Alleging Theft Irresponsibly Leads to $15,000 Aggravated Damages :

In Austin v. Kitsumkalum First Nation, 2020 BCSC 2298, Justice Groves had a situation of a 15 year School Principal in a First Nation school who gave notice of resignation 11 months in advance saying that she was leaving in November. The Employer turned around and terminated her in June, 5 months before her resignation date, and did not allege just cause at that time . The Plaintiff sued only for the 5 months. The Employer then alleged all sorts of criminal behaviour and alleged that it was after acquired cause.

The Judge found that the Defendant was fully aware of all of the necessary facts prior to termination and that those facts did not constitute just cause. In awarding aggravated damages , this is what the Judge said :

[33] In my view this defendant in raising in their statement of defence unfounded allegations which through a reasonable interpretation suggest potential criminal behaviour, suggest theft, suggest inappropriate reimbursement for expenditures, support a finding that this employer engaged in conduct that was unfair and in bad
faith. They are not saying she did not do her job. They are saying she was dishonest. They were saying she was fraudulent. They are saying she conducted herself in a semi criminal manner. All those things have not been proven, and in my view as they are unproven, they are both unfair and they were made in bad faith.

[35] And let us put this in context. She is a teacher in a small aboriginal community in Northern British Columbia near Terrace. She resides in that community. Upon her dismissal, everyone, she says, knew that she was dismissed. It was apparent. It is not like she is living in a big city and loses her job and no one knows.

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Ontario Court of Appeal Upholds 26 Month Notice Period :

In Currie v Nylene Canada (  2022 ONCA 209 ) the Court upheld  the trial judge’s decision  that the case contained exceptional circumstances which  justified a notice period in excess of 24 months.

The Court of Appeal referred to the following factors :

(i) Ms. Currie left high school to start work (at age 18) as a twisting operator at Nylene and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;

(ii) After working at Nylene for 40 years, her employment was terminated by Nylene near the end of her career, when she was 58 years old;

(iii) Ms. Currie had very specialized skills making it very difficult for her to find alternative suitable employment. Moreover, at the time of her termination, her computer skills were limited. She made diligent efforts to attempt to gain basic computer skills and mitigate her damages but the trial judge was not convinced she would succeed in securing alternative employment;

(iv) The work landscape had evolved significantly since Ms. Currie had entered the workforce in 1979 and, as her experience was limited to working for Nylene and its predecessors in one manufacturing environment, her skills were not easily transferable; and

(v) Given Ms. Currie’s age, limited education and skills set, the termination “was equivalent to a forced retirement.”

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BCSC Says that CERB is Deductible from Wrongful Dismissal Damages ;

In Reotech Construction Ltd. v. Snider, BCSC 317, Justice Fleming , sitting on appeal from a decision of the Provincial Court, found that the trial judge erred when the Court failed to deduct the $9,000 CERB payment received by the Plaintiff from the damage award.

The Court referred to the following factors in making this decision:

1. CERB was not private insurance nor did the Plaintiff contribute ( unlike EI where the employee pays part of the premium).

2.There was no obligation under the CERB legislation whereby the Plaintiff would be required to repay CERB ( again unlike EI)

3. As such, the application of the collateral benefit rule did not apply.

4. CERB was designed to be a indemnification against wage loss and to not deduct it from the award would put the Plaintiff a better position than had the contract not been breached by failing to pay reasonable notice.

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24 Month Notice Case Takes into Account COVID and Disability as Factors in Determining Notice Period :

In Sandham v Diamond Estates Wines & Spirits ( no citation yet ) Justice MacNeil award 24 months notice to a 64 year old National Brands Manager with 22 years service.

In addition to the usual Bardal Factors the Judge also took Into consideration the following factors :

1) He had spent in whole working life selling only the products of this one company.

2) He was terminated in September 2020, right in the midst of the COVID pandemic.

3) Due to vision problems, the Plaintiff lost his drivers license a few years ago, which would now ” hinder or impair his ability to secure such a position with a different employer.”

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BC Case Deals with Enforceability of Handbook Termination Clause, When a Termination Took Place and Frustration under COVID

In Verigen v. Ensemble Travel Ltd., ( 2021 BCSC 1934) Justice Milman had a situation of a 55 year old Business Development Director ( really more of a sales person ) with 13 months service who was given a temporary layoff notice at the beginning of COVID. The plaintiff consented to the first time limited layoff and consented to a second one but did not consent to at. third  extension beyond August, 2020.

