Intentional Delay in Issuing ROE Results in $1,000 Damage Award:

In Ellis v Artsmarketing Services Inc (2017 CanLII 51563 (ON SCSM), Prattas DJ had a situation where he found that the Employer intentionally delayed issuing an EI Record of Employment for 5 months and then said that the employee quit on the ROE.

Here is what the Judge said about this issue:

The Record of Employment and inconvenience damages

[55]           There was some confusion as to the ROE. The plaintiff testified that she asked for it right

away, while the defendant said that since she was not terminated from the company but merely from the particular campaign it did not have to provide her with the ROE.

[56]           An employer is required to provide a ROE directly to Service Canada within seven (7) days of an interruption of earnings. Even if the defendant felt that it had not terminated the plaintiff from the company on April 1, 2016, it certainly knew by June 2016 when it was served with the Plaintiff’s Claim, which had been commenced on May 31, 2016. Yet despite this the defendant did not issue a ROE until August 12, 2016 and when it did issue it the defendant declared that the reason of termination was that the plaintiff had “quit”.

[57]           If the plaintiff had “quit” as alleged by the defendant, then, why didn’t the defendant issue the ROE much earlier than August?

[58]           This intentional act of the employer in inordinately delaying issuing the ROE and the declaration of “quit” resulted in the plaintiff being denied employment benefits, which in turn resulted in financial hardship of the plaintiff who had to borrow money from others, including family members, to meet her needs. 

[59]           It is trite to repeat that an employer must promptly submit the ROE whenever there is an interruption in earnings. This was acknowledged by Shifman in his testimony. It is obvious that the dithering by the defendant for about five months before submitting the ROE is inexcusable and caused the plaintiff stress and inconvenience for no good reason.

[60]           Jurisprudence has allowed the recovery of inconvenience damages under a variety of circumstances. See the following cases: Jarvis v. Swans Tours Ltd. [1973] 1 All ER 71; Fuller v. Healey Transportation Ltd. (1978), 1978 CanLII 1693 (ON SC), 22 O.R. (2d) 118; Tanglewood (Sierra Homes) Inc. v. Bell [2010] O.J. No. 2344; Foghi v. MCI Travel Ltd., [2013] O.J. No. 1759; Karampatos v Torabipoor, [2004] O.J. No. 4255;  

[61]           Taking into consideration what the plaintiff went through as a result of the defendant’s deliberate act of not promptly submitting the ROE and the initial rejection of the plaintiff’s application for employment benefits, I think that the sum of $1,000 is an appropriate, fair and proper amount under these circumstances for inconvenience damages to be paid by the defendant to the plaintiff.   

I believe that this may be the first time that damages for “inconvenience damages ” for delaying the issuance of an ROE has been awarded in a wrongful dismissal case.

On the issue of reasonable notice the Judge awarded 9 months notice to a 9.2 year part time sales rep whose age was over 50.

The Judge also noted the submission by the paralegal for the Plaintiff on the issue of reasonable notice by referring to his use of the Fisher Wrongful Dismissal Database, a publication which I am somewhat familiar.