Month: December 2016

In Bawa v Royal Bank of Canada ( Supplementary Award-Remedy dated January 1, 2014) Adjudicator Novick , in addition to awarding 9 months pay in lieu of reinstatement, ordered the following three non-monatary remedies against the Bank.

1. To advise the Ontario Securities Commission that Mr. Bawa had been determined to be unjustly dismissed.
2. To provide a letter of recommendation outlining Mr. Bawa’s positions held and stating that his performed his duties in a satisfactory manner. This was later changed to say that the Complainant was ” at times highly rated, and in 2010 was nominated by his Branch Manager for a top performers’ award for his geographic area”
3. Rather than remove all references to his original dismissal for just cause from all Bank records, the Bank was ordered to include in his file a copy of the Adjudicators’ original award finding that his dismissal was unjust.

In Brisebois v Shaw Communications Inc ( 2016 CarswellNat 4227) Adjudicator Peterson ruled that even though the Complainant had not even attended at the hearing and subsequently lost his case, he had no statutory authority to award costs to the Employer as his power to order a remedy was only upon a finding that the Complainant was unjustly dismissed.

Of course there is no doubt that Adjudicators are permitted to award costs in favour of a Complainant as part of their jurisdiction to make the terminated employee whole.

This costs advantage is one more reason that many terminated Federally regulated employees choose to file an Unjust Dismissal complaint under the CLC rather than filing a law suit and exposing themselves to adverse costs awards.

Furthermore, if the Complainants’ lawyer is on a contingency feee arrangement, then they have effectively eliminated any risk of costs exposure for the Complainant in a loss because the client neither has to pay their own lawyer or the Employer’s legal  costs.

In Garrity v Richmond Kinsman Home Support Society ( 2016 BCSC 2204) Justice Pearlman was faced with a plaintiff who claimed that she was constructivley dismissed because of bullying and harassment by a co-worker.

She plead the case as follows :

16. As a result of the Incident, the Defendant’s failure to respond to the Incident, the issuance of the baseless disciplinary letter and the formal demeaning directive, the Plaintiff suffered physical and emotional stress resulting in her taking sick leave on or around January 18, 2016.

18. As a result of the actions and inactions of the Defendant, and the resultant effect on the Plaintiff’s health, the Plaintiff’s Employment was repudiated by the Defendant.

The Defendant took the creative position that as the plaintiff was an employee claiming that she had suffered an injury in the workplace caused by another employee that the BC Workers’ Compensation Act provided that the Workers’ Compensation Tribunal Appeal Tribunal had exclusive jurisdiction over the issue and therefore no Court could hear the case.

The Court agreed and ordered a stay of the civil lawsuit until such time as the Tribunal had ruled on whether or not they had exclusive jurisdiction over the matter.

Although this is BC case, the Ontario Act has similar provisions, so the result could easily be the same.

In Cabott v Urban Systems ( 2016 YKCA 4 ) the Court found that the proper notice period for a 53 year old Engineer with 1 year and 2 months service was 4 months and not the 6 month notice period awarded by the trial judge .

However, what is interesting about this case is the comments that the Court made about notice periods for short service employees. The following quotes illustrate this point:

15] …. the respondent submits that the recent jurisprudence supports a notice period of five to six months in short service cases. While B.C. precedents are consistent that proportionately longer notice periods are appropriate for employees dismissed in the first three years of their employment, I see little support for the proposition that five to six months is the norm in short service cases for employees in their thirties or early forties whose function is significant for their employer, but not one of senior management. … Absent inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason for extending the notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of the respondent when adjusted for age, length of service and job responsibility: ( emphasis added) 