  1. The Judge found that because she had consented to the first two layoff periods, the date of her constructive  dismissal was not her original layoff date in March but only when she refused to consent to a third extension in August.
  2. At the time of hiring there was a clause in her contract agreeing that she was bound by the Employee Handbook which they said was enclosed, but in fact it was not enclosed.  The Defendant did not actually give her  a copy of the Employee Handbook until a few months after she started and, lo and behold, the Handbook contained an ESA termination clause. The Court found that because there was no termination clause in the original hire letter, that extra consideration would have had to be paid to the Plaintiff at the time she was asked to agree to the termination clause, and as no such extra consideration was paid, the termination clause was not enforceable .
  3. The Defendant then tried to argue that COVID had devastated the travel industry so that the doctrine of frustration applies and therefore the Plaintiff was not entitled to any common law notice . This is how the Court dealt with that issue:[59] The issue in Wilkie was whether the imposition of additional purchase tax on a prospective purchaser of real property frustrated the contract of purchase and sale. In answering that question in the negative, Warren J. canvassed various authorities holding that a purchaser’s inability to perform due to a lack of adequate funds will not generally justify a finding of frustration. She summarised the relevant principles as follows:

    [38] That a lack of money to perform does not, generally, give rise to frustration is not surprising because, as noted, frustration arises from a supervening event that results in performance becoming a thing radically different from that which was undertaken. While a lack of money affects a party’s ability to perform an obligation, it does not normally alter the nature or purpose of the obligation itself.

    [60] So too here, the collapse in the travel market goes to ETL’s “ability to perform”, rather than “the nature of the obligation itself.” This case is unlike the CRT decisions relied upon by ETL, where the very subject matter of the contract had been lost due to discrete, pandemic-related events. Although much of the consumer demand driving the business on which ETL and its members depend has abated, at least for the time being, not all of it has, and then not permanently. Moreover, although ETL chose to terminate a large part of its work force in the summer of 2020, at least some positions have been preserved and a recently-opened vacancy has been filled. ETL chose to relinquish Ms. Verigen’s branch of the business with a view to cutting operating costs so that it could better weather an ongoing storm. The fact that the pandemic had admittedly not brought about a frustration of the contract as of July 2020 makes it implausible for ETL to maintain that the contract had become frustrated only a few weeks later.

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Here is My Idea for a Med/Arb Clause in an Employment Contract:

I was asked the other day by an employment lawyer if I had a precedent for a Mediation/Arbitration clause that could be used in an Ontario employment contract .

I didn’t have a precedent so I composed my own. Here it is :

Med/Arb Dispute Resolution Procedure:

The parties agree that any and all disputes arising from the interpretation or application of this agreement (including but not limited to the termination of this agreement) shall be resolved by the following process:

1. The parties shall select a sole Arbitrator within 30 days of the request to arbitrate. If the parties cannot agree on an Arbitrator, then one shall be appointed pursuant to section 10 of the Arbitration Act, 1991 .

2. The parties shall first attempt to resolve the issues in dispute by way of a mediation conducted by the Arbitrator.

3. If the matters are not resolved, then the Arbitrator will decide all outstanding issues by way of a final and binding arbitration pursuant to the Arbitration Act, 1991. There shall be no appeal from the award of the Arbitrator. 

4. This provision does not prevent either party from pursuing any statutory right that they may have before the appropriate statutory tribunal, although that party may choose instead to pursue this Med/Arb procedure.

5. The parties shall share the fees of the Arbitrator equally unless the Arbitrator orders otherwise.

6. The entire process shall take place in the Province of Ontario at a place chosen by the Arbitrator after consultation with the parties.

I look forward your comments and compliments. Feel free to use this clause in your practice.

Med/Arb can be a much better way of resolving non union disputes than resorting to the Courts . Try it!

Investigation Reports are Not Admissible as Evidence in Arbitration Proceedings for the Truth of the Matter Asserted:

In an adjudication before the The Public Service Grievance Board ( an Ontario tribunal for the resolution of employment disputes within the Ontario Civil Service for non unionized employees) , Adjudicator Andrew Tremayne had a  case where the Ministry conducted a lengthy investigation with respect to allegations of misconduct of a manager at a correctional institution.

