” In Accordance with the ESA ” Does Not Oust Reasonable Notice

In Bellini v. Ausenco Engineering Alberta Incorporated (2016 NSSC 237) the Court was faced with the following termination provision:

15.1 Conditions

Although the Company anticipates a long term employment relationship, our business is subject to economic factors which sometimes necessitates a reduction in workforce. We have therefore adopted a policy of specifying termination conditions in our employment letters. If it becomes necessary for us to terminate your employment for any reason other than cause, your entitlement to advance working notice or pay in lieu of such notice, will be in accordance with the provincial employment standards legislation. 

In an incredibly erudite judgement, containing numerous references to Court decisions all over Canada, Justice Leblanc found that this language did not oust the common law impled term of reasonable notice.

[43] On a consideration of all the relevant law, I conclude that I should follow the authorities requiring a higher level of clarity in termination provisions that are said to oust common law notice. The Court of Appeal decision in Kaiser alludes to this reasoning, although admittedly the point was not directly dealt with. I find the reasoning in cases such as McLennan, Cybulski and Kosowan persuasive. I take note of Clarke, but the provision in that case specifically referred to “reasonable notice” and stated clearly that “no further amounts will be due and payable … whether under statute or common law.” I believe that is significantly clearer and more specific than the language I am dealing with here. The provision in this case is at best ambiguous as to whether the parties intended the statutory minimum to apply, or simply whether the applicable notice would be consistent with the legislation. It would not be difficult for an employer to draft a termination clause that leaves no doubt as to the parties’ intention to oust common law notice. This language does not do that. I am not convinced that the court should apply a strained interpretation to attribute such meaning to contract language that does not specifically say so. As such, I am not convinced that the termination provision ousted Mr. Bellini’s right to common law notice.

He then went on to award 6 months notice  for a 61 year old, Senior Professional Engineer with 3 years and 3 months service.

Any lawyer needing an excellent review of the law in this area should bookmark this case.

Turning Down Full Time Job to Further Education = Failure to Mitigate

In Schinnerl v Kwantien Polytechnic University ( 2016 BCSC 2026) Justice Steeves found that the plaintiff had failed to mitigate her damages when she turned down a full time job but accepted a part time job so that she could continue her PhD studies.

The Court commented as follows:

[36] In my view, the plaintiff was certainly entitled to negotiate a change from full‑time to part-time work so she could get closer to completion of her PhD studies. However, that is a separate matter from her duty to mitigate the damages she is entitled to from her dismissal by the defendant. By turning down full-time work at Douglas College but then seeking damages for full-time work she is essentially claiming that her former employer should pay for part of her continuing education. It is true that the education commenced with the defendant but its obligation to contribute ended under its educational leave policy as well as with the plaintiff’s dismissal.

[37] I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests but I do not agree this means her former employer is required to pay for the interests of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal. The plaintiff relies on previous judgments but they can be distinguished on the facts because there was no alternate position available to the dismissed employee (for example, Haff v. Valeant Pharmaceuticals International Inc., 2013 BCSC 1720 (CanLII), at para. 70). Similarly, the efforts of a disabled former employee to refocus his vocational aspirations in the absence of alternate work is a different case than the subject one (Birch v. London Drugs Ltd., 2003 BCSC 1253 (CanLII), at para. 27).

[38] In my view the subject case is analogous to a previous judgment where it was held that a dismissed employee cannot elect to take further training with the cost of the training as a charge against the former employer (Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828 (CanLII), at para. 107).

[39] In summary, the defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant.

Asserting Cause Where No Reasonable Basis Costs Employer $50,000 in Punitive Damages:

In Morison v Ergo-Industrial Seating Systems Inc. ( 2016 ONSC 6725) Justice Rogers held that reasonable notice for a 58 year old Regional Sales Manager with 8 years service making $211,000 annually was 12 months .

But the Judge did not stop there. The judge was very concerned about the defendants’ conduct and considered that in analyzing both the issue of aggravated damages and punitive damages.

This is what the Court said  about aggravated damages :

40. It is clear that an employer can allege just cause as a ground for dismissal and that abandoning cause at any stage, in the course of the action, does not necessarily mean that such conduct should attract aggravated damages. Provided the employer had a reasonable basis on which it believed it could dismiss an employee for cause, a finding of bad faith will not automatically follow: see Mulvihill v. Ottawa (City), 2008 ONCA 201, 90 O.R. (3d) 285, at paras. 49, 55 .
41 However, in this case, the evidence is rather clear that the plaintiff was simply not a good fit with his new immediate superior (Exhibit 1, tab 19 being a convincing example). It is equally clear that this superior knew someone she respected who expressed interest in Mr. Morison’s position. The defendant was interested in trying someone new who had what the defendant perceived was a more positive disposition towards the healthcare sector. The defendant was clearly entitled to these beliefs and to hire someone else. However, none of this constituted reasonable belief in just cause.
42. Considering all the evidence on this issue, I conclude that alleging cause was an integral part of the defendant’s negotiation strategy. The defendant was counselled in September 2012 that it would not be able to establish cause. The defendant alluded to a possibility of alleging cause in its dismissal letter. The defendant then alleged cause in its defence and adopted a rather aggressive position while providing no convincing evidence at trial that could support its alleged reasonable belief in cause or that it was reasonably justified in initially adopting a position of just cause.
43. This is exactly the kind of conduct mentioned in Honda v. Keays as an example of conduct in dismissal that could result in aggravated damages. I find that the defendant did not act fairly or in good faith in the manner of dismissal of Mr. Morison as the defendant was not candid, reasonably honest, nor forthright with Mr. Morison. The defendant, by its allegations made with no reasonable basis in support thereof, attacked the reputation of Mr. Morison by making misrepresentations regarding the reasons for his dismissal for financial gain (i.e. seeking a better outcome in its negotiations with Mr. Morison). This is a classic example of bad faith.

