Why Claiming a Failure to Mitigate for a 35 Year Employee is Almost Futile:

In Wall v M.H. Roe Sheet Metal ( no Canli citation yet) Justice Kumaranayake of the Ontario Superior Court found the proper notice period for a 56 year old Office Administrator with 35 years service was 24 months .

The only real issue was the Defendants allegation that the Plaintiff failed to conduct a reasonable job search thus the notice period should be reduced.

The Judge pointed out that the Defendant must prove that the Plaintiff conducted a less than reasonable search AND that if she had done so she would have obtained comparable employment .

In reviewing the evidence the Judge made the following rulings with respect to finding that she had not failed in her mitigation efforts.

1. The Defendant sent the Plaintiff 5,000 job leads however many of these were jobs for which the Plaintiff was unqualified .

2. The Plaintiff did apply for 59 jobs but was not granted a single interview.

3. The Plaintiff had worked for this single employer since age 21. She only had high school and her computer skills were poor..

4.. The Plaintiff did not look for a job in the first 4 months because she was in shock, did not have a computer and this was the time of the COVID lockdown.

5. Although she turned down the Defendants’ offer of outplacement counselling, because this service would have obligated her to accept temporary work, she was allowed to refuse the service.

6. The Defendant offered the Plaintiff $1,400 towards career counselling but provided no company names that would provide such a service for that price.

My Comments :

The Plaintiff made $3,515 per month. Even if the Defendant had got the notice period down to say 20 months, that would have saved them $14,060 . I suspect that even without considering any Rule 49 Offers , the Plaintiff will easily get a cost award in excess of $25,000.

I would love to know what the last offers were made before trial. Maybe when the cost decision comes out, we will know.

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Repudiation Upheld Thus Valid Termination Clause of No Effect:

In Klyn v Pentax Canada Inc., 2024 BCSC 372. Justice Edelman had a situation where the Defendant failed to honour their own termination clause. The result was that the Defendant could not rely on their otherwise enforceable termination clause and thus the Plaintiff was entitled to common law reasonable notice. This is what the Judge said :

[6]       The parties agree on the applicable law. Repudiation is a breach of contract by one party giving rise to the right of the other party to terminate the contract and pursue the available remedies for the breach. A breach is a repudiation of the contract if it is a breach of a contractual condition or of some other sufficiently important term of the contract so that there is a substantial failure of performance (see Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at paras. 144-145).

[7]       Mr. Klyn alleges a number of breaches of the contract upon his termination. Although Pentax made some payments to him between April and July, the payments only included salary and not commissions as required by the contract. Pentax has not provided a satisfactory explanation for the failure to pay commissions during that period, simply making a rather vague statement that there was a disagreement about the amount owed. I fail to understand why Pentax wouldn’t have at least paid the amount it considered to be required under the contract, in compliance with its understanding of its own obligations. The failure to comply with its own understanding of its obligations appears to me to be a clear breach of the contract.

[8]       In any event, the payments ceased completely in July 2022, presumably because Mr. Klyn did not comply with the demand to report mitigation efforts to Pentax. In submissions, counsel for Pentax conceded that although a duty to mitigate was part of the employment contract, the reporting requirement imposed by Pentax was not. Pentax does not take issue with Mr. Klyn’s efforts to mitigate. He found alternate employment, in what is a rather specialized field, starting in February 2023. I find the failure to make the payments required under the termination clause to be a clear and unequivocal breach of a central term of the contract. I find the employment contract was repudiated by Pentax.

[9]       The damages owed to Mr. Klyn will therefore be calculated based on the common law.

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Refusal to Set Aside a Noting in Default Can be Costly ;

In YELLOW PAGES DIGITAL & MEDIA SOLUTIONS v. MASSOUMI ( unreported ) Justice Chalmers had the following fact situation:

1. Claim ( asking for One Million Dollars ) issued and served on Defendant on Day 1.

2. Lawyer for Defendant emails Plaintiff’s counsel on Day 9 and says he is in the process of being retained and wants to talk on the phone .

