Author: barryfisher

In Posehn v. CIBC, 2018 ONSC 1458, Master Jolley was dealing with an objection by the Plaintiff that the Defendant had pleaded in its defence the terms of a settlement offer which the Defendant made at the time of termination.

Master Jolley noted that in a simple notice case it would be both irrelevant and improper to plead such an offer. However in this case, the Plaintiff has pleaded bad faith, aggravated and punitive damages because at the time of his termination they only included his base salary and not his variable income in their termination payment.

Therefore the pleading of the Defendants’ offer was relevant to the accusation of bad faith and bad behaviour at the time of termination. Presumably this was plead to show the Judge that the Defendant were not a bunch of meanies.

The pleading was not struck.

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

In  Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONCA 655 , the Court upheld a 10 month notice period for a 47 year old Director of Marketing Communications with just under 3 years service who was making $132,000 /year plus bonuses.

The Court also noted that the trial judge had properly taken into account the economic effects of the COVID pandemic in May of 2020, when the Plaintiff was terminated.

On a second issue, the Appellant argued that notwithstanding the parties agreement to use a non roster mediator ( my good friend Peter Israel), the Defendant should only be required to pay the $300 roster rate as part of the costs award and leave the winning party responsible for the rest.

The Court rejected that argument and said that this was well within the discretion of. the triall judge to have the losing party paid the entire disbursement.

Conflict Note: Winning counsel was my very own eldest son, Matthew Fisher. I never get tired of saying that.

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

In Cho v. Café La Foret Ltd., 2022 BCSC 1560, Justice Shergill had a situation where a 60 year old  Head Baker in a Korean bakery was found to have inappropriately touched a 20 year old subordinate on the shoulder, arm and buttocks.

The Employer conducted an investigation in which the Plaintiff admitted his conduct and agreed to apologize to the young woman. However the Employer told him the only way he could keep his job was to sign an affidavit ( in English which was not a language that the Plaintiff was comfortable) admitting that he had committed a sexual assault. The Employer refused to give the Plaintiff his ROE unless he signed the affidavit. The sole purpose of the affidavit was to enable the complainant to press criminal carges against the Plaintiff.

The Court found that the sexual harrassment was ” relatively minor” and was just a “gross error of judgement” . The Court initially awarded 5 months notice but then reduced it to two months due to a failure to mitigate, resulting in a reduction of about $16,000. The Court then awarded $25,000 in punitive damages because of the attempt by the Employer to have the Plaintiff sign the affidavit and put himself in legal jeopardy.

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

In  Ferguson v. Yorkwest Plumbing Supply Inc. 2022 ONSC 479 Associate Justice Jolley decided that “enough was enough” with roadblocks that the defendant had cosnstruced to delay a simple wrongful dismissal action .

This is what the Defendant did;

1. Defence counsel repeatably ignored Plaintiff’s counsel agreement on dates for discoveries following a failed mediation.

2. The Plaintiff then served a notice of examination 10 days forth, which the defence responded to 7 days later saying that neither he nor his client were available.

3. Again Plaintiff’s counsel asked for dates and again defence counsel ignored him. Plaintiff counsel again served a new notice and this time defence counsel said that he could not attend due to ” medical reasons”.

4. Plaintiff’s counsel served a third notice which the defence also ignored. Plaintiff obtained d a Certificate of Non Attendance and brought a motion before Morgan J. who ordered discoveries to be completed by February 28th and warned that if the defendant failed to comply he would suggest that there be ” an admonishment directed at the Defendant”.

5. The defendant failed to attend on the set date because there was a dispute as to who was to be examined first.

6. Noting that this was a Simplified Procedure of a relatively straightforward dismissal case and the vulnerability of terminated employees, the Court struck the Statement of Defence, leaving the Plaintiff to proceed to a motion for summary judgement in which the Defendant has no say.

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

In  Henderson v. Slavkin et al., 2022 ONSC 2964 Justice Carole Brown again dealt with the CERB issue .

