Author: barryfisher

In Davies v Marks Supply ( no Canli listing yet ) Associate Justice Brown, in a case conference to determine whether a mediation would take place in person or on ZOOM, had this to say about the new provincial Guidelines To Determine Mode of Proceeding that came into force on February 1, 2024.

[6] Contrary to the defendants’ submission, the provincial Guidelines To Determine Mode of Proceeding in Civil Matters no longer provide that discoveries and mediation are presumptively in person. The Guidelines were revised effective February 1, 2024 to remove any presumption for out-of-court proceedings.

A.J. Brown then determined that because the Plaintiff resided in New Brunswick both the discoveries and the mediation would take place virtually.

My Comments:

The previous Guidelines made mediations presumptively to be in person and only a Court could order otherwise. This led to the situation where one party could effectively force the other party into an in person mediation because the delay and cost of going to Court to try to overcome the presumption was neither cost effective nor time effective.

Now that we have no such presumption, what happens when the parties cannot agree? It looks like the parties would have to convene a Case Conference before an Associate Justice to determine the matter.

In my opinion this is a waste of money, time and scarce judicial resources.

I have two suggestions :

1. Make virtual mediation the presumption. Over 95% of the mediations that I and other employment law mediators conduct are virtual. This is the overwhelming client preference.

OR

2. Empower the meditator to make the decision. Mediators already largely determine the manner in which a mediation is conducted so why not give them this power. Moreover, by using their mediation skills, I suspect in most cases they can work out a mediated solution to this issue.

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

If you would like to book a mediation or an arbitration, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

In Kozar v The Canadian National Railway  Company ( 2024 MBKB ) Justice Rempel heard a summary judgement motion regarding a 61 year old Senior Material Supervisor with 34 years service who was terminated for sexual harassment .

CNR relied completely on an investigation report done by a third party, who did not testify at the motion. CNR did not call any witness who actually made the termination decision. Moreover the Investigator made negative  findings about the Plaintiff’s credibility. CNR could not even show that the decision maker had even read the investigation report.

The judge found that the investigation report was hearsay evidence and the failure to call the decision maker meant that CNR had not proven just cause nor did they prove that alternative discipline measures short of dismissal  were even considered.

The plaintiff was awarded 24 months notice .

My Comments :

This case illustrates the misconception about investigations of this nature.

Investigators are hired by employers to interview witnesses, make findings of fact and sometimes to recommend action. This provides management with a firm factual basis upon  which to make its  decision .

However, the report is NOT evidence at a trial or an adjudication as to the truth of the findings.

It is NOT a substitute for calling actual witnesses to the relevant events .

It IS complete hearsay and frankly should not be admitted at all, except to show that management did its homework and did not make a rash decision .

But the job of a judge or an arbitrator is not to determine whether management made a reasonable decision, rather it is to determine what actually happened. Therefore the opinion of the investigator is completely and utterly irrelevant .

I had a case a few years back in which I was the arbitrator involving the discharge of a Correctional Officer for the use of excessive force.

The Employer had a done a thorough and impressive investigation, having interviewed  numerous witnesses, including a prisoner who was an eye witness. The Superintendent, in reliance on the report, dismissed the employee. Based on the information in the report, I would have done the same.

However, by the time of the arbitration , the Employer was unable to call many of those witnesses, including the eye witness. I therefore found, on the evidence before me, that the Employer had not proven just cause.

In that case, the Union did not allege that the Employer breached any due process  obligation nor did it allege any aggravated or punitive damages.

Investigations have an important place in the workplace, but they are not a substitute for proving every element of just cause at a trial or an arbitration with first party evidence.

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

If you would like to book a mediation or arbitration, go to www.barryfisher.ca

In Leason v ADAMANDA In o/a Dairy Queen and Grill Huntsville,  2023 HRTO 1652 ( Adjudicator Daud ) the applicant raised a reprisal complaint against her employer.

The manager of the store was the applicant’s first cousin.

The problem seemed to have arisen when the manager’s sister ( not an employee at the time but also the applicants’ cousin) uninvited the applicant to her birthday party, which greatly upset  the applicant.

