Month: December 2021

Court Denies Stay in Pregnancy Extending Notice Period Case:

In Nahum v Honeycomb Hospitality ( no citation ) Justice Sossin denied the defendant’s motion to stay the enforcement of a summary trial decision which had been upheld by the Divisional Court which stood for the proposition that the reasonable notice period could be extended where the plaintiff was pregnant at the time of termination even when the employer was unaware of the pregnancy.

The Court found that there was a serious issue to be determined but that there was no evidence that to have to pay the judgement of $56,000 at this time would result in the defendant suffering irreparable harm.

Th Court ordered the Defendant to pay the monies into the trust account of its own lawyer pending the outcome of the appeal and ordered costs to the plaintiff in the sum of $5,000. This means that so far the Defendant has been ordered to pay costs of approximately $36,000 on a judgement of $34,000.

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

61 year old Finance Manger with 9 Months Service Gets 2 Months Notice :

In Flack v Whiteoak Ford Lincoln Sales, ( 20121 ONSC 7176 ) Justice Dunphy gives a very thorough analysis of how to weigh the various Bardal Factors of age, length of service, character of employment and COVID in relation to this short service employee.

He also said this about my very own Wrongful Dismissal Database ( WDD) available through Thomson Reuters:

[31] The defendant for its part relied quite heavily on statistical tables comparing large numbers of broadly similar cases suggesting a range about 2.24 months’ notice for salespeople in the 58-70 age bracket with less than one year of service.

[32] In my view, the range suggested by databases such as the “Fisher Database” can provide a useful view of the general range applicable, but this is only a starting point and not an end point.

Having said that a detailed analysis is required for each case on its own merits , he then awards a notice period in line with statistical average as determined by the WDD , or as he calls it the “Fisher Database”.

If you want to find out more about the WDD go to :

www.wrongfuldismissaldatabase.com

If you wish a copy of this case email me at barry@barryfisher.ca

Another Court Confirms That Mandatory Vaccine Policy Does not Force Employees to Get Vaccinated :

In Wojdan et al v AG Canada ( Fereral Court Docket T-1765-21 Justice Fothergill ruled against the appellants who seeking an injunction to prevent the implementation of the Federal govt mandatory vaccine policy.

As these were all unionized employees , the Court first rules that they would not exercise their discretion to intervene at this point as there was already under may an arbitration process dealing with the same issues .

On the second test of irreparable harm the Court commented as follows:

[35] Second, as Justice Akbarali explained in TTC, the Applicants have mischaracterized the harm at issue. The harm the Applicants may suffer is being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated. They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other (TTC at para 50, citing Lachance et al c Procureur général du Québec, November 15, 2021, Court No 500-17-118565-210) at para. 144 [Lachance]). Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.

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