Legal Issues in the Post Corona Era:

Right now employment lawyers are talking , debating and especially ZOOMING about various employment issues that have arisen since this pandemic started.

I want to look down the road a few months when hopefully the pandemic will be  on the decline. I think that the following legal issues and trends  will arise and will need to be resolved :

  1. The longer these temporary layoffs continue the more employees will seriously look at the temporary  layoff = termination argument.
  2. After 13 weeks, many employers will not have recalled employees and either don’t have benefits they could continue or fail to do so, thereby triggering the deemed termination provisions of the ESA.
  3. Even if they are recalled and return to work, could the employee  still sue for the lost wages on the basis that there was no express or implied term of employment regarding layoff ?
  4. Will the frustration defence apply to only those business that were forced to close due to Government edict?
  5. Would class actions apply for both termination cases and unpaid wages during layoff cases?
  6. Does a refusal to accept a recall bar the employee from still suing for the lost wages up until the time of the recall?
  7. If an employee accepted a recall but still sued for lost wages, could they be terminated for just cause ?
  8. Is there any realistic duty to mitigate during the pandemic or do Plaintiffs get a mitigation holiday ?
  9. We all know that EI is not a deduction from wrongful dismissal damages ( because the employee ultimately has to repay their EI ), but what about the new Canadian Emergency Relief Benefit ? Each worker could receive up to about $7,500. I have not looked at the CERB legislation, but assuming it has no offset provision like EI, could the employer in a wrongful dismissal case claim a setoff for the CERB amount ?
  10. Will notice periods go up because it will more difficult to find a job or will they go down because employers are seen to be truly suffering and need a break?

I invite from you both your comments as well as other topics that you think will arise .

Stay Healthy

I Did My First ZOOM Mediation. It Was Great!

 On Friday I did a mediation entirely on ZOOM video technology that took 8 hours, involved 4 parties and 4 lawyers.
Yes it settled.
It was in some ways better than a face to face case. I could switch rooms instantly. I could see everybody in the room at the same time. One person cannot talk over another. No one had to catch a plane or pick up the kids so we had no time limits. Everybody made their own lunch . By using breakout rooms , it was just like a face to face mediation. When I needed to talk to the lawyers without clients, we simply moved to another room. Drafting the settlement documents was easy. One lawyer sent the other a draft by email. Clients could view the document at the same time.
I am convinced that there is no good reason to adjourn mediations until this pandemic is over. It can be business as usual .
Being a ZOOM participant is so simple . All you do is download ZOOM to your browser or your phone by using the ZOOM app. Hosting a ZOOM meeting is more complicated, but that is the sole responsibility of the mediator, so you don’t have to worry about that part.
I am more than willing to talk to any employment or labour lawyer about using ZOOM for mediations or arbitrations. Call me on my cell 1 416 999 3785 or email me at barryfisher!

Decision Tree Analysis of a Wrongful Dismissal Action:


Decision Tree Analysis is simply a process of analyzing an issue on the basis of a step by step basis while applying the principles of probability.

In its simplest terms think of a coin flip. Every time you flip a coin, there is a 50% probability that it will come up heads.

But if you are trying to predict the probability of two consecutive coin flips coming up heads, then you multiply the two probabilities. Thus 50% X 50% = 25%. In other words, there is a 25% chance of a coin flip coming up heads two times in a row or a 75% chance that that will not happen.

Many lawsuits can be analyzed using this same methodology.

Imagine the following fact situation:

The plaintiff was fired, and the employer is alleging just cause.

The Plaintiff’s lawyer believes that she has a good chance of beating the just cause issue and puts her chances at 75%.

Of course, that means that there is a 25% chance that just cause is upheld and the case is therefore worth zilch.

Assuming that just cause is upheld, an additional issue is that there is an employment contract which if enforceable, would limit the plaintiff’s recovery to $10,000. Given the uncertainty of the law on this issue, the Plaintiff’s lawyer thinks that her chances of defeating the contract are only 50%.

