This morning the SCC heard this case which deals with exclusionary clauses in employment contracts. In essence the plaintiff would have received over one million $ had he been permitted to work through his 15 month notice period but for the language of the contract. The employer had been found to have acted in bad faith.
The SCC seemed to be thinking about the various issues.
1. If the contract language itself did not purport to allow the employer to act in bad faith , would the exclusionary clause itself even apply?
2. Can a contract even purport to allow one party to act in bad faith ?
3. If the essence of a wrongful dismissal action is the failure to allow the employee the right to work through the notice period , then should not the calculation of the damages be the same as if the employee had been permitted to so work?
4. It is not in dispute that an employer may limit the length of the notice period, but can they also exclude certain items of compensation from being considered in that time frame?
5. Is extending Bhasian to the performance of an employment contract, not just to the manner of the dismissal, too big a step at this time ?
Kudos to Howard Levitt, Andrew Monkhouse , Stacey Ball and Tim Lawson for their very interesting arguments .
More comments to follow in future blogs
In Curran v MAG Aerospace ( 2019 CarswellNat 4803) Adjudicator Sinding was called upon the determine the proper remedy for an unjust dismissal where the employee did not seek reinstatement.
He made a few interesting findings:
1) Adjudicators are not limited to only awarding common law reasonable notice.
2) There is a presumption that the employee is entitled to be compensated up until the date either the hearing or the decision.
3) The calculation of the lost wages takes into account the deduction of mitigation earnings, even if the underlying contract was a fixed term.
4) To prove damages beyond this date requires real proof of lost future earnings and will always have a end date.
In Seykors v Rural Municipality of Lake Lenore ( 2019 SKQB 225 ) Richmond J. reduced the notice period by 2 months where the Plaintiff’s mitigation efforts were minimal and he had not applied for even one job.
Why such a minimal reduction you may ask ?
1) The Plaintiff was age 65.
2) He was a snowplow operator.
3) He didn’t finish high school.
4) He lived in a rural area and was not expected to have to move.