She held that in this particular case, CERB did not reduce the wrongful dismissal damages for the following reasons:

First, the Plaintiff had not ceased working for reasons related to COVID-19 ( as required by Section 6 (1) (a) of the CERB act , rather she was let go because her employer was retiring and shutting down his dental practice. Therefore the Judge concluded that the plaintiff might have to repay the CERB.

Second, the Judge somehow determined that CERB was intended ” as an indemnity for wage loss related to COVID-19, not for wage loss arising from an employer’s breach of an employment contract. ”

Third, justice dictated that the allocation of risk of repayment should not fall upon the Plaintiff as she was a older and long serving employee.

My Comments :

All of the cases which have said that CERB is not to be deducted from wrongful dismissal damages point to the fact that the plaintiff may have to repay CERB.

I am personally unaware of this ever happening nor am I aware of any section of the CERB Act which would even be grounds for a repayment in these circumstances.

If anyone knows of a repayment obligation arising from a wrongful dismissal payment, please contact me.

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

In Henderson v. Slavkin et al., 2022 ONSC 2964 Justice Carole Brown dealt with the legality of an ESA Termination  Clause.

The actual termination clause itself was found to be OK but both the confidentiality clause and the conflict of interest clause had the following sentence

A failure to comply with this clause above constitutes both a breach of this agreement and cause for termination without notice or compensation in lieu of notice. 

The trouble was that in both of these clauses the list of items that would constitute a breach was so broad that it vastly exceeded the concept of wilful misconduct under the ESA. For instance, the confidentiality clause defined confidential information as including any information about the assets of the employer. Presumably if the employee told a relative that her employer owned the building they worked out of, that this would constitute a breach.

Here is the funny part. This agreement was between a 63 year old receptionist and two 70+ year old dentists who were shutting down the dental practice and retiring. The employment agreement should have just covered the employer’s liability for termination costs, but instead the author of the agreement threw in these extra and completely unneeded clauses. Had they not included the one sentence referred to above, the ESA termination provisions would have been upheld, and because the plaintiff received 6 months working notice, this Plaintiff would have received zilch additional monies.

This case teaches us that defects in a termination clause can be found not only in the termination clause itself but also in any employment agreement that deals with termination. Thus lawyers should carefully review all agreements and policies to make sure that they do not offend the ESA.

This can include:

All parts of the employment agreement

Confidentiality Agreements

Solicitation Agreements

Stock Options and Bonus Plans

Policy manuals and statements

Ownership of intellectual Rights and inventions.

In essence, any  agreement or policy that refers to the fact that a breach of that policy will lead to termination without compensation could invalidate any otherwise enforceable termination clause.

This issue really only affects employees under the Ontario Employment Standards Act as, unlike other jurisdictions, it does not use the concept of just cause but rather the much more limited concept of wilful misconduct.

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

 

In Toy v. 0954516 BC Ltd.,( 2022 BCSC 1161) Justice Walkem intially awarded 5.5 months notice to a 61 years old Fuel Attendant with 5 years service making $40k.

However when she found out that over a 12 month period he only applied to 3 jobs by looking on his computer and by driving around and looking for Help Wanted signs the Judge determined that this was not reasonable and therefore she cut 2 months off the notice period.

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

In Szabo v CP Rail ( 2202 CIRB 1019) Adjudicator Asbell determined that the Complainant , who was a Train Master, was terminated without just cause as the penalty of termination was too severe and because CPR did not follow the principles of progressive discipline .