In response to an attack by the Complainant ( the dismissed employee) on the investigation, the Board made the following comments:

[7] Counsel for ( the Complainant) raised many concerns about the fairness of the investigation by CSOI and the fairness of the allegation meeting. Those processes are quite different from an adversarial proceeding before the Board. Typically, unless the parties agree otherwise, an investigation report has limited use in a hearing because it provides evidence only of the basis (in whole or in part) for an employer’s decision to discipline an employee. An investigation report is not proof of the “facts” underlying the events. Parties before the Board are obliged to prove their cases based on facts either agreed-to or established by admissible evidence through the testimony of witnesses who are examined and cross-examined under oath.

[8] At the same time, the Board has consistently held that a hearing provides a complainant with a full opportunity to present all relevant evidence to challenge the employer’s decision and that this cures any defect in the process that led, in this case, to the termination of
employment. In other words, this decision is based on the evidence presented by the parties and not on the findings of the CSOI report.

My Comment:

In my practice both as a mediator and an arbitrator, I find that many parties ( and sometimes their lawyers) fail to understand this very important distinction. Having spent thousands of dollars on a workplace investigation, they are sometimes shocked to find that it is of little or no use at the trial or the arbitration because they have to still prove all the underlying facts through witnesses and documents.

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Union Who Refused to Advance Policy Grievance Regarding Mandatory Vaccine Policy Did Not Violate Duty of Fair Representation :

In Watson v CUPE and Air Canada ( 2022 CIRB 1002) an unanimous decision of the Canada Industrial Relations Board dealt with a complaint by a member of the bargaining unit who claimed that the unions’ refusal to advance policy grievance against Air Canada’s mandatory vaccine policy was arbitrary .

Here is the Tribunal’s rationale

3. Balancing the Interests of Members

[62] The Board has repeatedly stated that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another (see McRaeJackson; and Crispo, 2010 CIRB 527). Unions routinely make difficult decisions that require balancing the interests of various groups amongst its membership. This is true in collective bargaining and in the decisions to present grievances.

[63] The complainant asserts that the union ignored the concerns and interests of approximately 10 percent of the members in the bargaining unit, who will bear the consequences of the policy. She maintains that the union acted in bad faith as it adopted a dismissive attitude and did not inquire sufficiently or communicate with those members who raised questions or concerns with respect to the mandatory vaccination policy.

[64] In the context of this policy, there is no doubt that those members who choose not to be vaccinated or not to disclose their vaccination status will be impacted differently than those who comply with the policy. However, the duty that is imposed on the union does not mean that it has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected; it means that the union must consider the interests of all members of the bargaining unit and act fairly. The Supreme Court of Canada made the following comments in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298:

The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here, a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union’s choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable.

(pages 1328–1329)

[65] In this case, the union supported vaccination generally as an effective means of ensuring the health and safety of its members. Even if this position by the union is in opposition to certain members’ views, this, in and of itself, is not sufficient to find the union in breach of its DFR. In the current pandemic, there is overwhelming scientific evidence of the effectiveness of vaccines in the effort to eradicate COVID-19. Health authorities across Canada have stated that vaccination is one of the most effective ways to prevent severe illness, hospitalization and death from COVID‑19.

[66] As Arbitrator Stout stated in Electrical Safety Authority:

[6] I note that this case is not about the merits of being vaccinated or the effectiveness of COVID‑19 vaccines. The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.

[67] The complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.

[68] The complainant suggests that the union failed to consult with those members that opposed the policy and that it did not provide a rationale for not advancing their concerns through the grievance procedure. However, the union is not obliged to consult each and every member when assessing whether to challenge an employer policy that impacts the membership in different ways. In a case involving a mandatory Hepatitis A vaccination policy, the British Columbia Labour Relations Board dismissed an employee’s allegation that the union had acted arbitrarily or in bad faith because it had not consulted with the membership prior to engaging in discussions with the employer. The Board agrees with the following reasoning in Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, BCLRB No. B138/2004; 2004 CanLII 65459 (Gordon):

Gordon also suggests that the Union discussions with the Employer about the mandatory inoculation program were improper because employees were not consulted. As the exclusive bargaining agent, part of the Union’s job in representing employees is to engage in discussions with the Employer regarding workplace issues: see, for instance, Section 53 of the Code. While consultation with employees over changes in working conditions such as occurred at the Capri is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached. In this case, the Union satisfied itself that the Employer’s actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law. In the circumstances, I do not find that the Union’s agreement to the program or its failure to consult employees beforehand supports a breach of Section 12.

