed application confirmation email. Those 3 Indeed Emails have a hyperlink embedded in the blue, underlined text containing the description of the job applied for and the “Follow” button links out to the matching employer that is shown in the email. 8 

According to my analysis, it is my professional opinion that the emails shown at pages 61, 132 and 160, are legitimate. However, I have significant reason, outlined in this report, to seriously question the authenticity of the other 86 Indeed Emails. 

As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files). 

[43] In addition to examining the Indeed.com emails, Mr. Hatch identified 9 email messages on Ms. Gracias’ Hotmail.com email account as having suspicious anomalies. He identified two types of anomalies. First, the parentheses on the left and right of the text of the email address were separated by a space, which is unusual. Second, placing a cursor over the email address text within the parentheses produced a hyperlink to “oasismarkham@gmail.com” which was inconsistent with the correspondence to the prospective employer identified in the email message. 

[44] Mr. Hatch’s findings and opinions with respect to the nine emails are set out below: 

As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication. 

In my professional opinion as a digital forensics expert, the purported emails shown at pages 46, 47, 48, 50, 53, 73, 102, 110 and 115 of the Undertakings show anomalies that raise serious doubt as to their authenticity. 

As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files). 

[45] The third step in the analysis is to consider the matter of motive and the evidence of Ms. Gracias and the opinion of Mr. Hatch. This analytical step is necessary because in the absence of motive, it is more plausible and more logical to attribute the anomalies to mistake, accident, mystery, or misadventure than is it to attribute the anomalies to fraud and falsification. 

[46] Ms. Gracias’ evidence was that she genuinely made the job applications. She cannot explain the anomalies discovered by Dr. Walt and confirmed by Mr. Hatch. I believed her evidence which was more plausible than the evidence that she falsified the evidence of mitigation. 

[47] There was no purpose to fabrication, and it would be idiotic for her falsify evidence. As the discussion later in this decision will reveal, the onus of proving a failure to mitigate was on Walt Dentistry. She had 37 of the 139 job applications that are acknowledged to be genuine. That would have been enough to rebuff Walt Dentistry’s attack, because the law is that mitigation needs only to be reasonable not comprehensive, and she did not need so much evidence, nor did she need to prove that she applied to every dental job posted on Indeed.com or posted elsewhere. 

[48] Moreover, if she needed to apply for every dental job posted on Indeed.com or elsewhere about jobs in the vicinity of her home in Markham, Ontario, to prove mitigation, then why labour at fabricating 102 applications after the fact when making genuine applications was easily facilitated by the Indeed.com webpage and her own email account? Why include 43 applications after September 16, 2020, at which time Ms. Gracias had accepted a job offer from Transitions Consulting? It is more plausible that the impugned emails are the product of mistake than of misfeasance. 

[49] The fourth step in the analysis is to note the paucity of the evidence about fabrication of .pdf documents. Mr. Hatch’s opinion identified anomalies in the emails, and while he provided an opinion of how the anomalies could be the product of advertent manipulation, he did not opine on whether the anomalies could be the product of mistakes in fashioning an email message using a copy of the email messages that Ms. Gracias had sent on February 26 or 27, 2020 to Oasis Orthodontics and on March 1, 2020 to Forest Hill Village Orthodontics, while still employed at Walt Dentistry. Mr. Hatch was only given the brief of documents. Neither he nor I have any idea of what Ms. Gracias testified at her examination for discovery about how she went about preparing her job applications. Further, there was no evidence from either side about how Indeed.com operates and whether or not email applications could be misdirected by mistaken entries. There was insufficient evidence to come to the conclusion that Ms. Gracias fabricated her job applications. 

[50] The last step in the analysis is to consider what is the weight and significance of all of the evidence about the alleged mitigation fraud. Weighing all the evidence, I conclude that while it is possible that the evidence of mitigation was altered, it is far more plausible that the anomalies are a product of mistake or misadventure in Ms. Gracias’ use of Indeed.com or her use of her personal email account. With respect to the evidence of Drs. Laski, Nikolovski, and Weiss and the hearsay evidence of Drs. Bozek and Handler, that they did not find evidence of applications from Ms. Gracias, this evidence can be understood as consistent with the more plausible explanation that Ms. Gracias’ emails were misdirected by mistake and not fabricated after the fact, which she denied doing. 