Recognizing that tye employment relationship was unlikely to be reestablished , the Adjudicator assessed damages in lieu of reinstatement  as follows:

1. He was awarded all of his back pay from date of termination to the date of the award ( approximately 24.5 months) less a one month suspension.
2. He was also awarded damages for the loss of  secure employment in the future. This is based on the theory that had the employee not been unjustly dismissed he would have kept the job for a long time, perhaps even to retirement and therefore should be compensated for this future loss. There are course various contingencies to be taken into account, such as the employee may have quit this job for another job, he might have had to stop working due to poor health or death.
3. However, if he  were reinstated there is a strong likelihood that he would have been terminated for just cause in the future. This is what the  adjudicator  said :
4.  First and foremost, the parties here both agreed—without the need for determination—that the employment relationship was irreconcilably fractured. Mr. Szabo did not agree with the attitude exhibited by senior management within CP, and senior management within CP did not agree with Mr. Szabo’s attitude, both prior to the events leading to his dismissal and at the hearing itself. The Board accepts that both parties’ very negative attitudes towards each other would have likely persisted to the detriment of the employment relationship had Mr. Szabo been returned to work. At the hearing itself, Mr. Szabo conducted himself with the utmost confidence and was unafraid to attack, and accuse, the senior CP witnesses. Whether right or not, and whether overly aggressive or not, the style of questioning exhibited by Mr. Szabo appeared to leave at least a couple of the members of the senior team less than enthralled with him. If there was any possibility of an amicable return prior to the cross-examinations, such possibilities were quickly squelched. While admittedly speculative, the Board has little doubt that CP would have issued further letters addressing Mr. Szabo’s attitude and that his bonus would have continued to receive deductions as a consequence. The Board also has little doubt that CP would have learned a lesson about progressive discipline in relation to Mr. Szabo and at the first hint of conduct it viewed as problematic would have begun a series of performance management measures likely leading Mr. Szabo into a just dismissal situation, as it would be highly unlikely that Mr. Szabo would change his approach or attitude toward any of CP’s senior management. Alternatively, and more likely, Mr. Szabo would have told the senior CP management he had “had enough of their BS,” as the Board quoted him during the hearing, and either negotiated his own departure or simply found another job in the interim. Just as Arbitrator Surdykowski found in Lakehead University, the Board finds it is a virtual certainty that Mr. Szabo would very soon have been in workplace hot water again, one way or the other, and that CP would have successfully terminated his employment, or he would have voluntarily left long before he reached retirement age. 
5. He was awarded 16 months pay for this part of the loss for a total of about 39 months .

My Comments :

There are a few important lessons to be be learnt here.

1. The Complainant was self represented. No competent  lawyer would let him rant on about how horrible senior management at CPR was. He would instead have testified that he admits he made a serious  error of judgment, that he has  learnt his lesson , that he loves his job and desperately wants a second chance. Judges and adjudicators love remorse.
2. It is amazing how the adjudicator  can predict the future with such precision.
3. How a party acts at a hearing can have a profound effect on the decision maker. The better the actor, the better the outcome. When I was counsel I always had to remember that the judge only sees my client for a short period of time whereas I have known him to be a not so truthful person for years. First impressions matter very much in Court.
4. The other method of determining damages for loss of job security is the Notice Method which in the words of the Adjudicator :” The Notice Model provides a “gross up” for the value of collective agreement benefits from that typically given by the courts in wrongful dismissal cases. In this sense, and as noted by Arbitrator Hornung in Teamsters Canada Rail Conference v. Canadian Pacific Railway Company, 2021 CanLII 30674 (CA LA) (Hornung), this model “provides a more exact and measurable tool in order to assess the variables at play and avoids the need for clairvoyance” (see paragraph 25). 

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

In Benke v Loblaw Companies Limited, 2022 ABQB 461 Justice Feasby had a situation where an employee who was required to routinely visit stores refused to wear a mask or a face shield and did not provide medical evidence to back up his claim.

Instead of terminating him, the Defendant put him an unpaid leave of absence and continued up to the date of the trial to maintain that he was still an employee and could return to work now that the mask mandate was lifted.

The Court found that the Plaintiff was not constructively dismissed as the Defendants action in putting him on a leave of absence without pay was reasonable as it was the Plaintiff’s voluntary decision not to comply with the policy.

The Court held that the Plaintiff had resigned.

Many employers have chosen this technique of using a leave of absences without pay instead of termination with just cause to deal with person who refused to vaccinate contrary to a policy. This case gives support to that position .

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