In Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.
Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .
In calculating damages the Court did two things which I thought were odd .
1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.
Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).
2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.
If you would like a copy of this case, email me at barry@barryfisher.ca
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In Amer v. Shaw Communications Canada Inc., 2023 FCA 237, Justice Gleason upheld the Adjudicator’s award of substantial indemnity costs even where there was no finding of circumstances where there was reprehensible, scandalous or outrageous conduct on the part of the employer.
The Court upheld the more modern view that to not award such costs to an innocent employee is to punish them for pursuing their legal rights .
This is what they said:
[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.
[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.
My Comments ;
This is an important win for dismissed employees who utilize the unjust provisions of the CLC. As managers are statutorily excluded from the unjust dismissal provisions, the average claimant is of modest means. In fact, many of these claimants are self represented, resulting in rough justice at best.
By making sure that winning claimants can afford lawyers, the quality of the adjudications would also rise.
Unlike the civil justice system where a losing plaintiff can face a substantial adverse costs award, under the CLC the Adjudicator cannot award costs against a losing claimant .
If you would like a copy of this case, email me at barry@barryfisher.ca
If you like to book a mediation session, go to my calendar at www.barryfisher.ca
To subscribe to the Wrongful Dismissal Database, go to www.wddonline.ca