3. Counsel talk on phone Day 20.

4. Defendant files Defence. on Day 60 and discovers that Plaintiff noted him in default 2 days after their phone call without warning him that he would note him in default.

The Judge not only set aside the default but awarded the Defendant $1,000 in costs, along with these comments:

“I find the conduct of the Plaintiff and ( their lawyer ) to be unacceptable. There is no reason for ( Plaintiff’s lawyer) to have noted the Defendant in default only two days after the deadline for delivering a defence had passed when he knew ( Defendant’s lawyer ) was involved in the action. The fact that ( Plaintiff’s lawyer) proceeded with the noting in default without giving( Defendant’s lawyer) the courtesy of a call is inexplicable. This is not a situation of extended delay.( Plaintiff’s counsel ) had spoken with ( Defence counsel) only two days before. “

When Plaintiff’s counsel tried to justify his actions on the basis that he did not have instructions from his client to do so, this is what the Judge said :

“This is not a reasonable or acceptable excuse. As noted by Myers J. in Strathmillan: 

[19] [….] The decision to grant or withhold an accommodation to a colleague opposite is a decision for counsel. Section 47 of the Advocates’ Society’s Principles of Civility and Professionalism for Advocates makes this clear: 

[47] Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel and litigants in all matters not directly affecting the merits of the cause or prejudicing the client’s rights. Advocates should not accede to a client’s demands that the advocate act in a discourteous or uncooperative manner.” 

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Forfeiture Clause for Breach of Confidentiality and Non Disparagement Provision in an HRTO Settlement Upheld:

In L.C.C v M.M. ( 2023 HRTO 1138) Adjudicator Lavinia Inbar was dealing with an allegation that the former employee had  breached a settlement agreement by publishing on LinkedIn the following statement :

“To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the applicant corporation] and [the individual applicant] for sex discrimination.”

The Minutes of Settlement contained the following provisions :

Confidentiality: The Applicant may disclose the terms of these Minutes of Settlement to [their] immediate family, legal and financial advisors, on the condition that they also agree to maintain strict confidentiality of these Minutes of Settlement. Upon inquiry by any person about the resolution of the Application or conclusion of the Applicant’s employment with [the applicant corporation], the Applicant shall simply state that all matters have been resolved. The Applicant will make no mention of, or allude in any way whatsoever to, the receipt of money or the amount of money received from [the applicant corporation] in this Settlement.

Mutual Non-Disparagement: The parties agree that the purpose of this Settlement is to resolve any issues the Applicant has with the Respondents on a confidential basis and without any disparagement of the parties. Accordingly, the parties agree to refrain from making any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party’s reputation in the eyes of customers, regulators, the general public, or employees, unless required by law. This non-disparagement includes but is not limited to any electronic communications through social media (such as Facebook, Twitter, Instagram, Youtube, Snapchat, etc.)

Breach: The Applicant agrees that if [they breach] any of the obligations under this Settlement, and in particular the confidentiality obligation set out in paragraph 7 and the non-disparagement obligation in paragraph 8, above, [they] will be required to repay to the [corporate] Respondent the Settlement Payment paid to [them] under paragraph 2 of these Minutes of Settlement as liquidated damages, and will be responsible for any additional damages incurred by the [corporate] Respondent.

Understanding: The Applicant hereby declares that she has had an opportunity to obtain independent legal advice regarding the matters addressed in these Minutes of Settlement or has freely chosen not to do so, and that she fully understands her obligations under these Minutes of Settlement. She voluntarily accepts the terms and conditions set out in these Minutes of Settlement and agrees to finally settle all claims or potential claims, as described above, that she has or may have in future against the Respondents.

The HRT found that the confidentiality provision had been breached because they were only allowed to tell others about the resolution if someone inquired about it. Instead they published it to the whole world .

