Month: August 2017

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.

In Ramos v Hewlett-Packard ( Canada ) ( 2017 ONSC 4413 Justice Ryan Bell found that it was inappropriate for the Defendant to plead in their Defence that they had ” offered the plaintiff a reasonable settlement package”.

She offered two reasons for this :

1) The offer contained in the termination letter was intended to settle the matter and thus was without prejudice even though it did not say that it was without prejudice.

2) ” What constitutes reasonable notice will be an issue for the trial judge to determine, what Hewlett- Packard offered to Ms Ramos is irrelevant.

My Comment:

If the Defendant had actually paid the amount in the offer to the Plaintiff, then the Court would be able to judge whether the notice provided was reasonable. In my reading of thousands of wrongful dismissal cases , it seem that where the employer actually pays what they think reasonable notice is, the Courts’ assessment of reasonable notice is lower than where the employer only pays the ESA minimums and then litigates over the amount of reasonable notice.

In McLeod v 1274458 Ontario Inc ( 2017 ONSC 4073) Hood J . had to determine the notice period for a 48 year old mover making $40K with 18 years service.

In commenting on the relevance of the character of employment the Judge said :

29 The plaintiff had worked as a driver and mover for the defendant for 18 years and was 43 years old when terminated. He had no special training or qualifications. The defendant argues that, because the plaintiff lacks special skills and was not a specialized employee, the notice period should be reduced.

30 When Bardai was decided in 1960, it was to some extent a different work environment than today. The longer notice period for senior management employees or highly skilled and specialized employees and a shorter notice period for lower rank or unspecialized employees as suggested by the defendant may have been appropriate in 1960. If anything, in today’s world and economy, that has changed. Those with skills and specialties change jobs frequently and rapidly. Those without skills and specialties, I believe, find it more difficult to find employment.

He went on to award 12 months notice.