[51] Finally, there is the matter of Mr. Hatch opining that he could discover more about the genuineness of the email messages by examining electronic versions of the email files in their native format (probably, .eml or .msg files). 

[52] With the summary judgment motion imminent, in response to the request that Ms. Gracias provide copies of the original email messages, she did not do so, and she explained that she had been the victim of a computer hack of her email files. I accept that this is a suspicious coincidence, but Internet hacks of email accounts are not uncommon, and more to the point, for the reasons I have already expressed, it remains more plausible that the impugned emails are the product of mistake or misadventure than of a grand and continuing mitigation fraud. 

[53] I am not persuaded that Ms. Gracias fabricated her evidence of mitigation. I find as a fact that there was no failure to mitigate. 



Thw award in this case was only 3 months of reasonable notice, which considering that she had only been employed for 5 months, is pretty good. This came to $17,587.

Can you imagine how much the Defendant must have spent on this failed mitigation argument? They actually hired a forensic expert !

The issue of costs is not decided. If the Plaintiff had an operative Rule 49 offer on the table for less than $17,587 , then the presumptive rule is that the Plaintiff would get partial indemnity costs up the date of the offer and substantial indemnity thereafter. Moreover,  my understanding of the law of costs is that if you allege fraud and fail to prove it, the Court can also award substantial or even full indemnification of costs.   The cost award could easily dwarf the judgement amount.

If you like a copy of the case, email me at barry@barryfisher.ca


Another Case in the CERB Deductibility Debate : This Time Not Deductible :

In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 Justice Perell had this to say about the issue:

Is the CERB Deductible from the Damages for Dismissal without Cause?

[112] As noted above, after her dismissal from employment, which occurred during the Covid-19 pandemic, Ms. Gracias received $16,000 in CERB payments.
[113] In the British Columbia case of Shalagin v. Mercer Celgar Limited Partnership,41 CERB payments, like unemployment insurance benefits, were deducted from the compensation payable in lieu of notice.
[114] In contrast, in the Ontario case of Iriotakis v. Peninsula Employment Services Limited,42 the Nova Scotia case of Slater v. Halifax Herald Limited,43 and in the British Columbia case of Snider v. Reotech Construction Ltd.,44 CERB payments were not deducted from a wrongful dismissal reward.
[115] I agree with the reasons in Iriotakis, Slater, and Halifax Herald, and hold that CERB is not a mitigation credit in the immediate case.

Again, no analysis just a conclusion. Unfortunate.

If you like a copy of this case, email me at barry@barryfisher.ca

Ontario Court of Appeal Dodges Question of Whether IDEL Temporary Layoff Constitutes Constructive Dismissal Under the Common Law :

In Taylor v. Hanley Hospitality Inc., 2022 ONCA 376 the Ontario Court of Appeal was faced with the issue as to whether the IDEL rules under the ESA overruled the common rules that says in most cases a temporary layoff constituted a constructive dismissal and thus the employee would be entitled to reasonable notice.

However there was another ground of appeal, namely whether a Rule 21.01 motion ( Determination of an Issue Before Trial ) was the appropriate mechanism in this case.

The Court decided that such a motion was not appropriate in this case.

They then decided that even though both parties wanted an answer on the bigger issue of IDEL v Common Law, they declined to do so and sent it back for a determination at a trial.

Here is what they said on that issue:

(c)         Should this court interpret s. 50.1 of the ESA and O. Reg. 228/20?

[43]       The parties urged this court to interpret s. 50.1 of the ESA and O. Reg. 228/20. They submit that even if these provisions are ultimately found not to apply to the appellant’s circumstances in this case, this court’s interpretation of them will nevertheless be useful to the parties and provide guidance on these issues for employees and employers in general.[1]

[44]       I am not persuaded by these submissions.

[45]       The parties are now essentially seeking a standalone declaration of the meaning of s. 50.1 of the ESA and O. Reg. 228/20. Divorced from any factual foundation, the issue is academic at this stage of these proceedings because it would not resolve the fact-driven dispute between the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at para. 15. As a result, it is at this court’s discretion whether the issue should be entertained and determined at this stage: Borowski, at para. 16. I would refrain from interpreting the provision and regulations. Not only was this remedy not sought in the parties’ respective pleadings, but for the reasons stated above, this panel has neither the record nor the submissions that would permit us to carry out a proper analysis of s. 50.1 of the ESA and O. Reg. 228/20.