If she can both beat the just cause argument and get around the contract, the next issue is whether or not the $25,000 bonus will be included in the award. If the bonus is included, the case is worth $100,000. If the bonus is excluded, the case is only worth $75,000. Again, given the uncertainty in the law, the lawyer estimates a 50 % risk factor to this issue.

So, what are the chances that the Plaintiff will recover $100,000 at trial?

Step One : $100,000 X 75% = $75,000 ( Just cause risk )

Step Two: $75,000 X 50% = $37,500 (Termination clause risk)

Step Three: $37,500 X 50% = $18,750 (Bonus inclusion risk)

Another way is to simply multiply the probabilities as follows:

75% X 50% X 50% X $100,000 = $18,750

Thus, the chances of winning $100,000 are only  18.75%.

However, there are also the following probabilities to consider:

  1. There is a 25% chance of getting nothing if just cause is upheld.
  2. There is a 37.5 % chance of getting only $10,000 if just cause is not upheld but the termination provision is found to be valid.
  3. The probability that the outcome will be $75,000 is the same as it is for $100,000

Thus :

The chances of getting nothing                25%

The chances of getting $10,0000               37.5%

The chances of getting $75,000                 18.75%

The chances of getting $100,000               18.75%


Total                                                               100%


Now assume that the mediation hits an impasse and the defendant’s last offer is $66,000. The plaintiff’s last offer is $82,500.

Assume that the plaintiff’s lawyer is on a contingency fee and that the plaintiff does not have adverse cost insurance. Also assume that the plaintiff owns a house with plenty of equity.

Note that neither of the offers actually reflect a possible court outcome. This is good because it shows that each side is already evaluating risk, however they just disagree on how to do it.

As a mediator I would have this discussion with the plaintiff.

“Well, we have certainly come a long way today, considering that before we started the mediation, the employer had offered you only $5,000, which is what we call in the trade “nuisance money”.  Whether you like their number or not, $66,000 is not nuisance money.

Your ex-employer has said that the most they will pay you today is $66,000.

We know that if you are successful on all counts you will get $100,000 and if you don’t succeed on all counts, you could get either $75,000 or $10,000 or zilch.

At $66,000 you are $34,000 short of your objective. But not really. First of all, because of your contingency fee arrangement, that $33,000 difference is really only $24,750 because of the 25% fee arrangement. Moreover, that $24,750 is subject to tax withholding of 30%, which means the real difference to you of not getting an extra $33,000 is only $17,325.

Let’s take a closer look at the 25% nightmare scenario, in which you get zilch. Now, I know that with that outcome you will not owe your own lawyer anything. But I also know that your lawyer has explained to you that if you lose, the Court will in all likelihood order you to pay part of the costs of your former employer. She has told you that this would likely be around $50,000. As you have a house with real equity, your ex-employer could ultimately collect the costs award.

So here we have it. You a decent chance of getting $17,325 more money in your pocket if you win in Court. But if you lose in Court and get zilch, you have lost two amounts, the $50,000 you have to pay to the defendant and the $66,000 you could have had if you accepted their offer.

In other words, if you go to trial and lose completely (of which there is a 25% chance) you will be out $116,000.

Next, what are the consequences of losing $116,000 to you? In many cases, it would involve losing your home or a large portion of your retirement fund.

Let’s assume that odds of you getting $17,325 more in your pocket are the same as you losing $116,000.

In Vegas, only a high-risk poker player would take that bet.

So, what are my instructions?”


Using the same data, this is the conversation I would have the owner of the defendant.

“Well, we have certainly come a long way today, considering that before we started the mediation, the employee had offered to settle $250,000, which is what we call in the trade “crazy money”.  Whether you like their number or not, $82,500 is not crazy money.

I fully appreciate that this settlement is real money to you as you own this company. I appreciate that you got to where you are today because in part you are a good businessman.

Let’s analyze this issue the same way you would analyze any other business problem, because that is exactly what this litigation is.

