Author: barryfisher

CLC Adjudicator Awards $90,000 in Costs :

In P.D. v Bank of Nova Scotia ( 2020 CarswellNat 640) ) Adjudicator Kaufman found that she did indeed have the authority to award costs to the Complainant in an unjust dismissal case.

She then in essence awarded substantial indemnity costs, the only reduction being on some of the paralegal fees. There was no reduction for the lawyers’s hours or rates.

This what she said on the issue of the level of costs:

57 As it would be inequitable to impose a costs obligation, if only partial, on the successful complainant, who has done little to contribute to the costs she incurred, other than to have been misjudged by the employer, I find no persuasive reason to order the employer to pay costs on a Partial Indemnity scale.

My Comment:

What is interesting about this case seems to be the acceptance that to make the injured party whole, all of their reasonable legal fees should be paid by the employer. This would make CLC adjudications perhaps even more beneficial to  terminated employees than a wrongful dismissal court case  where the default cost award is only partial indemnity costs.

Four Verbal Sexual Harassment Comments is Not Just Cause :

In Hucsko v A.O.Smith Enterprises ( 2020 ONSC 1346) Taylor J. had a situation where a 60 year old male employee  interacted with a fellow manager in the following fashion:

3      Samar Niazi began her employment with the defendant in 2014 as a Project Manager. In her position she interacted with the plaintiff but their lines of report were different. The plaintiff worked on projects being managed by Samar Niazi.
4      On June 28, 2017, Samar Niazi made a complaint to Nodine Kalcic, the Human Resources Manager of the defendant, regarding four incidents involving she and the plaintiff.
5      She reported that on the day following a managers’ dinner meeting, during the course of a conversation with the plaintiff about the previous evening, she said everyone “had a good time”. The plaintiff then asked if she had danced on the tables. She told him that his comment was inappropriate and she terminated the conversation.
6      The second incident reported by Samar Niazi involved a conversation between she, the plaintiff and Aymen Abdel-Rehim, the Product Development Engineering Manager of the defendant and the plaintiff’s immediate superior. They were discussing the next step to be taken on a project. The plaintiff said to her that she needed to go and sit on a male coworker’s lap and ask him nicely to provide information which was needed. She said both she and Aymen Abdel-Rehim told the plaintiff that his comment was inappropriate. In her written complaint, Samar Niazi did not provide dates on which the first two incidents occurred.
7      The third incident occurred during the week of June 19, 2017. She was at the plaintiff’s desk. They had a discussion about gardening. The plaintiff said to her that any reason for her to bend over and go down on her knees was good. She did not say anything and walked away from the plaintiff’s desk.
8      The fourth incident occurred on June 26, 2017. This interaction again occurred at the plaintiff’s desk. They were discussing a PowerPoint presentation about a project on which they were both working. Plaintiff began composing an email. Samar Niazi’s name was the first of the recipients. She made a comment about being at the top of the list. The plaintiff responded by saying “of course you are on top, you are getting pumped from under the skirt so you cannot stand anymore”. As he made this comment the plaintiff made multiple thrusting gestures with his hips. She was shocked by the comment and the gesture. She decided to make a report to Human Resources.
Ms Naizi was not cross examined by Plaintiff’s counsel.
The Plaintiff testified as follows:
12      With respect to the dancing on tables comment, the plaintiff testified that he and Samar Niazi had a discussion before the managers’ dinner about her not wanting to attend. He encouraged her to go to the dinner meeting. The next day Samar Niazi said she was very happy she had gone to the dinner meeting and everyone enjoyed themselves. The plaintiff asked if everyone was dancing on the tables. He meant this to suggest that everyone had had a lot of fun.
13      The plaintiff testified that in a meeting with Aymen Abdel-Rehim and himself, Samar Niazi was complaining about not receiving necessary information from another coworker by the name of Simon. The plaintiff said he told her to sit on him until he produced the information she needed. He said he intended to convey to Samar Niazi that she had to pin down the coworker until she received the information she required.
14      The plaintiff explained that the down on your knees comment was made during the course of a conversation he had with Samar Niazi about gardening. He said he suggested that she use a kneeling pad while removing weeds from her lawn. He said he did not make a thrusting gesture with his hips. Rather, his chair became stuck in a rut in the carpet in his cubicle which necessitated a thrusting type gesture to extract the chair from the rut in the carpet.
15      With respect to the pump the skirt comment, the plaintiff testified that he and Samar Niazi were discussing a difficult project which they had both worked on and which was nearing completion. She was the Project Manager. He told her that she would be the subject of much praise for bringing the project to a successful completion. According to the plaintiff he told Samar Niazi that she was going to have so much sunshine pumped up her skirt that she would not be able to sit down. He explained this to be a colloquialism from a 1970s movie. It means to praise someone or give someone a lot of credit.

