Author: barryfisher

In Complex Services v Milloy ( 2018 ONSC 3590) Justice Conway, on appeal, had the following situation:

In Holm v Agat Laboratories ( 2018 ABQB 415 ) Justice Horner had a situation where he found that the plaintiff had been constructively dismissed due to a demotion. He awarded 4 months notice to a 1 year middle manager making $100k

In discussing the credibility of the defence witness, a Mr Dasanti, the judge found that he was not credible.

However the Judge on went to say as follows:

61      Desanti gave evidence that the revenue from the Air Services Division represented approximately 1% of Agat’s overall gross revenue. Even so, Desanti attended court every day of the five-day trial. I view this level of attention to this matter as disproportionate to its seriousness and further evidence of Agat’s hard ball and intimidating tactics.

The judge went on and awarded $20,000 for aggravated damages.

As I understood the concept of an open courtroom in Canada, the public is free to attend any trial they want ( unless an exclusion order is made) to see our justice system in action. In this case it was a participant in the trial who exercised his contitutional right to attend a public trial.

In return this judge held that fact against the defendant.

Does that seem right?

In Ruston v Keddo Mfg (2011) Ltd ( 2018 ONSC 2919 ) Justice Chiappetta awarded 19 months notice to 54 year old President making $289,000/ year with 11 years service.

However the interesting part of this case is the extraordinary damages. The judge set out in detail why she awarded these damages :

1. During the termination meeting the employer told the plaintiff that if he sued the defendant for wrongful dismissal , they would counterclaim against him. He sued. They counterclaimed for $1.7 million dollars alleging fraud.
2. The Defendant admitted threatening another terminated employee in the same fashion.
3. The Defendant threatened him at the termination meeting by reminding him how expensive lawyers can be. In the course of the litigation the Defendant first told the Court that they would have 25 witnesses, then just before the trial 5 witnesses, then they only called 3.
4. The Defendant did not allege cause at the time of termination, and did so for the first time in the defence and counterclaim.
5. The Defendant called no evidence regarding the allegations of fraud, performance, personal attacks or improper disbursement of company funds for his personal benefit.
6. The Defendant alleged damages in the counterclaim of $1.7 millions but after their expert testified, the Defendant dropped their claim to $1.00. The defendant had no intention of proving damages and just did this to intimidate the plaintiff.

The total judgment, excluding costs came to approximately $600,000.. The trial lasted 11 days. I suspect that the Plaintiff will be awarded costs on a substantial indemnity basis. Each side had two lawyers at trial. Total cost to the Defendant must be north of a million bucks after they pay their own lawyers.

Note . This case is not yet reported but you can get a copy from Plaintiff’s counsel, Andrew Monkhouse of Monkhouse Law. It should be online in a few days.

In Pasche v MDE Enterprises ( 2018 BCSC 701) Justice MacDonald awarded only 13 months notice to a 67 year old estimator with 18 years service .

Having first determined that the plaintiff was a dependant contractor and not an independent contractor, in deciding how much notice of termination he was entitled to the Judge said the following :

In Li v Bank of Montreal ( 2018 CarswellNat 1229 ) Adjudicator Webster had a situation where a dismissed employee signed a release after receiving legal advice, got the money ( and probably spent it) but afterwards initiated a Section 240 Unjust Dismissal complaint under the Canada labour Code.

Citing various Federal Court decisions , the Adjudicator said that she had no jurisdiction to dismiss the complaint simply because the employee signed a release before she had filed her complaint.

In her final paragraph she said :

The Agreement and Release signed by the parties in April of 2017 is not a bar to the hearing of the Complaint of unjust dismissal, but may be an important consideration with respect to an appropriate remedy if the dismissal is found to be unjust.

How to avoid this outcome?

As there is very short 90 day window for a complaint to be filed, if the release was signed after the 90 days then the employee would be barred from even filing a complaint.

I suppose the prudent federal employer will have to first wait 90 days, then make inquiries if a complaint has been filed and only then settle with the employee.

Sounds stupid , no? That the law for ya.

In Gray v Promark Electronics ( 2018 ONSC 2298) Master Weibe had a situation where the dispute centred around the basis for how the employer could alter the Plaintiff’s commission plan.

The Plaintiff said that it was based only on his sales. The Defendant said that it had an unfettered discretion to change the plan at any time and had done so in the past on 4 occasions based upon the company’s profitability and the diversification of the sales portfolio.

The Defendant produced the relevant financial statements but little more. On discovery the President was asked for more detailed financial information and refused.

At the motion to compel undertakings and produce the documents requested, the defendant did not deny the relevance of the documents being requested but said the request was not proportionate and a fishing expedition.

Well, the Plaintiff gets to go fishing. The Master found that as there was a real dispute as to why and how the employer had changed the Plaintiff’s commission in the past, that he was entitled to receive broad disclosure .