Secondly it was found that by referencing both the names of both the Corporate and individual Respondents and by referring to the issue as sex discrimination, this would , in the eye of the average reader of the post, likely damage the reputation of the Respondents.

The Adjudicator went on to find that the forfeiture clause was not a penalty clause because given the importance to the contracting parties that both sides respect the settlement and the difficulty of determining damages, that the forfeiture clause was a in fact a reasonable pre-estimate of damages and thus enforceable.

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Adding Words to the ESA Wilful Misconduct Clause Makes Whole Clause Void:

In De Castro v Arista Homes Ltd ( 2024 ONSC 1035 ) Justice Koehnen had to determine the enforceability  of the following termination clause

:If you are terminated for Cause or you have been guilty of wilful misconduct, disobedience, breach of Employment Agreement or wilful neglect of duty that is not trivial and has not been condoned by ARISTA, then ARISTA will be under no further obligation to provide you with pay in lieu of reasonable notice or severance pay whether under statute or common law. For the purposes of this Agreement “Cause” shall include your involvement in any act or omission which would in law permit ARISTA to, without notice or payment in lieu of notice, terminate your employment.  (Emphasis added)

 

The Judge found that this termination clause was not enforceable for the following reasons :

  1. Because it lists both cause or guilty of wilful misconduct etc, this must mean that it included both the ESA definition and the common law concept. This makes it illegal under Waksdale.
  2. Because it also lists ” breach of the Employment Agreement” as a ground for termination without notice, this could include many issues outside the scope of the ESA provision. For instance, if the Employment Agreement set the start time as  8 am and the employee wilfully came in at 8:10, that would never pass the ESA test

On another issue, the employer also tried the old canard that the Plaintiff failed to mitigate their damages . This is what the Judge said:

[28]      Courts have noted that if employers want to argue that a former employee has failed to mitigate her damages, the employer will be well advised to present evidence of help that it offered to the employee during his or her job search.

[12]  Here there is no evidence that the defendant offered the plaintiff any help in a job search.    It provided no job counselling.  It provided no leads for any jobs.  It did not provide the plaintiff with a reference letter

 

My Comments :

To misquote an old Motown song ” Don’t Mess With the ESA ”

If you want to be ESA compliant  just copy the words of the Act, don’t get creative.

If you are going to critisize  someone for a poor job search then either help them or shut up.

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“I Can Terminate You at Any Time ” Makes Termination Clause Void:

In  Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, Justice Pierce reviewed the following without cause termination clause :

“The Township may at its sole discretion and without cause, terminate this Agreement and the Employee’s employment thereunder at any time upon giving to the Employee written notice as follows: 


(i) the Township will continue to pay the Employee’s base salary for a period of two (2) weeks per full year of service to a maximum payment of four (4) months or the period required by the Employment Standards Act, 2000 whichever is greater. This payment in lieu of notice will be made from the date of termination, payable in bi-weekly installments on the normal payroll day or on a lump sum basis at the discretion of the Township, subject at all times to the provisions of the Employment Standards Act, 2000. “

The judge found that this clause was illegal as it contravened the ESA in the following ways :

1. Base Salary is different from Regular Wages as required by the ESA which can include commissions, bonuses and the like.


2. Section 61(1) of the ESA requires that pay in lieu of notice be paid as a lump sum and not on an installment basis.

3. By giving the Employer the sole discretion to terminate at any time , this breaches both section 53 ( reinstatement after a protected leave ) as well as Section 74 ( reprisal for exercising a right under the ESA).

My Comments :

This case now adds to the long list in the way which poorly drafted termination clauses can violate the ESA and render the entire termination provision unenforceable . Normally this leads to a determination of reasonable notice, however in this case because the Plaintiff was terminated partly into a fixed term contract ( another huge mistake in drafting ) she received compensation for the balance of the contract , which was 101 weeks or $157,071.

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Barry B. Fisher LL.B.