There is no reference in the judgment a to what movie he was referring to.

Now you would think that it would be important for the Court to determine whether in fact the comments were of a sexual nature.

Apparently that was not relevant.

40      The focus of this trial was about whether the comments made by the plaintiff to Samar Niazi amounted to sexual harassment. There was much evidence and discussion about whether the comments made by the plaintiff to Samar Niazi were sexual in nature or were harassing generally. Because of the view I take of the evidence, it is unnecessary to categorize the comments made by the plaintiff. It is unclear to me whether the defendant concluded that the plaintiff’s conduct amounted to sexual harassment. Regardless of how the plaintiff’s comments were categorized, they did not justify summary termination of the plaintiff’s employment.

This is where the case gets weird.

The Defendant conducted an internal investigation and concluded that inappropriate comments had been made to some degree.

Rather than fire the Plaintiff , the Defendant told the Plaintiff that if he underwent some sort of training and provided a direct apology to Ms Niazi , that would end the matter.

The Plaintiff then hired a lawyer who wrote to the Defendant and said that his client would take the training but that he  refused to make an apology which admitted any wrongdoing on his part.

The Defendant then fired the Plaintiff for cause for the following reasons:

a) making inappropriate and vexatious comments to a coworker;

b) the failure to show remorse; and,

c) wilful insubordination based on a refusal to accept and comply with corrective action determined to be appropriate by the defendant.
Apparently the Judge was quite upset at the Defendants decision to fire the Plaintiff after the lawyer’s letter said that his client would not provide a letter of apology.
44      The termination of the plaintiff’s employment followed quickly after receipt of a letter from the plaintiff’s lawyer. Rather than responding to counsel’s letter and attempting to negotiate the wording of a letter of apology acceptable to both plaintiff and the defendant, the defendant chose to end the plaintiff’s 20 years of employment. I conclude that an important factor in the defendant’s decision to terminate the plaintiff’s employment was that he had consulted a lawyer. This is not a justifiable reason to dismiss an employee of long service.
With all due respect, it would seem likely that the reason for the termination coming shortly after receiving a lawyers’ letter was not because he had the audacity to seek legal advice, but rather of the position conveyed in the letter that the Plaintiff would not apologize because he felt that he had done nothing wrong.
It is very difficult to feel confident that someone will change their behavoir in the future if they truly believe that they have done nothing wrong in the past.
That presumably is what the Defendant referred to in the termination letter when they cited lack of remorse as a ground for termination.
This is how the Judge sized up what the Defendant should have done:
45      In my view, the defendant was faced with a situation in which two employees were in a difficult working relationship. Samar Niazi had made it clear that she would not accept a token apology. She did not want the plaintiff to be given “a slap on the wrist”. The defendant was entitled to make a decision about which of two employees it wished to continue to employ. The defendant was entitled to terminate the plaintiff’s employment on the basis of an incompatible working relationship with Samar Niazi. What the defendant was not entitled to do was create a situation in which it could rely on just cause to terminate the plaintiff’s employment.
In other words, the Defendant could have also chosen to terminate Ms Niazi and simply provide reasonable notice?
I think if the Defendant solved the “problem ” by firing the victim, it would have faced numerous legal actions with huge monetary consequences.