[46]       As I earlier noted, the present case is a fact-driven case. Whether the provisions apply to the appellant’s circumstances, or if they do not, and whether she can make out a claim for constructive dismissal and damages, are issues very much in dispute. The requested statutory interpretation at large is therefore not necessary at this stage for the determination of the appellant’s action.

[47]       The statutory interpretation issue, along with the other issues in dispute, should be remitted to the Superior Court of Justice for determination on a proper record. I note this was the appellant’s position before the motion judge and her alternate position on appeal.

[48]       The issues as framed did not require the parties to give the requisite notice of a constitutional question to the Attorney General of Ontario under section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, it appears to me that the court determining the issue of the interpretation of s. 50.1 of the ESA and O. Reg. 228/20 in the circumstances of this case could very well benefit from submissions from the Attorney General of Ontario with respect to the legislative intent and context of these provisions. The parties should consider whether notice should be given to the Attorney General of Ontario for that purpose.


I must say that on a policy level, I was disappointed that the Court did not answer the big question so that we could have some certainty going forward. This uncertainty will now go on for an extended period of time. Perhaps some other case will proceed to trial before this one and then on that appeal, we will have a clear answer.

But I am not holding my  breath.

I understand that there are now two trial decisions supporting the Plaintiff’s position and I don’t believe either of them are under appeal. If I wrong about this, someone please correct me.

By the way, the AG of Ontario did seek and obtained Intervenor status in this appeal for the purpose of supporting Ms Taylor’s position and then for some unknown reason they withdrew from involvement a few months before the hearing. One wonders if the AG hadn’t withdrawn whether the Court would have been more inclined to look at the bigger issue.

If you want a copy of this case, email me at barry@barryfisher.ca

Being a Busy President is Not Grounds to Avoid Being Examined for Discovery:

In Nezhat-Mahal v. Cosmetica Laboratories Inc., 2022 ONSC 2458 Justice Vermette ruled that the Plaintiff’s choice to examine the President in a wrongful dismissal action was allowed because :

1. The President was the plaintiff’s direct supervisor.
2. The President signed the termination letter.
3. The President had sufficient ( not the best ) knowledge of the issues and facts.
4. The person that the Defendant proposed to be examined was the Plaintiff’s subordinate.
5. The fact that the President was a busy executive running a company of 658 employees who did not have the time to review the 3,000 pages of largely technical documents was not sufficient to oust the initial right of a party to choose which corporate representative they wished to examine.

If you like a copy of this case email me at barry@barryfisher.ca

Another Court Determines that Termination During COVID Pandemic Extends the Notice Period :

In Miller v. Luminultra Technologies Ltd ( 2022 NBQB 060) Justice Morrison had this to say when awarding a 10 month notice period to a 55 year Marketing Manager with 6 years service who was terminated two months into the pandemic :

Plaintiff’s counsel suggests that consideration of the pandemic in determining reasonable notice constitutes a novel issue and that, in considering the same, this Court would be making “new law”. I do not necessarily agree with that characterization. In my view, the pandemic and its impact on the labor market is merely an extension of one of the factors the Court is directed by Bardal to consider: availability of alternative employment. While there is no evidence in the Record of the specific impact of the pandemic on Ms. Miller or the job sector in which she was seeking employment, there can be little doubt that the pandemic and the shutdowns associated with it would have had some impact on Ms. Miller’s ability to find new employment. I agree with the reasoning in Iriotakis that the pandemic is one of many factors to be considered when assessing reasonable notice. I also agree that termination at the point in the pandemic when the Plaintiff was terminated would tend to “tilt” the reasonable notice towards a longer range. Having regard to Ms. Miller’s age, her length of service (six years) and availability of alternative employment, I conclude that the reasonable period of notice is 10 months.

If you would like a copy of this case, email me at barry@barryfisher.ca

Ontario Court of Appeal Explains Difference Between Common Law Just Cause and ESA Wilful Misconduct :

In Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 Justices Feldman, Pepall and Tulloch reviewed a trial decision in which a long service employee was found to have been terminated for just cause because he slapped a female co-worker on her buttocks.