The lesson here is if you allege a valid business reason for exercising a discretion, be prepared to back it up with extensive disclosure. For Plaintiffs, requesting extensive financial disclosure on relevant items may be a useful tactic to encourage the Defendant to settle as they do not want to go through this extensive and expensive exercise and may dread that this information may go public one day.

In Bergeron v Movati Athletic ( Group ) Inc. ( 2018 ONSC 885) Justice O’Bonswain found that the following termination clause was not enforceable :

Movati Athletic Inc. may terminate your employment without cause at any time during the term of your employment upon providing you with notice or pay in lieu of notice, and severance, if applicable, pursuant to the Employment Standards Act, 2000 and subject to the continuation of your group benefits coverage, if applicable, for the minimum period required by the Employment Standards Act, 2000, as amended from time to time.

The judge’s main criticism was the clause does not make clear that the common law right of reasonable notice was clearly excluded.

Then for some reason , the Judge redrafted the clause and said if it had been like this, then it would have been upheld.

Movati Athletic Inc. may terminate your employment without cause at any time during the term of your employment upon providing you with notice or pay in lieu of notice, and severance, if applicable, only pursuant to the Employment Standards Act, 2000 and subject to the continuation of your group benefits coverage, if applicable, only for the minimum period required by the Employment Standards Act, 2000, as amended from time to time.

I do not believe that this was a good idea, for the following reasons:

First of all I can spot at least these problems with the new clause drafted by the judge :

1. The ESA standard for excluding termination pay and severance pay is is not just cause but rather the higher standard of wilful misconduct.
2. The reference to ” only for the minimum period required by the Employment Standards Act” seems to only apply to the benefit extension period, not termination and severance pay. This is at least ambiguous.
3. The extension of benefits” subject to the continuation of your group benefits coverage” would infer that if the insurance provider has a clause which precludes for coverage immediately upon the termination of employment ( which is common ) then this clause would deny coverage for the termination period, which is a violation of the ESA.

Second, this Judge is saying to  employers that if you use this clause you will win. This may limit the degree by which other judges view future similar clauses as it looks as if this one has been sanctified by the Courts.

Third, it is undoubtably the role of the Courts to rule on the legality of existing contract language and to give guidance for future drafters. However I think that the Courts go too far when they assume the role of drafters of contract clauses. We all know that employers draft employment contracts, especially ESA limiting agreements. Why should the role of the Courts be to actually draft contract clauses  that encourage employers to limit employee termination entitlements to the statutory minimums? Why not instead encourage employers to draft clauses that mimic the common law entitlement?

Court are supposed to be the arbiters in employment law disputes, not advocates for one side.Employers in Ontario have access to excellent management counsel who know how to draft fair and binding employment agreements. Drafting is their job, not the Courts. If they get it right they win. If they get it wrong they lose.

Sometimes it takes the Court of Appeal to remind trial judges that some areas of wrongful dismissal law are set and not to be changed by them.

In Singer v Nordstrong Equipment ( 2018 ONCA 364 Justice Feldman again explained two basic principles of employment law in Ontario:

1) The correct way of valuing lost benefits during the notice period is the cost of replacing the benefits, or more exactly the cost to the employer in providing those benefits, The Plaintiff need not prove out of pocket costs.

2) In assessing the entitlement to bonus over the notice period, the Court first determines if the bonus was an integral part of the Plaintiff’s compensation package . and if the answer is ” yes” then ” if ” there is nothing in the bonus plan that negates entitlement to a bonus during the a period of reasonable notice , damages for wrongful dismissal include compensation  for loss of the bonus ”  In determining the quantum of the bonus the Court took the two year average of past bonus payouts.

In Chambers v Global Traffic Technologies Canada Inc ( 20168 ONSC 2000)  Glustein J.  found that reasonable notice for a 57 year old General Manager making $208,000  who  had 2 years + 6 months service was 9 months.

Some of the cases submitted by the employer consisted of finding of reasonable notice as an alternative finding, in that the judge found that there was cause or an enforceable contract. The judge rejected the argument of plaintiff’s counsel that these cases should be ignored or discounted.

Regarding the bonus issue the Judge commented ” Bonuses which were earned during the period prior to termination or would have been earned in the reasonable notice period are payable upon termination, even if payment of the bonus would have been outside the notice period”

Of note is that the judge distinguished, properly in my opinion, between earning a bonus and when a bonus is payable. The argument is that once a bonus is earned it becomes a wage under the ESA and thus can never be forfeited, no matter what the contractual language says. The analogy is that if you had a salary of $500/ week and were paid on the 1st and 15th of the month, but were terminated with just cause ( or quit) on the 14th, could an employer deny you your wages that you earned from the 1st to the 14th because your employment contract said that you had to be in the employment of the employer on the payday to be paid your wages?

Of course the answer would be NO.

Spoiler Alert: Counsel for the plaintiff was my eldest son , Matthew Fisher.