As this case stands, your lawyer has said that largely because of the issue of just cause, this trial will probably take 5 days. Since we are at the beginning of a long litigation process, your lawyer has told you that to take this case to the end of a 5-day trial will cost you around $115,000.

Now I know that if you were to win on the issue of just cause (which we agree you have a 75% chance of not achieving) then the Court would probably award you about 60% of your legal fees or $69,600. That means, that assuming you could collect that from the plaintiff, the cost of winning would be around $46,400.

Let’s look at the cost of losing. Lets even assume that it is not a complete loss and you win on the issue of excluding the bonus. That means you would pay as follows:


Judgement                                                                  $75,000


Costs to your lawyer                                                $115,000


Partial costs to plaintiff’s lawyer                           $69,600


Total:                                                              $259,600


Even if you only lost on the issue of just cause and won everything else and the Court awarded the Plaintiff no costs, this would still cost you:


Judgement                                                                    $10,000


Costs to your lawyer                                                $115,000


Total                                                                            $125,000



So, a complete win will cost you                           $46,400


Losing partly will cost you                                     $125,000 to $259,600


Settling today could cost you at most                     $82,500


The only way you can do better than $82,500 is to win outright, which your lawyer has told you has a 75% chance of not happening.

What are my instructions?”



































Court Refuses to Dispense with Mandatory Mediation :

In Villa v Association of Professional Engineers of Ontario ( 2020 CarswellOnt 1042) Master Jolley had this to say about the Plaintiff’s request to dispense with mandatory mediation .

D. Motion to Dispense with Mandatory Mediation

45 The plaintiff wishes to avoid the cost of mediation as, in his view, the defendant is committed to its position and mediation will not be successful. It is these very situations where mediation often proves to be the most helpful. With the history of this matter and the slow progress being made by the parties left to their own devices, I find that mediation may assist the parties in framing the issues and discussing settlement. This request is denied.

The plaintiff was self-represented.

How Not to Conduct A Wrongful Dismissal Trial :

In Gibb v Pallieter Regional School Division # 26 ( 2020 ABQB 113) Justice Kubik dismissed the plaintiff’s constructive dismissal and harassment claim.

1. The trial was 7 years after the event.

2. The trial took 11 days.

3. The Plaintiff amended her claim at trial to increase her  claim  for punitive and aggravated damages to $700,000.

4. The Plaintiff found alternative employment almost immediately after she left this employer.

5. If the Plaintiff had been found to be constructively dismissed, her employment contract would have required the employer to pay her $35,750

How to Prove Failure to Mitigate :

In Samuel v Benson Kearley ( 2020 CarswellOnt 1125) Justice Charney awarded the plaintiff a 6 month notice period . Then he reduced the notice period to 4 months as a result of two pieces of evidence :

One, she did not even start looking a job until 4 months after her termination. The judge didn’t buy her ” shock and distress” argument.

Second, the defendant led evidence that a specialzed insurance website ( which the Plaintiff had used to get her the job in the first place ) had 38 comparable  jobs posted in the four months that the plaintiff did nothing to look for a job.

In light of this work, the Judge said that the ” the defendants have met their onus of proving that the plaintiff failed to mitigate her damages”.

Character of Employment Ignored in Assessing Notice :

In Slipp v Woodstock First Nation Economic Development Corp ( 2020 NBQB 020) Justice Petrie had to assess the notice period for a 56 year old Bingo Caller making $39,000 with 17 years service.