The court upheld the trial judges’ termination that this single incident amounted to just cause under the common law but found that it did not constitute wilful misconduct under the ESA. The net result was that the Plaintiff was awarded only his ESA entitlements.

This is what the Court said on this issue :

[79]       The law on the interpretation of the prohibition sections has been consistently stated to require more than what is required for just cause for dismissal at common law. In Plester v. Polyone Canada Inc., 2011 ONSC 6068, 2012 C.L.L.C. 210-022, aff’d 2013 ONCA 47, 2013 C.L.L.C. 210-015 (the reasons on appeal found it unnecessary to address this point), Wein J. explained that in order to be disentitled from the ESA entitlements under the “wilful misconduct” standard in the Regulation, the employee must do something deliberately, knowing they are doing something wrong. In the case before Wein J., the conduct was not preplanned and not “wilful” in the sense required under the test, which she described as follows at paras. 55-57:

The test is higher than the test for “just cause”.

“In addition to providing that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose”.

Both counsel seemed to be slightly bemused by the recent authorities that distinguish between the definition of just cause and wilful misconduct. In my view, however, the distinction is quite obvious: Just cause involves a more objective test, albeit one that takes into account a contextual analysis and therefore has subjective elements. Wilful misconduct involves an assessment of subjective intent, almost akin to a special intent in criminal law. It will be found in a narrower cadre of cases: cases of wilful misconduct will almost inevitably meet the test for just cause but the reverse is not the case.

The conduct of Mr. Plester was serious, and his failure to report deliberate. However, it did not rise to the very high test set for disentitlement to the statutory notice benefit. It was not preplanned and not wilful in the sense required under this test. There was an element of spontaneity in the act itself and at most a “deer in the headlights” freezing of intellect in the delay in reporting. On these facts willful misconduct should not be found. [Emphasis added.]

[80]       The differing standards at common law and under the ESA are further discussed in a number of cases, as well as in the Ministry of Labour’s Employment Standards Act Policy and Interpretation Manual (2020). The Manual states: “this exemption is narrower than the just cause concept applied in the common law and in collective agreement disputes. In other words, an arbitrator or a judge may find that there was just cause to dismiss an employee, but this does not necessarily mean that the exemption in paragraph 3 of s. 2(1) applies.” This principle has also been followed in a number of other authorities: see, e.g., Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, 75 C.C.E.L. (4th) 86, at paras. 16, 19, leave to appeal to Ont. C.A. requested, M53078; Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, at para. 73; Ojo v. Crystal Claire Cosmetics Inc.,2021 ONSC 1428, 60 C.C.P.B. (2nd) 200, at para. 14; and Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, 52 C.C.E.L. (4th) 89, at para. 53.

[81]       In my view, the appellant’s conduct does not rise to the level of wilful misconduct required under the Regulation. While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned. Indeed, his findings with respect to the circumstances of the touching are consistent with the fact that the appellant’s conduct was done in the heat of the moment in reaction to a slight. Although his conduct warranted dismissal for cause, it was not the type of conduct in the circumstances in which it occurred that was intended by the legislature to deprive an employee of his statutory benefits.

My Comments :

First of all I should note that my son, Matthew Fisher was trial counsel for the Plaintiff. However Chris Foulon was counsel for the Plaintiff at the Court of Appeal.

Secondly, this case sets out with great precision how difficult it is to prove wilful misconduct now that the  employer must prove a subjective intent, almost akin to the criminal test of intent.

If you wish a copy of this case, please email me at barry@barryfisher.ca

First Ontario Case to Say that CERB is Deductible from Wrongful Dismissal Damages :

In Livshin v. The Clinic Network Canada Inc., 2021 ONSC 6796 (CanLII) Justice Black had this to say about the CERB deductibility debate.

[93]        I agree that the amount of $8,000 that Livshin received in Canada Emergency Response Benefits (CERB) should be deducted from the overall award.

That’s it. That was the complete analysis.

If you want a copy of this case email me at barry@barryfisher.ca

Termination Clause is Illegal Even Though Parties Were Sophisticated

In Livshin v. The Clinic Network Canada Inc., 2021 ONSC 6796 (CanLII) Justice Black had a situation where the termination clause referred to ” just cause” and as such was illegal under the Waksdale case. The Defendant argued that this should not matter as the parties were highly sophisticated, were both represented by lawyers and that the employment agreement was part of a larger sale of business transaction .

