BCSC Holds That Putting Non Compliant Employee on Leave for Violating Vaccine Mandate is NOT a Constructive Dismissal :

In Parmar v. Tribe Management Inc., ( 2022 BCSC 1675) Justice MacNaughton ruled that a mandatory vaccine policy introduced in October of 2021 was reasonable and that on an objective basis a reasonable employee would not have considered the policy as a substantial imposition of an essential term of the agreement.

This case is definitely worth reading in its entirety, but here are some interesting highlights:

1. The Defendant was not intending to terminate the employment for she could return to work at any time as long as she was vaccinated.

2. The Court took judicial notice both of the effect of the pandemic and the safety and utility of the vaccine.

3. The plaintiff was the only one of the 200 employees who refused. This alone was evidence of the objective basis that the policy was not unreasonable .

4. While it is extraordinary for an employer policy to affect one’s bodily integrity, given the the extraordinary challenges of COVID, the policy was reasonable.

5. The plaintiff was not being forced to vaccinate, rather she was simply forced to make a difficult decision, vaccinate and work vs don’t vaccinate and don’t work.

This would appear to be the first civil case on this issue. Of note is that the Judge referred to numerous labour arbitration cases on these issues. Of course the Judge was not obligated to follow these arbitration cases, but clearly the Judge was influenced by them as they were the first to deal with this novel issue .

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

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Employer Wacked with $55,000 of Moral and Punitive Damages :

In Pohl v Hudson’s Bay Company ( 2022 ONSC 5230 ) Justice Centa awarded at 53 year old Sales Manager with 28 years service a notice period of 24 months. No surprise there.

However the Judge also awarded $45,000 for moral damages and $10,000 for punitive damages because :

1. The Plaintiff was walked out the door after his termination.

2. HBC tried , unsuccessfully, to trick the Plaintiff into accepting a lower rated position which would have effectively eliminated his common law entitlement to reasonable notice.

3. They did not pay his severance pay within 7 days as required by the ESA but rather paid it out on salary continuation for two months before finally paying out the balance as a lump sum. This was not only used to justify moral damages but also the punitive damage award.

4. Instead of issuing the ROE immediately they delayed it until the end of the salary continuation period and then made several mistakes in the form.

My Comments on Each of The Judges’ Reasons.

1. In my experience, this is a pretty common practice.

2. This seems to be a practice which really pissed off the judge.

3. It seems that the motivation behind HBC may have been to maximize their entitlement to the CEWS subsidy, which was payable on salary continuation but not on a lump sum severance payment. On the other hand, because of Order 8 under the EI Act, the receipt of a lump sum of severance pay would not affect the Plaintiffs’ immediate entitlement to EI whereas if he received salary continuation he would not have been entitled to EI for the same period. Ironically each side was probably trying to maximize their entitlement to COVID related measures.

4. My understanding of the ROE is that it is only be be issued upon the cessation
of payroll payments so since the Plaintiff was being paid by way of salary continuation, the ROE would only be required once the payroll payments ceased.

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

I welcome your comments on my comments

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NBCA Deals With Allegation of Improper Layoff and Constructive Dismissal :

In Donovan v Richelieu Hardware (  2022 NBCA 45 ) the Plaintiff was first put on a temporary layoff and then 5 months later was terminated. The Plaintiff did not claim that the the first layoff was a constructive dismissal, but rather a simple breach of contract, and therefore claimed that he was entitled to both 5 months lost wages for the breach of contract and reasonable notice once his employment was terminated.

The trial judge rejected the Plaintiff’s argument and found that the Plaintiff had been constructively dismissed at the time of the original layoff, even though the Plaintiff did not plead this.

The CA agreed and said that when faced with the breach of contract the Plaintiff had only two choices, either accept the breach or claim that he had been constructively dismissed .

My Comments:

I have always understood that faced with a breach of contract, the innocent party had three choices:

1. Accept the breach and in essence agree that the agreement has been amended.

2. If it was a fundamental breach, treat the breach as ending the contract and sue for damages.

3. Simply suing for the loss but not terminating the contract.

From a policy point of view, the purpose of notice is to allow the Plaintiff to look for another job. But the essence of a temporary layoff is to say to the employee ” I do not have work for you now, but I will have work soon, so please do not start another job because I promise to recall you soon “.

If the temporarily laid off employee believes her employer, then she will not use that time to look for another job. Why then should this time count as notice of termination?

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

I always welcome your comments.

My date availability for mediations can be found at www.barryfisher.ca

Class Action on Unpaid Vacation Pay and Public Holiday Pay for Variable Income Can Proceed:

In Curtis v. Medcan Health Management Inc., 2022 ONSC 5176, the Ontario Divisional Court overruled the decision of Judge Perell who denied certification.

The action is based on the premise that both vacation pay and statutory holiday pay are to be paid on all income, not just on base pay. In this class of employees all of them had some component of either commission income or bonuses which are wages under the ESA.

Medcan sought to remedy this mistake by paying monies owing for the two years prior but refused to pay before that date, relying upon the two year limitation period in the Limitations Act 2002.

This class action seeks compensation for the period before the two years.

The Div Court found that the class action was preferable over individual civil actions because this would provide a greater access to justice, given, among other factors, the unwillingness of current employees to sue their employer directly.

Moreover the trial judge failed to consider the behaviour modification aspects of the application, namely that by holding the employer responsible for the actual damages incurred by the class, it will serve as a message to other non compliant employers that they cannot just ignore the ESA for decades and then get out of the problem by only paying up for the last 2 years if they are caught.

The Court then certified the class.