However the Judge noted that to award monetary damages there had to be evidence of actual damages sustained. The Court commented as follows:

45. On this point, the evidence in this case is quite different from that in Middleton v. Highlands East (Municipality), 2013 ONSC 763, 8 M.P.L.R. (5th) 114, where the Court found, at para. 142, sufficient evidence of mental distress. Here, the evidence of mental distress caused by the manner of dismissal cannot be dissociated from the usual anguish and stress resulting from having one’s employment terminated. I point out that I am not concerned with the lack of a medical report (on which time was spent during closing arguments), but rather with the lack of convincing evidence of mental distress on which I could properly assess damages resulting from the manner of dismissal. By way of example, some of the plaintiff’s evidence on this related to how he was in a fog when he found out by a friend that he would be dismissed and how this was a horrible day, with other parts of his evidence relating to his financial distress. Despite mentioning that the allegations of cause got his back up and caused him some upset, his evidence in that regard was extremely superficial and lacked particulars. The evidence is not at all convincing and is simply not sufficient to warrant any damages in this context, since normal distress and hurt feelings resulting from a dismissal areensable. For these reasons, the facts relevant to damages in this case are quite different from those in cases such as Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, and Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, and do not give rise to compensable damages.
46. As indicated in Canada (A.G.) v. Robitaille, 2011 FC 1218, at para. 38, the employee’s testimony may be sufficient to establish such damages and the absence of medical evidence does not deny the damages suffered by the employee as long as there is evidence of such damages and evidence of a causal connection between the moral injury and the wrongful conduct.

However, there is no need to prove actual damages in order to award punitive damages. In the following strong language the Judge awarded punitive damages in the amount of $50,000:

52. In this case, the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract: the breach of its duty of good faith, as found above.
53. I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.
54. I had the advantage of listening to the evidence and observing the witnesses and I find such conduct to be reprehensible. It exceeds what might be considered as ill-advised. The allegations of cause, made with no reasonable basis, and the significantly delayed payment of statutory amounts were intentional and financially impacted the plaintiff. These actions of the defendant were designed to financially benefit the defendant and the defendant had knowledge of the plaintiff’s precarious financial position. Such a conduct is “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour”. A similar finding was made in Kelly v. Norsemont Mining Inc., 2013 BCSC 147, at para. 115.
55. Since I have awarded no amount for aggravated damages, the pitfalls of double-compensation or double-punishment mentioned in Honda v. Keays is avoided if I award punitive damages.
56 .Considering the facts of this case, I find that an award of punitive damages is rationally required to punish the defendant and to meet the objectives of retribution, deterrence, and denunciation. Employers cannot be allowed to behave in such a fashion without a clear message being sent by this Court that this is not acceptable.

The facts that justified an award of aggravated damages were virtually the same as those relied upon for punitive damages, which reinforces my belief that they are one and the same.

In order to get over the hurdle that the Plaintiff was not committed to a mental health facility as a result of the defendants’ actions,  the Court simply recast the defendants’ behaviour in the language of punitive damages and came to the same result.

To somewhat  paraphrase Michelle Obama, ” When the Employer goes low, the Court will go high.”

Judge Who Sets Arbitrary Notice Period is Overturned;

In Reeve v 2265480 Ontario  Ltd cob Hidden Valley Resort, ( 2016 ONSC 5273) Justice Glass of the Divisional Court overturned a Small Claims Court judge who actually said in his judgement that  in determining the notice period he was ” arbitrarily ” choosing one month.

Justice Glass determined that Plaintiff, who was employed as a Manager for only 3 months, was entitled to receive 4 months notice, in part because he had a managerial job, he had moved his family from Toronto to Huntsville, was not on probation, was not given any guidance as to his alleged performance problems and it took 9 months for him  to find a new job.

It is interesting to think what would have happened if the Small Claims Court judge  had not used the word ” arbitrary” and instead  had said ” Considering the relevant Bardal factors, I find that reasonable notice is one month”.

Lawyer Wins $7,575 on Appeal, then Claims Costs of $56,220

In Caskanette v Bong-Keun Choi Dentistry ( 2016 ONSC 6448) Justice Mitchell was hearing an appeal from the Small Claims Court where the Plaintiff was found to have dismissed with just cause. In the alternative, the Small Claims Court judge said that if he had found no just cause, he would have awarded a notice period of 4 months , which worked out to be worth $7,575.

The Superior Court found that just cause was not proven and awarded the Plaintiff $7,575.

In their costs submission, Plaintiffs’ counsel ( who was 31 years at the bar) claims he spent 87.6 hours on the appeal, and another 20.5 hours by law clerks and students.

The Superior Court judge commented on the excessive amount of time spent by Plaintiff’s counsel and ultimately awarded costs of $10,000, inclusive of HST and disbursements. This is only $1,000 more than the Plaintiffs’  lawyer claim for HST and disbursements.

If in fact Plaintiffs’ counsel actually charged his client $56, 320 for the appeal and he recovered $17,375, then this “win” only cost her a mere $38,945. The plaintiff, by the  way, made $22,725 per annum in the job that she lost.