In deciding age quantum of reasonable notice, the judge said the following

36.     Character of employment simpliciter is generally not a relevant factor unless there is evidence establishing otherwise.
• Bramble v. Medis Health & Pharmaceutical Services Inc. 1999 CarswellNB 270 ( NBCA)
• AMEC Americas Limited v. MacWilliams, 2012 NBCA 46
41.     I also wish to note that there was no evidence provided by either party as to the job market, nor the economic conditions facing the plaintiff at the time of and following termination. I also have not considered the character of her employment as a factor.
My Comments :
As neither party led evidence on how the character of employment may have affected how long the plaintiff should reasonable take to get a job, the Judge simply ignored it as a factor.
In my experience, I have almost never read a trial decision in which either party has led any evidence on this issue. Instead both counsel and judges do what they have always done, which is simply make the factually unsupported assumption that people who make only a little money will have a easier time getting a job than those making lots of money.
This case can be used by either party. Plaintiff counsel  can rely on it to say that their client of modest means should not be penalized in the notice period assessment. Defence counsel can use it to offset the high awards that often go to executives with short service .
By the way, this is already the law in Ontario. Read  the case of Di Tomaso v. Crown Metal Packaging Canada LP ( 2011 ONCA 469) in which the Court said :
27      Crown Metal would emphasize the importance of the character of the appellant’s employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: see Bramble v. Medis Health & Pharmaceutical Services Inc. (1999), 175 D.L.R. (4th) 385 (N.B. C.A.) (“Bramble”) and Paulin c. Vibert (2008), 291 D.L.R. (4th) 302 (N.B. C.A.).
28      This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world. In Bramble, Drapeau J.A. put it this way, at para. 64:
The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy.
Here’s the rub. Although this principle is the law of Ontario, this case and its guiding principles are either unknown or ignored in the overwhelming bulk of cases that go to Court.
Why is this ?


Employee Gets Advantages of Both Fixed Term and Reasonable Notice :

In Rice v Shell Global Solutions ( 2019 ABQB) Eamon J. had a situation where an employee who had already worked for the defendant for about 8 years under a number of different fixed term and indefinite term agreements, was offered a new position which had the following language :

Your Assignment Length will be : 4 years.

She was let go without cause 10 months later and was provided with working notice and termination pay for another 3 months. She found new employment 7 months after her notice of termination.

The Judge had to decide what meaning to put to the reference to 4 years. This is how the Judge sets out the alternative interpretations

57      Consequently, a reasonable person interpreting this contract, having carefully thought about the matter, could see more than one meaning. In my opinion, there were three alternative meanings. One could reasonably ask:
By “Assignment Length” do you mean that
(1) she is a fixed term employee whose employment is over at the end of four years,
(2) she is an indefinite term employee who cannot apply for other positions without her manager’s permission for four years, or
(3) you are promising her work or an assignment for at least four years?
The Judge concludes that the correct interpertation is the the third one .
63      The objective interpretation which gives reasonable meaning to the explicit phrase “Assignment Length”, does not impose the harsh consequences of a traditional fixed term contract, is the most plausible meaning in the limited surrounding circumstances which both parties knew or ought to have known, and is most favourable to Ms Rice, is that Ms Rice receive the promised assignment of four years (absent termination for cause) but not that the contract would automatically end at the conclusion of that time. Thus the contract is terminable effective any date thereafter in accordance with the common law. The use of the word “assignment” rather than “employment” in the contract supports this interpretation. The relatively short duration of the assignment distinguishes this case from the long, and therefore unlikely, claim to employment duration considered by the Manitoba Queen’s Bench and Court of Appeal in Wallace.
In assessing damages the Court calculated what she she would earned with Shell during the balance of the 4 years but deducted what she actually did earn by way of mitigation income. The Judge examined the Ontario Court of Appeal case which said that these earnings are not deductible ( Howard v Benson Group Ltd 2016 ONCA 256) but ruled that where the language does not exclude mitigation earnings, it must be deducted .
Interestingly the Judge also went on to find that if the contract was not a fixed term, the common law notice would be 15 months. However the actual damage award only reflected the losses to the end of the 4 year fixed term but not  also the 15 months after the end of the notice period. Apparently Plaintiff’s counsel did not seek that remedy as the Plaintiff only requested payment until the end of the fixed term.

Mitigation Earnings of 30% of Former Salary are Deductible as Mitigation Earnings :

In Dengedza v CIBC ( YM2707-10905) Adjudicator Montieth in a CLC Unjust Dismissal complaint had to determine whether or not a former senior  investigator with the Bank was entitled to not have his mitigation earnings affect his 14 month notice award.