Class counsel was Monkhouse Law and Employer counsel was Hicks Morley .

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

For my date availability for a mediation, go to www.barryfisher.ca

Terminating an Employee Without Reasonable Notice Results in Employer Paying for 26 Years of LTD Benefits:

In Pasap v Saskatchewan Indian Gaming Authority and Bear Claw Casino ( 2022 SKQB) Justice McMurtry had a situation where there was an issue as to whether the employee was fired or resigned. Having found that the Defendant had given him an ultimatum to quit or be fired, the Court found that he was fired and should have received 8 months notice.

Two months after his termination, the Plaintiff ( who was only 38 years old) suffered an serious medical event which the Judge found made him disabled for the rest of his working life. Because the Defendant had not continued his LTD coverage through the notice period, they became liable for 26 years of LTD benefits ( until he turns 65) , which came to $1,216,764 plus 8 months notice, plus $25,000 in aggravated damages plus $25,000 in punitive damages plus costs.

Comment: This case illustrates the massive risk that an employer takes when they improperly cut off important benefits prematurely like LTD or life insurance. If this was simply a LTD denial case with an insurer the Court would not order the payment future benefits as a lump sum, rather the Court would award past benefits and put the Plaintiff back on claim. This could not be done in this case because the defendant was not an insurer.

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

BC Court Finds That ESA Only Termination Clause is Enforceable :

In Shultz v. Prococious Technology Inc., dba,Cleardent, 2022 BCSC 1420, Justice Walkman found that the following termination clause was enforceable as it fully complied with the BC ESA.

6.3 Termination by Company Without Cause. The Company may
terminate the Employee’s employment for any reasons, without cause, uponnproviding the Employee with only the notice or payment in lieu of notice (or a combination thereof) in the minimum amount required by the British Columbia Employment Standards Act, as amended from time to time. Benefits will end on the last day worked.

6.4 The Employee understands that by complying with this Article 6.3, thenCompany satisfies its entire obligation under statute and common law tonprovide notice or pay in lieu of notice to the Employee in the event that theirnemployment is terminated. In no event will the Employee receive less noticenor pay in lieu of notice than the minimum termination notice or pay in lieu of notice they are entitled to under the British Columbia Employment Standards Act, as may be amended from time to time.

The Plaintiff did not provide the Court with any arguments as to why the actual language was unenforceable, rather they focused on the fresh consideration issue.

Can anyone out there think of any arguments that could have been made about the enforceability ? Remember this is a BC case and not an Ontario case. Please post your comments or send me an email at barry@barryfisher.ca

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

Quitting and Returning One Year Later is a Break in Service;

In Shultz v. Prococious Technology Inc., dba,Cleardent, 2022 BCSC 1420, Justice Walken had a situation where an employee quit her job after 12 years for another job. One year later she returned to her former employer and was then terminated 2.5 years later.

Her new hiring letter did not directly address the issue of her past service, however the Court found that because there was a probationary clause and because her vacation entitlement was that of a new hire ( and not one reflective of her past service) , her seniority for purposes of notice was only 2 .5 years. The Court then determined that the proper notice period was 2 months .

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

Employer Allowed to Plead its Termination Offer When Plaintiff Pleads Bad Faith Damages:

In Posehn v. CIBC, 2018 ONSC 1458, Master Jolley was dealing with an objection by the Plaintiff that the Defendant had pleaded in its defence the terms of a settlement offer which the Defendant made at the time of termination.

Master Jolley noted that in a simple notice case it would be both irrelevant and improper to plead such an offer. However in this case, the Plaintiff has pleaded bad faith, aggravated and punitive damages because at the time of his termination they only included his base salary and not his variable income in their termination payment.

Therefore the pleading of the Defendants’ offer was relevant to the accusation of bad faith and bad behaviour at the time of termination. Presumably this was plead to show the Judge that the Defendant were not a bunch of meanies.

The pleading was not struck.

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

ONCA Upholds 10 Months Notice Period for Short Service Director:

In  Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONCA 655 , the Court upheld a 10 month notice period for a 47 year old Director of Marketing Communications with just under 3 years service who was making $132,000 /year plus bonuses.

The Court also noted that the trial judge had properly taken into account the economic effects of the COVID pandemic in May of 2020, when the Plaintiff was terminated.

On a second issue, the Appellant argued that notwithstanding the parties agreement to use a non roster mediator ( my good friend Peter Israel), the Defendant should only be required to pay the $300 roster rate as part of the costs award and leave the winning party responsible for the rest.

The Court rejected that argument and said that this was well within the discretion of. the triall judge to have the losing party paid the entire disbursement.

Conflict Note: Winning counsel was my very own eldest son, Matthew Fisher. I never get tired of saying that.

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

Illegal Termination Clause is a Fixed Term Contract Leads to $479,000 Award:

In Tarras v. The Municipal Infrastructure Group Ltd., 2022 ONSC 4522 (CanLII) Justice Smith had the following situation:

1) The Plaintiff had a fixed term 3 year contract at $250K /year as part of the sale of his company to the Defendant.
2) He was terminated after only 11 months without cause.
3) The ESA termination clause was illegal because it relied upon the common law concept of just cause rather than the ESA standard of wilful misconduct. .
4) He was a highly sophisticated party who had legal advise throughout the transaction.
4) The Plaintiff did nothing to mitigate his damages but didn’t have to as it was a fixed term contract

As a result of certain quirks in Ontario employment law, he received the balance of his contract ( 23 months) and had no duty to mitigate his damages.

If anyone tells you that employment law is straightforward and simple, run for the hills and seek the advice of an employment law specialist.

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