 

Doing Zilch to Look for New Job is NOT a Failure to Mitigate :

In Hucsko v A.O.Smith Enterprises ( 2020 ONSC 1346) Taylor J had a situation where a 60 year old Senior Product Designer was awarded 20 months notice.

When it came to mitigation efforts,  the Judge said:

51.     I have no difficulty in concluding that the plaintiff failed to make reasonable efforts to find alternate employment. He made no effort to find another job. He decided, without even testing the job market that he would be unable to secure alternate employment because of his age and the circumstances of his dismissal. Susan Hucsko testified that her husband did not look for another job because he had a passion for sailing since he was a child. He had always wanted to build a sailboat. She said he enrolled in the program at Westlawn so that he could build a sailboat for them to enjoy in retirement.

One would normally think that this would result in some reduction of the notice period .

But no. The Judge went on to say :

However, I also find that the defendant has not discharged its burden of proving that if reasonable job search efforts had been made, the plaintiff would have found another job at a similar level of remuneration as he was receiving at the time of the termination of employment.
52      The defendant provided no assistance to the plaintiff to find alternate employment. Outplacement counselling was not offered. No reference letter was offered. As I have already indicated, there was no evidence that alternate employment was available in the plaintiff’s field within a reasonable distance of the plaintiff’s residence.
53      I decline to reduce the period of notice for a failure to mitigate.
It should be noted that the Employer fired this guy in part because of four serious incidents of verbal sexual harassment. However they are criticized for not giving him a reference letter.
Clearly the Employer should have led some evidence that there were job opportunities that might have been available for him if the Plaintiff even bothered to pretend to look for a job.

 

Unjust Dismissal of Husband Leads to Wife Early RTW from Maternity Leave = $15,000 in Aggravated Damages :

In a CLC unjust dismissal case ” Nieminen v FedEx” ( # YM2707-11440 or 2019 CarswellNat 3722) Adjudicator Skratek had a situation where a courier was accused of stealing money from a delivery. The Adjudicator found that he was not guilty of the theft and that the that FedEx had conducted a unfair investigation. He was reinstated with full back pay and full legal fees.

His spouse was on maternity leave at the time of the termination, and as a result of her husband’s termination, she was required to return to her job much earlier than she planned . This caused great disruption to the family, including the mother’s breast feeding plans.

This is what the adjudicator said on this issue :

78      Consideration was also given to the fact that the flawed and inherently unfair investigation that led to Mr. Nieminen’s termination had the direct result of forcing his wife to prematurely end her maternity leave. The Respondent claims that the decision was a choice made by Mr. Nieminen and his wife and that their decision was of no consequence other than to serve as a reason to consider the time that Mr. Nieminen spent on parental leave as a period in which he did not fulfill his obligation to mitigate his lost wages. That claim is without merit. Mr. Nieminen and his wife were suddenly placed in a very difficult position. He had lost his job. His wife was on maternity leave bringing home considerably less income than she would have received from her regular job. The family was disrupted and had to make decisions quickly to ensure that they could financially survive the disruption. The decision to have his wife end her maternity leave several months early disrupted the planned care for their newborn. As he testified, his wife had to return home daily to breastfeed their newborn. He further testified that his wife’s mother had recently passed away compounding the stress on his wife. There were also discussions regarding whether or not they should keep their house. Money was borrowed from his parents to help with child care. The efforts of Mr. Nieminen and his family must not be dismissed as being a choice that they made. It was a choice that was forced on them by the unjust dismissal that resulted from a flawed and unfair investigation into the alleged misconduct by Mr. Nieminen.

My Comment:

Note that this issue arose in part because the Employer said that the Plaintiff’s  decision to stay home with the newborn baby was a failure to mitigate his damages.

Boy did that argument backfire!

As tempting as it may well be to make every legal argument possible ( because that is what they taught us in law school ) this case shows that what we learnt in school often does not play out well in the real world. Judgement and discretion are also attributes that matter.