The Court held that there was no ” commercial imperative ” that prevented the contract from complying with the ESA.

This is the part of the decision that I love.

The Defendant argued that because the Plaintiff had a lawyer in his negotiations, he should be held to the contract, even if it was technically illegal . The Court’s response was as follows:

“TCN’s argument that Livshin’s representation by counsel should result in him being taken to understand the potential pitfalls of the Employment Agreement at issue here might be turned back on TCN to suggest that an employer, represented by counsel, particularly in the period after the Court of Appeal’s decision in Fred Deeley, ought to know better than to draft a termination provision that fails to comply with the ESA.”

The result of this illegality was immense as the employment contract was a for three year fixed term and thus the breech meant that the Plaintiff was entitled to the balance of the contract, not just reasonable notice . Thus the Plaintiff received compensation for 20 months , with no duty to mitigate.

I have always said that the most important part of any employment contract is the termination clause.

If you would like a copy of this case, email me at barry@barryfisher.ca

Court Distinguishes Between Independent and Dependent Contractor:

In 1159273 Ontario Inc. v. The Westport Telephone Company Limited (2022 ONSC 1375) Justice Kershman had to determine whether the relationship between the parties was that of an independent contractor vs a dependant contractor as the Defendant had terminated the Plaintiff. The Plaintiff was not claiming an employment relationship.

In finding that the relationship was that of an independent contractor, the Court was influenced by the following factors :

  1. The two principals of the corporate entities, ( Tom was the Plaintiff and Steve the Defendant) arranged their complex corporate structure with the help of professional tax advisors, thus the structure was not imposed on the Plaintiff.
  2. Tom was a traditional employee of the Defendant from 1977 to 1996. From 1996 until his termination in 2019 he carried out the same duties but through the corporate Plaintiff.
  3. Tom worked full time for the defendant ( 40 hours a week ) and had the title of Director of Technical Services, President and Vice President at various times.
  4. Tom was a shareholder, an officer and a director of the Defendant. Tom and/or the corporate Plaintiff owned one third of the shares in the Defendant until shortly before his dismissal.
  5. An analysis of Tom’s income tax returns indicated that for a a period of 4 years  only 50% of his income came from the Defendant where the other 50% came from other sources. Of the last two years of his relationship with the Defendant , 70% of his income came from the Defendant and the remaining 30% came from other sources.
  6. The primary source of the income from other than the Defendant was from Ancillary Companies, which were all related to the Defendant.
  7. Tom’s income ( not the corporate Plaintiff) derived between 52 % 71% of his income from the Defendant, according to the relevant tax returns. The Court  found that this did not amount to income exclusivity, the central component of a dependant contractor relationship.
  8. Steve and Tom are brothers.
  9. Tom was publicly identified as an owner of the Defendant .
  10. Although Tom had various  executive titles, the Plaintiff, which is a corporation, did not. Of course it is obvious that only a real person can be an officer or a director.
  11. For the time that the Plaintiff had some shares in the Defendant, Tom effectively had some control over the Defendant as he was also a director and an officer, thus the Defendant did not control the Plaintiff to the degree necessary for a dependant contractor relationship to exist.
  12. Notwithstanding that the Defendant provided Tom with an office and thus the tools necessary to do his job, the Judge found that was not a factor in favour of dependant contractor status.
  13. Although there was no expectation of profit or loss in the consulting agreement between the Plaintiff and the Defendant, when one looked at the big picture, Tom ( who was not a personal litigant ) made a profit or a loss dependant on the overall success of the Defendant as he  was a shareholder for most of the time but not at the end.
  14. Although Tom was an integral part of the Defendant, the corporate Plaintiff was not.

My Comments:

This case is very troubling .

At times the judge completely separates Tom from the corporate Plaintiff as when he said that although Tom was the President of the Defendant , the corporate Plaintiff was not. and when he said that although Tom was an integral part of the Defendant the corporate Plaintiff was not.

At other times he looks at the tax returns of Tom, not the corporate Plaintiff, to determine what portion of the income was derived from the Defendant. and what was derived from other entities.