Ontario Rules of Civil Procedure No Longer Presume that Mediations are in Person :

In Davies v Marks Supply ( no Canli listing yet ) Associate Justice Brown, in a case conference to determine whether a mediation would take place in person or on ZOOM, had this to say about the new provincial Guidelines To Determine Mode of Proceeding that came into force on February 1, 2024.

[6] Contrary to the defendants’ submission, the provincial Guidelines To Determine Mode of Proceeding in Civil Matters no longer provide that discoveries and mediation are presumptively in person. The Guidelines were revised effective February 1, 2024 to remove any presumption for out-of-court proceedings.

A.J. Brown then determined that because the Plaintiff resided in New Brunswick both the discoveries and the mediation would take place virtually.

My Comments:

The previous Guidelines made mediations presumptively to be in person and only a Court could order otherwise. This led to the situation where one party could effectively force the other party into an in person mediation because the delay and cost of going to Court to try to overcome the presumption was neither cost effective nor time effective.

Now that we have no such presumption, what happens when the parties cannot agree? It looks like the parties would have to convene a Case Conference before an Associate Justice to determine the matter.

In my opinion this is a waste of money, time and scarce judicial resources.

I have two suggestions :

1. Make virtual mediation the presumption. Over 95% of the mediations that I and other employment law mediators conduct are virtual. This is the overwhelming client preference.

OR

2. Empower the meditator to make the decision. Mediators already largely determine the manner in which a mediation is conducted so why not give them this power. Moreover, by using their mediation skills, I suspect in most cases they can work out a mediated solution to this issue.

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Ethical Veganism is Not a Creed under the Ontario Human Rights Code:

In Knauff v. Ontario (Natural Resources and Forestry) 2023 HRTO 1729, Adjudicator Karen Dawson found that ethical veganism was not a protected ground under the Ontario Human Rights Code as it was not a Creed.

She adopted the OHRC definition of Creed as having the following definition

1.     Is sincerely, freely and deeply held

2.    Is integrally linked to a person’s identity, self-definition and fulfilment

3.    Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence

4.   Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices

5.     Has some nexus or connection to an organization or community that professes a shared system of belief.

Having listened to expert witnesses, she found that although ethical veganism fulfilled criteria 1 and 2 it did not pass the third criteria . This what she said :

[18]      With respect to the third part, I find the evidence presented at the preliminary hearing demonstrated that ethical veganism addresses humans’ relationships with other animals and the natural environment, but failed to demonstrate that ethical veganism addresses ultimate questions of human existence beyond this, or the existence or non-existence of a higher or different order of existence and/or a Creator.

[19]      Moreover, while Dr. Joy testified that ethical veganism calls into question the meaning of life, our place in the world and the cosmos and how a compassionate universe can allow suffering, these are very general philosophical observations and do not demonstrate how ethical veganism addresses the existence or non-existence of another order of existence and/or a Creator.

{20]      In his legal submissions, the applicant characterized ethical veganism as a non-religious belief system. While I agree with the applicant that the Policy says creed may include religious and non-religious belief systems, a non-religious belief system must still address all five parts of the test.

[21]      The applicant’s counsel also submitted that an ethical vegan’s spirit, soul, and sense of morality cannot countenance participation in the killing and consumption of animals and that by eschewing such participation, ethical vegans achieve a deep sense of spiritual fulfillment. They submitted that this spiritual fulfillment satisfies the third part of the test. However, I am unable to identify any evidence presented by the applicant or the two expert witnesses that ethical vegans derive spiritual fulfillment from their practices and beliefs.

[22] I find that on the evidence presented, ethical veganism does not address the existence or non-existence of a Creator and/or a higher or different order of existence, as required by the third part of the test. Accordingly, I find that ethical veganism does not constitute a creed within the meaning of the Code. The applicant therefore has failed to establish that he possesses this enumerated ground and the allegations of discrimination on this basis are accordingly outside the jurisdiction of the Tribunal.

