Category: Uncategorized

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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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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In  Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.

Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .

In calculating damages the Court did two things which I thought were odd .

1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.

Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).

2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.

If you would like a copy of this case, email me at barry@barryfisher.ca

For my mediation dates, go to www.barryfisher.ca

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Barry B. Fisher LL.B.

In Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII) Justice Burt found that a policy requiring the Covid Vaccine for a restaurant server to be reasonable.

The Plaintiff ( who refused to get vaccinated ) was put on a leave of absence without pay until she either got vaccinated or until the Defendant lifted the vaccine requirement.

The Plaintiff claimed that she had been constructively dismissed. The Court found that she had resigned as soon as she claimed that she had been constructively dismissed.

This is what the Court said :

[68]           In sum, imposing the Policy, including an unpaid leave of absence as a consequence of the Plaintiff choosing not to be vaccinated, did not amount to constructive dismissal nor a breach of the Contract on the part of the Defendant. The evidence as a whole has established the Defendant acted reasonably, lawfully and with justification in enacting the Policy that allowed the Plaintiff to make a choice as to whether she would be vaccinated.

[79]           The law, applied to the facts of this case, supports the conclusion that the Policy was a reasonable, justified and lawful response by the Defendant to the extraordinary circumstances of the Pandemic in 2021. Placing the Plaintiff on unpaid leave balanced the Defendant’s business interests, statutory and contractual obligations, the rights of its employees to a safe work environment, and the safety concerns of its customers, while ensuring that individuals like the Plaintiff could refuse to get vaccinated without termination of employment and instead, choose an unpaid leave of absence.  

My Comments ;

Many cases have already upheld these mandatory vaccine policies.

What is interesting about this case is that it seems to endorse an unpaid LOA, but it may not uphold a termination for just cause.

The highlighted comment about balancing the two interests seems to suggest that had the Plaintiff been terminated instead of being put on a LOA that the outcome may have been different .

However, this begs the question as to how long does an employer have to wait to decide if the person on the LOA needs to be replaced ? It may well be easy to temporarily replace a server, like this Plaintiff, but what if the employee held  a critical position within the company, like the Comptroller? It would be near impossible for an employer to hire a temporary Comptroller that would be subject to termination on a days notice if the Comptroller on  LOA changed their mind and got vaccinated. What is the temporary replacement cost more per diem than the person on layoff? What if the refusing employee declared that they will NEVER get vaccinated ?

If you would like a copy of this case, email me at barry@barryfisher.ca

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In Gee v Corus Entertainment ( 2023 CIRB 1090) Adjudicator Rogers ruled that an regular guest on air contributor who appeared twice a week was not an employee and thus not covered by the Unjust Dismissal section of the Canada Labour Code.

The CLC also covers Dependant Contractors, however this is what the Adjudicator said on this point :

[22] Turning to the question of whether the complainant meets the test for a dependent contractor, the Board finds that the undisputed facts establish that she was not economically dependent on Corus. Rather, the uncontested facts are that she worked for various other media outlets throughout her tenure with the employer and that only 25 per cent of her income was from Corus.

This is well below the near-exclusivity threshold of at least 50 per cent as contemplated in the above-noted cases.

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In Pirani v CIBC ( 2023 ONSC 5991) Justice Ramsay dealt with the issue where an employer alleges just cause but fails to prove this at trial , does that mean that the contract has been repudiated by the employer and therefore they are barred from relying of the without cause provision of the contract ?

This is what the judge said :

[176] Ms. Pirani argued at trial that the employment agreement was repudiated when she was dismissed for cause and, in the result, the CIBC cannot rely on the termination provision. Ms. Pirani does not plead repudiation in her statement of claim. Ms. Pirani bears the onus of establishing that the employment agreement was repudiated: Humphrey v. Mene, 2021 ONSC 2539, at para. 116. An employer’s failure to establish just cause does not disentitle an employer from enforcing an otherwise valid without cause termination provision: Humphrey, at para. 135.

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In  Jimmy How Tein Fat v. PRGX Canada Corp., 2023 ONSC 6374, Justice Callaghan ruled on many issues that commonly  arise in wrongful dismissal actions and therefore provides a useful guide to the leading cases and what they stand for.