The Judge said at one point that 71% does not show economic exclusivity but 88% does ? Where is the dividing line?  The Judge quoted a Court of Appeal case which states the test as follows:

Exclusivity is a categorical concept — it poses an either/or question, and “near-complete exclusivity” must be understood with this in mind. “Near complete exclusivity” cannot be reduced to a specific number that determines dependent contractor status; additional factors may be relevant in determining economic dependency. But “near-exclusivity” necessarily requires substantially more than 50% of billings. If it were otherwise, exclusivity — the “hallmark” of dependent contractor status— would be rendered meaningless.

I would think that 71% was  “substantially more than 50% of billings”.

In any event, as the Judge found that the Ancillary Companies were the source of the other 30% of his non passive income and that the Ancillary Companies were all related to the Defendant, in essence 100% of his non passive income came the Defendant and its related entities.

Moreover the Judge mentioned a few times that this complicated corporate structure was designed by professionals to minimize Tom’s ( not the corporate plaintiff’s) income tax liability. So what. How is that relevant?

Excuse me, this should have been seen as a simple case of a person who for years was considered to be an employee of the Defendant and then the parties decided to change the structure to save taxes but the Plaintiff continued in the same functional role as before. Whether Tom made other monies over and above his full time job with the Defendant should also be irrelevant. Full time employees often have second or even third jobs. One can wear different hats at the same time. You can be an employee, a director, an officer and even a shareholder. Each has their own set of rights and remedies which are independent of each other. The termination of one status has no effect on the other. This is even more important when the other income is from companies related to the Defendant, not real third parties.

In fact, as the Judge determined, at the time of his dismissal neither Tom nor the corporate Plaintiff owned any shares in the Defendant as Tom had sold his shares to an arms length third party against the wishes of his brother who wanted to buy out his brother but they could not agree on the price.  This is apparently what caused the Defendant to terminate the arrangement with the Plaintiff.

In non legal terms, Tom and his brother were partners and when Tom would not agree to the price his brother was offering, he sold his shares to a stranger, which upset the brother. The brother  returned the favour by firing Tom without paying him a dime.

I am not aware if this case is being appealed.

If you wish a copy of this case, email me at barry@barryfisher.ca









Another Case Upholds CERB as a Reduction of Wrongful Dismissal Damages

In Oostlander v Cervus Equipment Corporation, 2022 ABQB 200, Justice Hollins said the following :


[41] Employment Insurance benefits are generally not deducted because of the employee’s obligation to repay them to the federal government; Crisall v Western Pontiac Buick (1999) Ltd, 2003 ABQB 255 at para.71. While no evidence was led before me any communications between this Plaintiff and the government concerning repayment, I am satisfied that there are sufficient cases having considered this issue to feel comfortable saying that Mr. Oostlander’s EI benefits should not be treated as mitigative income to be deducted from his damages.

[42] Mr. Oostlander also received some money by way of the Canadian Emergency Response Benefit, or CERB payments. These payments have been treated differently by different Canadian courts in the context of wrongful dismissal damages. While most courts have focussed on whether or not the CERB benefit will ultimately be repayable by the plaintiff to the government, in Irotakis v Peninsula Employment Services Ltd, 2021 ONSC 998 at para.21, the CERB benefit was not deducted, not because of any obligation to repay but because it represented only a subsistence-level, ad hoc benefit. I am not convinced that is the case here, nor do I find that reasoning particularly compelling.

[43] Further, I have no evidence whatsoever before me that Mr. Oostlander will be required to repay these CERB benefits. To the extent that other courts were prepared to speculate about repayment obligations based on the general financial circumstances of their respective plaintiffs, I can only say that Mr. Oostlander’s earnings during his notice period might distinguish his case from those involving well-compensated senior executives; Hogan v 1187938 BC Ltd, 2021 BCSC 1021 as cited in Snider v Reotech Construction Ltd, 2021 BCPC 238 at para.61.

[44] Frankly, I prefer not to speculate at all and so, in the absence of any such proven obligation, I am assuming that Mr. Oostlander will retain his CERB benefits and so they are properly deducted from his final damage award.

My Comments;
Cases from Western Canada seem to support the proposition that CERB payments are deductible while the older cases. from Eastern Canada tend to go the other way. I am not aware that this matter has found its way yet to an appeal court.

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