In Kraus v S3 Manufacturing ( 2020 SKQB 175 ) Justice Megaw determined that the plaintiff was entitled to 18 months notice but that to pay him both 18 months wages plus the stat holiday pay for those holidays in the notice period would count as double recovery and thus was not allowed. The judge determined that there was no evidence to show that had the plaintiff actually worked out his notice period that he would not have been permitted to take those stat holidays and be paid when he was not at work.
The same issue would apply to a claim that I often see in mediation, which is a claim for vacation pay over the notice period. Unless there is a pattern shown that the plaintiff routinely did not take his or her vacation and was paid money instead, this claim fails. However where the employee’s vacation pay is paid on every pay check ( which is common in some industries) the plaintiff would be entitled to this payment over the notice period.
Having said that it is always prudent for plaintiff counsel to review with the client whether there is outstanding vacation pay from either the current year or as carryover from previous years. Also remember that vacation pay is payable on all cash compensation, including commissions and bonuses. This is often not done correctly and thus there can be very large claims for past vacation pay owing on bonuses, particularly for employees whose bonus compensation is a large part of their total compensation.
Also, it may be a small amount, but under the Ontario ESA , employees are entitled to vacation pay on their termination pay but not on severance pay. This is often forgotten in termination letters.