 

 

Failure to Mitigate Requires Employer to Prove that Better Efforts Would Have Led to a Job:

In Virk v Satnam Educational Society of BC (2020 BCSC 149) Norell J. found that a Vice Principal in Vancouver who only applied for 4 teaching jobs after termination had inadequately mitigated..

However, the judge refused to reduce the 12 month notice period because the employer led no evidence ” as to the number and types of teaching jobs available in 2009/2010 and when they we’re available ” . The Judge held that without this evidence the defendant could not prove that even if the Plaintiff had look harder, this would have likely resulted in him finding a job within the notice period.

My Comment:

With the advent of Internet job searches, it is now quite easy for employers to present this type of evidence to the Court. Smart defence counsel send this information on a regular basis to Plaintiff counsel on a with prejudice basis. If the Plaintiff uses the information and gets a job earlier, then the damages are reduced. If the Plaintiff ignores the leads, the Defendant has vastly improved their chances of getting a failure to mitigate reduction. However, if the Plaintiff applies for every lead and still does not get a job, this becomes evidence of the unavailability of comparable employment, a key Bardal Factor in assessing what the reasonable notice should be. After all, if the purpose of reasonable notice is for the Court to ascertain how long it should take a reasonable person to find a job, what better evidence that it took this Plaintiff, acting reasonably, X months to get a comparable job.

Legal Issues in the Post Corona Era:

Right now employment lawyers are talking , debating and especially ZOOMING about various employment issues that have arisen since this pandemic started.

I want to look down the road a few months when hopefully the pandemic will be  on the decline. I think that the following legal issues and trends  will arise and will need to be resolved :

  1. The longer these temporary layoffs continue the more employees will seriously look at the temporary  layoff = termination argument.
  2. After 13 weeks, many employers will not have recalled employees and either don’t have benefits they could continue or fail to do so, thereby triggering the deemed termination provisions of the ESA.
  3. Even if they are recalled and return to work, could the employee  still sue for the lost wages on the basis that there was no express or implied term of employment regarding layoff ?
  4. Will the frustration defence apply to only those business that were forced to close due to Government edict?
  5. Would class actions apply for both termination cases and unpaid wages during layoff cases?
  6. Does a refusal to accept a recall bar the employee from still suing for the lost wages up until the time of the recall?
  7. If an employee accepted a recall but still sued for lost wages, could they be terminated for just cause ?
  8. Is there any realistic duty to mitigate during the pandemic or do Plaintiffs get a mitigation holiday ?
  9. We all know that EI is not a deduction from wrongful dismissal damages ( because the employee ultimately has to repay their EI ), but what about the new Canadian Emergency Relief Benefit ? Each worker could receive up to about $7,500. I have not looked at the CERB legislation, but assuming it has no offset provision like EI, could the employer in a wrongful dismissal case claim a setoff for the CERB amount ?
  10. Will notice periods go up because it will more difficult to find a job or will they go down because employers are seen to be truly suffering and need a break?

I invite from you both your comments as well as other topics that you think will arise .

Stay Healthy

I Did My First ZOOM Mediation. It Was Great!

 On Friday I did a mediation entirely on ZOOM video technology that took 8 hours, involved 4 parties and 4 lawyers.
Yes it settled.
It was in some ways better than a face to face case. I could switch rooms instantly. I could see everybody in the room at the same time. One person cannot talk over another. No one had to catch a plane or pick up the kids so we had no time limits. Everybody made their own lunch . By using breakout rooms , it was just like a face to face mediation. When I needed to talk to the lawyers without clients, we simply moved to another room. Drafting the settlement documents was easy. One lawyer sent the other a draft by email. Clients could view the document at the same time.
I am convinced that there is no good reason to adjourn mediations until this pandemic is over. It can be business as usual .
Being a ZOOM participant is so simple . All you do is download ZOOM to your browser or your phone by using the ZOOM app. Hosting a ZOOM meeting is more complicated, but that is the sole responsibility of the mediator, so you don’t have to worry about that part.
I am more than willing to talk to any employment or labour lawyer about using ZOOM for mediations or arbitrations. Call me on my cell 1 416 999 3785 or email me at barryfisher!rogers.com.