Thereafter the three cousins ( including the applicant and her manager) engaged in some heated emails and verbal exchanges about this apparently grave injustice done to the applicant.

Query: If you are disinvited to a birthday, do you still have to give a gift?

In denying the reprisal complaint, this is what the adjudicator said :

[66] Michelle Turner also testified that any foul language used between her, and the applicant was only because they were cousins and friendly with each other. The testimony at the hearing confirmed that these three persons (applicant and her two cousins) were not communicating as fellow employees but rather as cousins. The frankness and feud in these communications can only be labelled as bickering among family members and cannot be considered as a poisoned work environment due to the fact that the text messages were not related to work, they and were exchanged outside of work, and the primary reason for this exchange of messages was because the applicant’s cousin was unable to attend the party and the applicant was uninvited from her cousin’s birthday party.

Comment:

This case illustrates another good reason why not to work with family in a business.

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

For mediation dates, go to www.barryfisher.ca

For the Wrongful Dismissal Database, go to www.wddonline.ca

In  Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.

Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .

In calculating damages the Court did two things which I thought were odd .

1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.

Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).

2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.

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

For my mediation dates, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

In Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII) Justice Burt found that a policy requiring the Covid Vaccine for a restaurant server to be reasonable.

The Plaintiff ( who refused to get vaccinated ) was put on a leave of absence without pay until she either got vaccinated or until the Defendant lifted the vaccine requirement.

The Plaintiff claimed that she had been constructively dismissed. The Court found that she had resigned as soon as she claimed that she had been constructively dismissed.

This is what the Court said :

[68]           In sum, imposing the Policy, including an unpaid leave of absence as a consequence of the Plaintiff choosing not to be vaccinated, did not amount to constructive dismissal nor a breach of the Contract on the part of the Defendant. The evidence as a whole has established the Defendant acted reasonably, lawfully and with justification in enacting the Policy that allowed the Plaintiff to make a choice as to whether she would be vaccinated.

[79]           The law, applied to the facts of this case, supports the conclusion that the Policy was a reasonable, justified and lawful response by the Defendant to the extraordinary circumstances of the Pandemic in 2021. Placing the Plaintiff on unpaid leave balanced the Defendant’s business interests, statutory and contractual obligations, the rights of its employees to a safe work environment, and the safety concerns of its customers, while ensuring that individuals like the Plaintiff could refuse to get vaccinated without termination of employment and instead, choose an unpaid leave of absence.  

My Comments ;

Many cases have already upheld these mandatory vaccine policies.

What is interesting about this case is that it seems to endorse an unpaid LOA, but it may not uphold a termination for just cause.

The highlighted comment about balancing the two interests seems to suggest that had the Plaintiff been terminated instead of being put on a LOA that the outcome may have been different .

However, this begs the question as to how long does an employer have to wait to decide if the person on the LOA needs to be replaced ? It may well be easy to temporarily replace a server, like this Plaintiff, but what if the employee held  a critical position within the company, like the Comptroller? It would be near impossible for an employer to hire a temporary Comptroller that would be subject to termination on a days notice if the Comptroller on  LOA changed their mind and got vaccinated. What is the temporary replacement cost more per diem than the person on layoff? What if the refusing employee declared that they will NEVER get vaccinated ?

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

For mediation dates go to www.barryfisher.ca

For access to the Wrongful Dismissal Database go to www.wddonline.ca

In Gee v Corus Entertainment ( 2023 CIRB 1090) Adjudicator Rogers ruled that an regular guest on air contributor who appeared twice a week was not an employee and thus not covered by the Unjust Dismissal section of the Canada Labour Code.

The CLC also covers Dependant Contractors, however this is what the Adjudicator said on this point :

[22] Turning to the question of whether the complainant meets the test for a dependent contractor, the Board finds that the undisputed facts establish that she was not economically dependent on Corus. Rather, the uncontested facts are that she worked for various other media outlets throughout her tenure with the employer and that only 25 per cent of her income was from Corus.

This is well below the near-exclusivity threshold of at least 50 per cent as contemplated in the above-noted cases.

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

If you like to schedule a mediation go to www.barryfisher.ca

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