Employee did not Fail to Mitigate by Refusing Defendants’ Offer to  Re-employ;

In Fredrickson v Newtech Dental Labs ( 2015 BCCA 357) the Court of Appeal  found that an employee in a small four  person company was not required to accept the offer of re-employment after she was laid off because :

a)  The offer of re-emeployment did not fully compensate her for the time that she was laid off ( it was short a months pay )

b) The trust between the parties was broken in that the employer had secretly taped conversations that he had had with the plaintiff on two occasions and when the owner told a co-worker that he thought that the plaintiff would be too embarrassed to accept his re-employment offer.

The Court emphasized that trust was a two way street.

“29.  Independent of the above, I am of the view that the trial judge was clearly wrong in failing to reflect the mutuality of trust, in the context of this employment, inherent in the relationship between employer and employee. The pertinent question when mitigation is in issue was described by Justice Bastarache as whether “a reasonable person in the employee’s position would have accepted the employer’s offer”. To determine whether this is so, in my view requires a judge to consider the full nature of the employment relationship. This includes the obligations of good faith or fidelity on the part of both the employer and employee, consistent with the nature of the work and the workplace. Most frequently questions of good faith, fidelity and fair dealing are questions that arise in the context of allegations of cause for the employee’s dismissal. The integrity of the employment relationship goes further, however. Just as trust of an employee, in the circumstances of the employment, is an important aspect for the employer, so too trust of the employer is important.” 

Court Upholds Repayment of Training Fees Provision:

In Langford v Carson Air ( 2015 BCSC 1458) the BC Supreme Court awarded the employer $23,000 as a result of the employee agreeing at the time of hire to reimburse the employer for training costs if she were terminated in the first 2 years. The plaintiff underwent intensive pilot training in the USA but then failed to pass her probationary period. The plaintiff sued for wrongful dismissal and lost while the defendant counterclaimed for the training costs and won.

Three Family Companies Found to be Common Employers:

In Dear v Glamour Designs ( 2015 ONSC 5094)  the Ontario Superior  Court found that the fact that the ” family business was split into three segments should not be the cause of injustice to Dear who was continuously employed by that common employer ” The Court noted that the father was heavily involved in all of the companies  and  all the companies operated out of the same physical space.  The Plaintiff salesman was 66 years old and  had 9.7 years service . He was awarded 12 months reasonable notice.

This trend of the Court to see through corporate structures and find common employer status for employment purposes was also recently discussed by the OCA in King v Danbury Sales ( 2015 CarswellOnt 6310).

Employee Abandons Employment by not Following STD rules :

In Betts v IBM ( 2015 CarswellOnt 12779) the employee went off on sick leave for depression. Despite repeated warnings and actions by the insurer and the defendant , the plaintiff did not follow the STD rules, failed to follow through on appeals and required medical reports and left the province he worked ( NB ) and moved to Ontario to live with his girlfriend. The Court found that he had abandoned his employment after 8 months of not being at work.

Court awards bonus over notice period even when it is discretionary :

In Lederhouse v Vermilion Energy ( 2015 CarswellAlb 1102 ) the Court awarded the bonus over the notice period even when it was expressly discretionary as the ” the discretion must be similarly exercised reasonably , on the basis of objective criteria allowing for positive and negative contingencies ” . The plaintiff was awarded  a $49,906 payment, which was the average over the last 3 years.

Supreme Court of Canada agrees to hear appeal in Wilson v AECL

The SCC  gave leave to the Plaintiff’s to appeal the Federal  Court of  Appeal in this ground breaking case regarding unjust dismissal under the Canada Labour Code.  In the lower Courts it was held that a dismissal without just cause   was not unjust if the proper severance was paid, which was contrary to decades of  Canada Labour Code adjudicator jurisprudence which held that only a dismissal for just cause could avoid the section’s remedies, including reinstatement. This decision will be of keen interest for all those in the employment law bar as the Federal Court decision has made this unjust dismissal legislation a  less useful remedy as in most cases the employee would be better off with a civil action for wrongful dismissal if the reinstatement option is not realistically available under the Code.

Court Upholds 3 Year Fixed Term Contract

In Alsip v Top Rollshutteers Inc. the BC SC upheld the following language as constituting a fixed term contract:

” The position is full time and permanent. Your compensation will be as follows: A three year employment contract”.

The Employer argued that this meant a maximum of three years of employment and could be terminated sooner on reasonable notice. The  Plaintiff was  terminated after 1 year. The Court  awarded damages for the the remaining 2 years in the contract.

As the Employer had drafted the contract, the Court applied the legal doctrine that read any ambiguity against the author of the document.

Employer Liable for LTD Benefits

Refusal to provide ex employee with LTD forms makes employer liable for LTD benefits : In Fernandes v Peel Educational ( 2014 CarswellOnt 15891) the employer refused to provide the plaintiff with LTD application forms until into the litigation. As this was after the termination period under the ESA , the insurer denied coverage. The Ct found that but for this action, the Plaintiff would have received LTD from the insurer, thus the employer was now liable for the LTD amount of $2k/month for up to 9 years.

$30,000 Wallace Award

$30,000 Wallace Award: In Turner v Nfld & Lab Legal Aid Commission (2014 NLTD (G) 156) the plaintiff, a 22 year staff lawyer was awarded 22 months notice and $30,000 Wallace damages for unfair treatment at time of termination consisting of an extremely nasty termination letter, failure to pay $40,000.00 in vacation pay, not allowing access to internal grievance procedure, failure to apply progressive discipline, treating him differently from other employees and management testifying before the Law Society. Plaintiff had medical evidence to support his claim . Termination occurred in 2003.