Month: June 2022

In Gascon v. Newmont Goldcorp 2022 ONSC 2511 Justice Fregeau had a situation where a General Manager of a large mine was told that the mine was being sold but that his employment would continue with the new employer.

The trouble was that two months before the deal closed the employer decided that if the new owner would not hire the Plaintiff  then he would be terminated. They failed to tell him this. In fact even when they knew one week before closing that the new owners were not going to hire the Plaintiff, they failed to tell him .

The Court did not like this and made two rulings as a consequence of this:

1) He was awarded $50,000 for moral damages because their conduct was ” untruthful, misleading and unduly sensitive “.

2) The Plaintiff had regularly received a very significant discretionary Long Term Incentive ( LTI) every year around March of every year, part of which vested immediately. However in the year in which the deal closed ( on March 30th) they decided not to grant him a LTI because they knew they were going to fire him. This was found to be a unfair and discriminatory exercise of discretion as the bonus was intended to compensate him for his efforts in the past year.

This is what the Judge said :

[90] However, as noted by Wilton-Siegel J. in Chann v. RBC Dominion Securities Inc., 2004 CanLII 66310 (ONSC), at para. 79, the fact that the decision to terminate the employee’s employment had been made “did not remove the need to approach the process of decision making in the same manner as in past years. The [employee] was contractually entitled to have his remuneration determined on the same basis as in prior years and for other employees in the same year”.

[91] As this decision explains, Mr. Gascon was contractually entitled to have Newmont Goldcorp consider an LTI award in his favour at the usual time (the beginning of March according to Mr. Thornton) using the usual criteria that were applied to all other employees. It follows that Mr. Gascon may have been contractually entitled, despite the wording of the May 2019 Employment Agreement and his imminent termination, to an LTI award from Newmont Goldcorp in March 2020.

However, given the lack of evidence on this issue the Judge ordered a mini trial on the issue of both entitlement and quantum of the Plaintiff’s entitlement to the LTI award  for the year the Plaintiff had just completed.

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

In another of the many CERB cases, the case of Donovan v. Quincaillerie Richelieu Hardware LTD., ( 2021 NBQB 189) has come down in favour of not deducting CERB from wrongful dismissal damages.

This is what Justice LeBlanc said:

63. Regardless of any basis upon which Iriotakis, supra, may be distinguishable, I take a view similar to that taken by the Court in Slater, supra, that Mr. Donovan will likely be required to repay the CERB benefits given that there is a requirement for repayment by the recipient if they are rehired or received retroactive pay from their employer. It is indisputable that damages awarded to Mr. Donovan are a form of payment for the period during which he would have been working had he received reasonable notice of his termination. There is a likelihood that he could be required to repay such benefits if it is found that they relate to the same time for which he is compensated through damages.

64. Should Mr. Donovan be required to repay the benefits, it would be unfair that damages to which he was entitled were already reduced, leaving him to explain and justify why he should not have to repay while Richelieu receives credit for the money through a reduced damage award. Although there is a risk that Mr. Donovan may benefit from a windfall if he is not required to repay, that windfall
will not have caused Richelieu to pay an amount greater than what would be justified in the absence of the CERB program. Consequently, the CERB payments will not be directly deducted from the damage award.

Commentary;

No basis is given in the judgement as to what statutory provision the government could or has even tried to claw back CERB on the basis that the person subsequently received a wrongful dismissal award. There is a specific provision in regards to EI repayments but when I examined the CERB legislation I was unable to find any statutory authority to do the same . if someone could point out to me what the statutory basis the Feds could use to force repayment of CERB payments as a result of a subsequent award or payment of wrongful dismissal damages, I would be pleased to blog about it.

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