Summary Judgement :

I find this case is appropriately resolved by summary judgement. There are no factual issues that would be assisted by a trial and there were no submissions by either counsel that a trial would assist in my fact finding. The parties state that they have called all the evidence they intend to call. As can be seen from the decision below, there were no credibility issues that were required to be resolved. The dispute here is largely how the law is to be applied to the facts and any inferences drawn from those facts. I am satisfied that I am able to apply the facts to the law. As a result, there is no genuine issue that requires a trial and there is no benefit to requiring the parties to endure the delays and costs of a trial. I am satisfied that I can reach a fair and just resolution of the matters in dispute based on the record before me.

 

Reasonable Notice :

[20] Based on the factors above and having reviewed the multitude of case law that has been presented to me, I find that a 24 month notice period is warranted. Mr. How was a loyal employee for 29 years. He is (as one judge referred to it) “in the twilight of his career” at the age of 63 which makes finding replacement employment harder. He was a senior executive in a niche industry who was paid a significant sum. At his age, his prospects of obtaining another employment opportunity commensurate with the seniority and remuneration with what he had at PGRX is understandably dim. As articulated to by Chief Justice McRuer, setting any notice period is inherently a fact driven exercise. Nonetheless the bulk of the case law presented to me, particularly in the appended charts filed with the plaintiff’s factum, support my conclusion of a 24 months notice period. 

Calculation of Base Salary:

[26] Mr. How received merit increases most years. In his 2021 notice, he was advised that his base salary was $413,753.60. This salary number does not require any deductions, in contrast to the method proposed by the defendant. I am satisfied that in calculating the salary over the 24 months, that $413,753.60 per annum is the correct amount. 

[27] In addition, I disagree with the defendant’s calculation of a four-year average. Historically, in most years, Mr. How’s base salary increased. There is no evidence to suggest that his salary would go down during the notice period. In such circumstances, taking a four-year average would unnecessarily reduce the salary component of his damages for the notice period. As a result, I accept that the proper calculation of damages for Mr. How’s loss of salary over the 24 months is $827,507.20. 

Bonus:

[38] In looking at the entitlement of a bonus, Matthews requires me to answer two questions: (1) would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? and (2) if so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right?

[40] The Supreme Court held that this provision was not sufficient to oust the common law right to damages. Phrases requiring an employee to be “full-time” or “active” were also not sufficient to remove an employee’s common law right to damages. The reason for this was stated by Justice Kaiser as follows: 

Yet, it bears repeating that, for the purpose of calculating wrongful dismissal damages, the employment contract is not treated as “terminated” until after the reasonable notice period expires. So, even if the clause had expressly referred to an unlawful termination, in my view, this too would not unambiguously alter the employee’s common law entitlement. 

[41] The terms of the PGRX’s plan do not, in my view, exclude Mr. How’s entitlement to a bonus during the notice period. For purposes of compensation in lieu of notice he “is employed” and his employment is not at an “end”. Rather, he is to be treated as an employee during the notice period and that includes payment of the bonus. 

Mitigation:

[45] However, the onus is on the defendant to establish that the dismissed employee both failed i) to take reasonable steps to search for a job and ii) that a job comparable to the job lost by the employee could have been found. As stated by the Supreme Court of Canada in Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), [2008] 1 SCR 661, at para 30: 

This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324).

[56] Ultimately, mitigation is a two-part test. The second part of the test requires PGRX to establish that Mr. How could have found comparable employment. As stated in Lake the issue is “whether the [the employer ] had proven that, if reasonable steps in mitigation had been taken by the [employee], she would have found a comparable position during the reasonable notice period” (at para 34). PGRX has led no evidence that a comparable job was available with any of the competitors at any time since Mr. How’s termination. PGRX clearly knows the players in the industry and, if comparable jobs were available in the industry, that evidence could have been called. Moreover, there was no evidence adduced by PGRX of any comparable jobs suitable for Mr. How since his termination. The onus was on PGRX to establish both prongs of the test. Regardless of whether Mr. How acted reasonably or not at the outset of his search, the defendant has failed to establish that he could have obtained a comparable job had he conducted the search as proposed by PGRX. 

[57] I do not find that PGRX has met the onus of establishing that Mr. How failed to mitigate his losses. 

If you would like a copy of this case, email me at barry@barryfisher.ca

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