15.  In Hall this court shortened a notice period of seven months to three months for a 42-year-old skilled employee with approximately nine months’ service with his employer. Madam Justice Newbury, for the court, summarized:
[42] Of course, courts of law must also look to what awards have been given in similar cases. In this regard, Ms. Gill referred us to a number of cases involving employees with short-term periods of service in which notice periods of two or three months were selected: see especially Jimmo v. Chief Hauling Contractors Ltd. [2009] C.L.A.D. No. 129 and Allen v. Assaly Holdings Ltd., [1991] 34 C.C.E.L. 81 (Ont. S.C.J.) We were also referred to this court’s decision in Saalfeld v. Absolute Software Corp., 2009 BCCA 18, in which a “norm” of five to six months’ notice in “short service cases for employees in their thirties or early forties whose function is significant for their employer, but not one of senior management,” was rejected. (Para. 15.) The Court suggested that British Columbia precedents indicated a range of two to three months for a nine-month employee in the shoes of the plaintiff in Saalfeld. ( emphasis added) 
. . .
[44] In this case, the trial judge’s choice of seven months as the appropriate period of notice did fall outside the usual range, which as we have seen is generally around two to three months in cases involving short periods of employment and skilled employees who are in their forties. I would allow the appeal on this ground as well. ( Emphasis added) 

18. On the other hand, there is some force to the submission that Ms. Cabott’s position in Whitehorse, described by the judge as senior and supervisory management, involved somewhat greater responsibility than the positions discussed in Saalfeld and Hall. Accepting the description of the range of notice for specialized employees in short term positions as two to three months as observed in Saalfeld and Hall, the character of this employment would justify an award modestly beyond that range.

23. For a short term employee the useful starting place in discussing range is the two to three months spoken of in Saalfeld and Hall. The only feature of this case that would extend that range (there being no special circumstances such as inducement, bad faith or a poor labour market) is a level of responsibility not present in those cases.( emphasis added ) 

Before you thinking  that the Yukon Court of Appeal is not that important , please note that two of the  judges sitting on that Court are actually Court of Appeal judges of the BC Court of Appeal. This decision was written Madame Justice Saunders, the author of many BC employment judgements.

In Sinnathamby v The Chesterfield Shop Limited ( 2016 ONSC 6966) Justice Charney assessed reasonable notice for a 45 year old Senior Customer Service Agent with 14 years service at 10 months.

However, insofar as she did nothing to look for a job for  the first 15 months following her dismissal, he reduced the damages to 6 months notice.

The Judge rejected the Plaintiff’s excuse for not looking for 15 months with these words:

119. The plaintiff acknowledges that she did not begin to look for alternative employment until January 2012, fifteen months after her dismissal. She claims that her medical condition prevented her from looking for work before that period. As already indicated, the plaintiff has filed no admissible medical evidence to support her claim that she could not work prior to January 2012.

122. In the absence of any admissible medical evidence to support this delay I conclude that it is appropriate to reduce the notice period for which the plaintiff is entitled to damages to six months.

Upon first reading these paragraphs, one might think that the Plaintiff submitted no medical evidence, however the Judge spent considerable time reviewing her medical evidence and found it to be wanting at best. This is what he found:

Medical Evidence
74. The plaintiff alleges that she was “diagnosed by Dr. Chen as suffering from depression, hypertension and anxiety”. She also claims that as a result of her wrongful dismissal she has “suffered further depression, mental distress and emotional anguish”. She alleges that her illness “stemmed from work related stress and prevented her from seeking and obtaining alternative employment”.
75. These allegations are unsupported by any evidence whatsoever. Dr. Chen did not file an affidavit on this motion. Even the medical documents that the plaintiff did file belie this claim. None of the doctor’s notes filed by the plaintiff include any such diagnosis. The hospital records relating to her emergency visit to Toronto Western Hospital on September 17, 2010 filed by the plaintiff state that the plaintiff’s “presenting complaint” was “vertigo” and the clinical notes state that she “came to ER because it takes 2 weeks to see family MD”. The notes indicate that she should take gravol as needed for nausea. The triage assessment states that her chief complaint was dizziness and that she “reported intermittent dizziness x 2 weeks”. There is no reference to depression, hypertension, anxiety, mental distress or emotional anguish, let alone any evidence linking such diagnosis to her dismissal from Chesterfield.
76. The medical report from October 27, 2010 states that she is a 44 year old female who presents with dizziness and imbalance. It states:
Mrs. Sinnathamby states that approximately two months ago she developed upper respiratory tract infection for which she was started on antibiotics. That eventually resolved but subsequent to that she developed episodes of vertigo. She describes them as true vertigo, and positional in nature, worse when in a lying down position. She has no associated fluctuating hearing loss, no aural fullness and no tinnitus. She otherwise has no focal neurological features. In particular she has no symptoms consistent with vertebrobasilar insufficiency. Since having started the BETAHISTINE she does feel that her symptoms are improving.
77. None of these records contains any reference to depression, hypertension, anxiety, mental distress or emotional anguish. All of her medical records up to and including July 2011 relate to dizziness and vertigo.
78. There are some barely legible clinical notes commencing September 2011 that state that the plaintiff is “depressed”, but in the absence of an expert affidavit to explain the relevance or significance of these cryptic references they do not meet the “best foot forward” obligation imposed on a party moving for summary judgment.
79. The plaintiff places particular reliance on a clinical note dated January 18, 2012 that, again, is barely legible. The parts that can be read state:
Sleeping better . . . overall better. Was terminated at work. Depressed at home. Will look for job.
80. In the absence of an expert affidavit explaining the relevance and significance of these comments they do not support her claim for mental distress or her claim that she was unable to return to work prior to January of 2012. Even on its face the clinical note does not indicate that Dr. Chen advised her that she could not return to work prior to January 18, 2012; it appears that she made the decision to look for a job herself. The note appears to reflect what the patient has reported to the doctor and not what the doctor has diagnosed.
81 .Indeed, the plaintiff was aware that she required an affidavit from her doctor to support the allegations made in this lawsuit. Dr. Chen’s final clinical note dated January 5, 2016 states “Upset/depressed re: wrongful dismissal, wants affidavit re: medical condition at the time — off work ~ 1year since Sep. 2010. Now has moved on — different job. Still has unresolved ill feelings”.
82. No such affidavit was provided, but Dr. Chen did provide the plaintiff with an undated note stating: “This is to certify that Suchitha may return to work as of January 18, 2012”.
83. The note, by itself, is not particularly helpful. It does not indicate whether or why she was not able to return to work earlier. It does not provide a date range of when the plaintiff was unable to work or why. It appears to be carefully drafted to say as little as possible. Since it is not part of an expert affidavit that can be cross-examined it cannot be used to support the plaintiff’s claim on a motion for summary judgment.
84. There is some dispute as to when this undated note from Dr. Chen was written. All of Dr. Chen’s other notes were dated. The undated note was not included in the plaintiff’s original affidavit dated April 4, 2016. On cross-examination she gave conflicting evidence, initially stating that she could not recall when she received the note or how it came into her possession. I agree with counsel for the defendant that the note was likely written by Dr. Chen around the same time as the plaintiff’s reply affidavit (September 13, 2016) because Dr. Chen was unable or unwilling to provide an affidavit. Pursuant to Rule 20.02(1) I have drawn an adverse inference from the plaintiff’s failure to provide an affidavit from Dr. Chen or any other medical expert.
85. I have dealt with the plaintiff’s medical allegations in some detail because they are allegations that are subject to objective verification. Other allegations (such as the dispute regarding the telephone calls between the plaintiff and Mr. Bochynek) are more difficult to resolve on an objective basis. It is clear from the medical records provided by the plaintiff that she complained of dizziness and was diagnosed with vertigo in September/October 2010. Yet her affidavit makes no mention of vertigo or dizziness, and claims instead that she was diagnosed with depression, hypertension, anxiety, mental distress and emotional anguish.
86. Based on this objective inconsistency between her affidavit and her medical records I find that the plaintiff is not a credible or reliable witness. There are other parts of her affidavit evidence that are also unreliable (I will address these later), and at the end of the day I am inclined to believe Mr. Bochynek’s versions of events rather then the plaintiff’s.

It seems that the  Judge was not particularly pleased with the Plaintiff putting forth a less than believable medical excuse for not looking for a job. His award of 6 months ( 26 weeks ) is only 4 weeks more than her ESA minimums of 22 weeks.