My Comments:

This case emphasizes the limitation of the Creed provision in the OHRC. Not every firmly held belief fits within this protected category. Anti vaxers have tried unsuccessfully to rely on this section. People often feel passionately about certain political opinions and seek to characterize those opinions as a Creed and thus protected in the workplace. I submit that this case shows that that position would likely not be upheld.

As an aside, it would appear that atheism is a protected creed, as the third factor speaks of the belief of the “non-existence of a Creator”.

What about agnosticism ? Can it be a sincere belief when you aren’t sure one way or the other ?

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In Proving Sexual Harassment You Can’t Just Rely on an Investigation Report:

In Kozar v The Canadian National Railway  Company ( 2024 MBKB ) Justice Rempel heard a summary judgement motion regarding a 61 year old Senior Material Supervisor with 34 years service who was terminated for sexual harassment .

CNR relied completely on an investigation report done by a third party, who did not testify at the motion. CNR did not call any witness who actually made the termination decision. Moreover the Investigator made negative  findings about the Plaintiff’s credibility. CNR could not even show that the decision maker had even read the investigation report.

The judge found that the investigation report was hearsay evidence and the failure to call the decision maker meant that CNR had not proven just cause nor did they prove that alternative discipline measures short of dismissal  were even considered.

The plaintiff was awarded 24 months notice .

My Comments :

This case illustrates the misconception about investigations of this nature.

Investigators are hired by employers to interview witnesses, make findings of fact and sometimes to recommend action. This provides management with a firm factual basis upon  which to make its  decision .

However, the report is NOT evidence at a trial or an adjudication as to the truth of the findings.

It is NOT a substitute for calling actual witnesses to the relevant events .

It IS complete hearsay and frankly should not be admitted at all, except to show that management did its homework and did not make a rash decision .

But the job of a judge or an arbitrator is not to determine whether management made a reasonable decision, rather it is to determine what actually happened. Therefore the opinion of the investigator is completely and utterly irrelevant .

I had a case a few years back in which I was the arbitrator involving the discharge of a Correctional Officer for the use of excessive force.

The Employer had a done a thorough and impressive investigation, having interviewed  numerous witnesses, including a prisoner who was an eye witness. The Superintendent, in reliance on the report, dismissed the employee. Based on the information in the report, I would have done the same.

However, by the time of the arbitration , the Employer was unable to call many of those witnesses, including the eye witness. I therefore found, on the evidence before me, that the Employer had not proven just cause.

In that case, the Union did not allege that the Employer breached any due process  obligation nor did it allege any aggravated or punitive damages.

Investigations have an important place in the workplace, but they are not a substitute for proving every element of just cause at a trial or an arbitration with first party evidence.

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Nasty Fighting Between Relatives Who Work Together Not a Reprisal Under the OHRC

In Leason v ADAMANDA In o/a Dairy Queen and Grill Huntsville,  2023 HRTO 1652 ( Adjudicator Daud ) the applicant raised a reprisal complaint against her employer.

The manager of the store was the applicant’s first cousin.

The problem seemed to have arisen when the manager’s sister ( not an employee at the time but also the applicants’ cousin) uninvited the applicant to her birthday party, which greatly upset  the applicant.

Thereafter the three cousins ( including the applicant and her manager) engaged in some heated emails and verbal exchanges about this apparently grave injustice done to the applicant.

Query: If you are disinvited to a birthday, do you still have to give a gift?

In denying the reprisal complaint, this is what the adjudicator said :

[66] Michelle Turner also testified that any foul language used between her, and the applicant was only because they were cousins and friendly with each other. The testimony at the hearing confirmed that these three persons (applicant and her two cousins) were not communicating as fellow employees but rather as cousins. The frankness and feud in these communications can only be labelled as bickering among family members and cannot be considered as a poisoned work environment due to the fact that the text messages were not related to work, they and were exchanged outside of work, and the primary reason for this exchange of messages was because the applicant’s cousin was unable to attend the party and the applicant was uninvited from her cousin’s birthday party.

Comment:

This case illustrates another good reason why not to work with family in a business.

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