Decision Tree Analysis of a Wrongful Dismissal Action:

 

Decision Tree Analysis is simply a process of analyzing an issue on the basis of a step by step basis while applying the principles of probability.

In its simplest terms think of a coin flip. Every time you flip a coin, there is a 50% probability that it will come up heads.

But if you are trying to predict the probability of two consecutive coin flips coming up heads, then you multiply the two probabilities. Thus 50% X 50% = 25%. In other words, there is a 25% chance of a coin flip coming up heads two times in a row or a 75% chance that that will not happen.

Many lawsuits can be analyzed using this same methodology.

Imagine the following fact situation:

The plaintiff was fired, and the employer is alleging just cause.

The Plaintiff’s lawyer believes that she has a good chance of beating the just cause issue and puts her chances at 75%.

Of course, that means that there is a 25% chance that just cause is upheld and the case is therefore worth zilch.

Assuming that just cause is upheld, an additional issue is that there is an employment contract which if enforceable, would limit the plaintiff’s recovery to $10,000. Given the uncertainty of the law on this issue, the Plaintiff’s lawyer thinks that her chances of defeating the contract are only 50%.

If she can both beat the just cause argument and get around the contract, the next issue is whether or not the $25,000 bonus will be included in the award. If the bonus is included, the case is worth $100,000. If the bonus is excluded, the case is only worth $75,000. Again, given the uncertainty in the law, the lawyer estimates a 50 % risk factor to this issue.

So, what are the chances that the Plaintiff will recover $100,000 at trial?

Step One : $100,000 X 75% = $75,000 ( Just cause risk )

Step Two: $75,000 X 50% = $37,500 (Termination clause risk)

Step Three: $37,500 X 50% = $18,750 (Bonus inclusion risk)

Another way is to simply multiply the probabilities as follows:

75% X 50% X 50% X $100,000 = $18,750

Thus, the chances of winning $100,000 are only  18.75%.

However, there are also the following probabilities to consider:

  1. There is a 25% chance of getting nothing if just cause is upheld.
  2. There is a 37.5 % chance of getting only $10,000 if just cause is not upheld but the termination provision is found to be valid.
  3. The probability that the outcome will be $75,000 is the same as it is for $100,000

Thus :

The chances of getting nothing                25%

The chances of getting $10,0000               37.5%

The chances of getting $75,000                 18.75%

The chances of getting $100,000               18.75%

 

Total                                                               100%

 

Now assume that the mediation hits an impasse and the defendant’s last offer is $66,000. The plaintiff’s last offer is $82,500.

Assume that the plaintiff’s lawyer is on a contingency fee and that the plaintiff does not have adverse cost insurance. Also assume that the plaintiff owns a house with plenty of equity.

Note that neither of the offers actually reflect a possible court outcome. This is good because it shows that each side is already evaluating risk, however they just disagree on how to do it.

As a mediator I would have this discussion with the plaintiff.

“Well, we have certainly come a long way today, considering that before we started the mediation, the employer had offered you only $5,000, which is what we call in the trade “nuisance money”.  Whether you like their number or not, $66,000 is not nuisance money.

Your ex-employer has said that the most they will pay you today is $66,000.

We know that if you are successful on all counts you will get $100,000 and if you don’t succeed on all counts, you could get either $75,000 or $10,000 or zilch.

At $66,000 you are $34,000 short of your objective. But not really. First of all, because of your contingency fee arrangement, that $33,000 difference is really only $24,750 because of the 25% fee arrangement. Moreover, that $24,750 is subject to tax withholding of 30%, which means the real difference to you of not getting an extra $33,000 is only $17,325.