(page 9)

[69] Although CUPE ACC did not engage in individual discussions with the complainant, it did communicate regularly with the membership to provide status updates in what was and continues to be a rapidly changing environment. Through these communications, the union made it clear that it was aware of the different views on the issue of vaccination. It was also aware of the complainant’s specific concerns communicated to it through Ms. Perrin’s letter of August 30, 2021. As this matter concerned a policy grievance, it concerned the membership as a whole. The union had to make a decision in the interest of all the employees in the bargaining unit. As in Gordon, the union satisfied itself that the policy was within the parameters allowed by the legislative framework and provided for exceptions based on human rights grounds. Further, the union made clear that it would pursue individual grievances to seek accommodations where those were possible. An individual grievance is in fact proceeding with respect to Ms. Watson’s particular circumstances. The Board notes that it would be premature at this stage to pronounce on the union’s approach in that process.

[70] The Board is satisfied that the union did not act in an arbitrary or discriminatory manner or in bad faith in its approach and communication with the membership as it relates to its decision not to pursue a policy grievance regarding the employer’s vaccination policy.

4. Management Rights Clause in the Collective Agreement

[71] The complainant also argues that the collective agreement does not contemplate a vaccination policy and that the employer has no management right to implement such an invasive medical procedure as a condition of employment. In her view, the union should have grieved the policy or demanded that the employer negotiate the terms of the policy. Failure to do so, in her view, is a breach of the union’s duty to represent her fairly.

[72] The union’s interpretation of the collective agreement differs from that of the complainant. The union is of the view that the absence of specific language in the collective agreement does not mean that the employer’s vaccination policy is invalid. Although the union recognizes that it can challenge a new policy through a grievance, it is of the view that the management rights clause in the collective agreement does not prevent the employer from introducing new policies, as long as these are not inconsistent with terms of the collective agreement or other applicable legislation, such as the CHRA.

[73] The Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement (see Crispo) and, as such, in this case, that it retains the discretion to determine whether it should challenge the vaccination policy as a proper exercise of management rights. The fact that the complainant disagrees with the union’s interpretation of the collective agreement is not sufficient to establish a breach of the union’s duty.

IV. Conclusion

[74] After careful consideration of the complainant’s allegations and the written submissions of the parties, the Board is not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith. The DFR complaint is dismissed.

[75] This is a unanimous decision of the Board.

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Employment Contract with 12 Month Termination Clause Trumps Two Year Secondment Agreement:

In Nader v. University Health Network, 2022 ONSC 447 Justice Black had a situation where the employee was hired under an indefinite term with a 12 month termination clause. During the course of his employment he was seconded to another institution under a two year secondment agreement between the employer and another health care entity. The secondment agreement was terminated by the non employer entity and since the employer had no vacancies they terminated him and eventually paid out his 12 month termination pay.

The balance remaining in the two year secondment agreement exceeded 12 months so the Plaintiff claimed that the Secondment Agreement prevailed.

In finding that the employment contract prevailed the Judge said :

[57] These cases appear to confirm that, against the backdrop of a continuing employment agreement, pursuant to which the original employer evinces an intention to remain the employer and retain responsibility for salary and benefits, a secondment agreement is not itself an employment agreement, but something other, and in its own category.

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Arbitrator Upholds Right of Hydro One Suspend Non Complaint COVID Holdouts:

Arbitrator John Stout in a recent award held that it was reasonable for Hydro One to suspend without pay workers who refused to comply with the COVID policy of either being vaccinated or subject to regular testing.

Here is what he said :

[11] I am also of the view that prohibiting employees from attending work if they do not provide proof of vaccination or a negative COVID-19 RAT is fair and reasonable in the circumstances of this pandemic. Hydro One is complying with their obligations under the Occupational Health & Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. The Policy is a reasonable compromise that respects employee rights and balances the various important interests.

[12] In terms of accommodating the Grievors with remote work, I agree with Hydro One that such an accommodation is not necessary or required in these circumstances. Most of the Grievors could not perform their work remotely in any event. It is also not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status (i.e., RAT). If employees refuse the reasonable alternative, then that is their free choice but Hydro One has no further obligation to accommodate such individuals.

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