In his job at the Bank, the Complainant earned $62,379 for presumably a 40 hour work week. After his dismissal he worked 60 hours a week as an UBER driver and made $600 a week or $31,200/ year. This works out to $10/hour as opposed to the $30/hour that he was making at the Bank.

The Adjudicator then applied the test in Brake v PJ-M2R Restaurant ( 2017 ONCA 402) which stands for the proposition that post termination income that is “minimal, trivial or inconsequential ”  should not be considered as mitigation earnings.

Even though the UBER income was 1/3 of his Bank income, the Adjudicator found that these amounts were sufficently large enough to be characterized as amounts received in mitigation of loss.

My Comments :

I think the Adjudicator approached this analysis incorrectly.

He seemed to look at the weekly earnings without regard to the hourly rate. Sure, the Plaintiff earned about 50% of his former income on a weekly basis but that is only because he worked 50% longer every week.

Moreover, as the Complainant was making $4.00 less than the ESA minimum wage driving for UBER, it seems somewhat inappropriate to find that these UBER earnings did not qualify as ” minimal and trivial “.

In other words the comparison should be based on the hourly rate, not on the weekly income. Effectively the Complainant was working 1/3 of his former rate . No Court would require an employee to mitigate his losses by taking a job at 1/3 of his previous rate, especially when that rate itself was below the minimum wage .

In effect the Complainant was punished for taking the crappy UBER job, and the Bank got a windfall because its former employee needed to eat and put a roof over his head.

Although there is no reference to this in the decision, it seems likely that as the Bank alleged just cause, the Complainant  probably did not get EI. Had he received EI, that amount would not have reduced his damage award, although in certain circumstances he may have had to repay some or all of it to the Government.

Service Advisor Taking Secret Pics of Female Clients = Just Cause

In Durant v Aviation A. Auto ( 2019 NBQB 214 ) Justice LeBlanc had a situation where a 34 years service advisor at a car dealership took secret videos of  female clients and shared them with co-workers. The Plaintiff’s explanation that he was doing it to protect the dealership was not accepted by the Judge.

The Judge considered the following factors in determining   whether there was just cause.

The nature and extent of Mr. Durant’s conduct on August 30, 2018, is  the following:

  1. He surreptitiously took a first video of the female client in attendance at the Audi Moncton premises for improper purposes;
  2. The first video was taken with his work issued tablet computer;
  3. He surreptitiously took a second video and a photograph of the female client with his personal cellphone;
  4. He showed the first video to several co-workers while making inappropriate comments, including mocking the female client;
  5. He showed the second video to Audi Moncton employee Justin Guimond while making inappropriate comments about the female client;
  6.   Over the course of the labour day weekend, he texted the photo of the female client on his cellphone to his co-worker, Mr. Donovan.

In deciding that just cause had been proven the Court made the following comments :

For the reasons already given, a consideration of the full range of misconduct leads to the conclusion that it was very serious.  That misconduct, the invasion of the female client’s privacy and the derogatory comments made during the subsequent viewings of the video, were incompatible with Mr. Durant’s employment obligations toward Audi Moncton.  No plausible explanation was offered for the misconduct and none is evident on an examination of the evidentiary record.

  Durant’s misconduct on August 30, 2018 is very serious as a stand alone incident but it is made more egregious considering that he had been warned of the inappropriate nature of similar conduct in the past, i.e. the warning letter issued in relation to the November 2014 incident and the discussion with Mr. Hambrook in January 2018.  In addition, after August 30, 2018, it came to light that the very behaviour shown by Mr. Durant on August 30, 2018, had occurred several times in the past. 

My Comments :

I take 3 things from this case :

  1. The conduct of the plaintiff was obviously throughly obnoxious and disgusting.
  2. His failed attempt to justify his behavoir, as opposed to apologizing for it, hurt his otherwise slim chance of winning.
  3. The fact that he had been previously warned about similar behaviour sealed his fate.

One can see that if this was the first and only time in 34 years  that he acted in this fashion and if he accepted  responsibility from the beginning, the result may have been very different.