Let’s take a closer look at the 25% nightmare scenario, in which you get zilch. Now, I know that with that outcome you will not owe your own lawyer anything. But I also know that your lawyer has explained to you that if you lose, the Court will in all likelihood order you to pay part of the costs of your former employer. She has told you that this would likely be around $50,000. As you have a house with real equity, your ex-employer could ultimately collect the costs award.

So here we have it. You a decent chance of getting $17,325 more money in your pocket if you win in Court. But if you lose in Court and get zilch, you have lost two amounts, the $50,000 you have to pay to the defendant and the $66,000 you could have had if you accepted their offer.

In other words, if you go to trial and lose completely (of which there is a 25% chance) you will be out $116,000.

Next, what are the consequences of losing $116,000 to you? In many cases, it would involve losing your home or a large portion of your retirement fund.

Let’s assume that odds of you getting $17,325 more in your pocket are the same as you losing $116,000.

In Vegas, only a high-risk poker player would take that bet.

So, what are my instructions?”

 

Using the same data, this is the conversation I would have the owner of the defendant.

“Well, we have certainly come a long way today, considering that before we started the mediation, the employee had offered to settle $250,000, which is what we call in the trade “crazy money”.  Whether you like their number or not, $82,500 is not crazy money.

I fully appreciate that this settlement is real money to you as you own this company. I appreciate that you got to where you are today because in part you are a good businessman.

Let’s analyze this issue the same way you would analyze any other business problem, because that is exactly what this litigation is.

As this case stands, your lawyer has said that largely because of the issue of just cause, this trial will probably take 5 days. Since we are at the beginning of a long litigation process, your lawyer has told you that to take this case to the end of a 5-day trial will cost you around $115,000.

Now I know that if you were to win on the issue of just cause (which we agree you have a 75% chance of not achieving) then the Court would probably award you about 60% of your legal fees or $69,600. That means, that assuming you could collect that from the plaintiff, the cost of winning would be around $46,400.

Let’s look at the cost of losing. Lets even assume that it is not a complete loss and you win on the issue of excluding the bonus. That means you would pay as follows:

 

Judgement                                                                  $75,000

 

Costs to your lawyer                                                $115,000

 

Partial costs to plaintiff’s lawyer                           $69,600

 

Total:                                                              $259,600

 

Even if you only lost on the issue of just cause and won everything else and the Court awarded the Plaintiff no costs, this would still cost you:

 

Judgement                                                                    $10,000

 

Costs to your lawyer                                                $115,000

 

Total                                                                            $125,000

 

 

So, a complete win will cost you                           $46,400

 

Losing partly will cost you                                     $125,000 to $259,600

 

Settling today could cost you at most                     $82,500

 

The only way you can do better than $82,500 is to win outright, which your lawyer has told you has a 75% chance of not happening.

What are my instructions?”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court Refuses to Dispense with Mandatory Mediation :

In Villa v Association of Professional Engineers of Ontario ( 2020 CarswellOnt 1042) Master Jolley had this to say about the Plaintiff’s request to dispense with mandatory mediation .

D. Motion to Dispense with Mandatory Mediation

45 The plaintiff wishes to avoid the cost of mediation as, in his view, the defendant is committed to its position and mediation will not be successful. It is these very situations where mediation often proves to be the most helpful. With the history of this matter and the slow progress being made by the parties left to their own devices, I find that mediation may assist the parties in framing the issues and discussing settlement. This request is denied.

The plaintiff was self-represented.

How Not to Conduct A Wrongful Dismissal Trial :

In Gibb v Pallieter Regional School Division # 26 ( 2020 ABQB 113) Justice Kubik dismissed the plaintiff’s constructive dismissal and harassment claim.

1. The trial was 7 years after the event.

2. The trial took 11 days.

3. The Plaintiff amended her claim at trial to increase her  claim  for punitive and aggravated damages to $700,000.

4. The Plaintiff found alternative employment almost immediately after she left this employer.

5. If the Plaintiff had been found to be constructively dismissed, her employment contract would have required the employer to pay her $35,750