Author: barryfisher

In Betts v IBM ( 2015 CarswellOnt 12779) the employee went off on sick leave for depression. Despite repeated warnings and actions by the insurer and the defendant , the plaintiff did not follow the STD rules, failed to follow through on appeals and required medical reports and left the province he worked ( NB ) and moved to Ontario to live with his girlfriend. The Court found that he had abandoned his employment after 8 months of not being at work.

In Lederhouse v Vermilion Energy ( 2015 CarswellAlb 1102 ) the Court awarded the bonus over the notice period even when it was expressly discretionary as the ” the discretion must be similarly exercised reasonably , on the basis of objective criteria allowing for positive and negative contingencies ” . The plaintiff was awarded  a $49,906 payment, which was the average over the last 3 years.

The SCC  gave leave to the Plaintiff’s to appeal the Federal  Court of  Appeal in this ground breaking case regarding unjust dismissal under the Canada Labour Code.  In the lower Courts it was held that a dismissal without just cause   was not unjust if the proper severance was paid, which was contrary to decades of  Canada Labour Code adjudicator jurisprudence which held that only a dismissal for just cause could avoid the section’s remedies, including reinstatement. This decision will be of keen interest for all those in the employment law bar as the Federal Court decision has made this unjust dismissal legislation a  less useful remedy as in most cases the employee would be better off with a civil action for wrongful dismissal if the reinstatement option is not realistically available under the Code.

In Alsip v Top Rollshutteers Inc. the BC SC upheld the following language as constituting a fixed term contract:

” The position is full time and permanent. Your compensation will be as follows: A three year employment contract”.

The Employer argued that this meant a maximum of three years of employment and could be terminated sooner on reasonable notice. The  Plaintiff was  terminated after 1 year. The Court  awarded damages for the the remaining 2 years in the contract.

As the Employer had drafted the contract, the Court applied the legal doctrine that read any ambiguity against the author of the document.

Refusal to provide ex employee with LTD forms makes employer liable for LTD benefits : In Fernandes v Peel Educational ( 2014 CarswellOnt 15891) the employer refused to provide the plaintiff with LTD application forms until into the litigation. As this was after the termination period under the ESA , the insurer denied coverage. The Ct found that but for this action, the Plaintiff would have received LTD from the insurer, thus the employer was now liable for the LTD amount of $2k/month for up to 9 years.

$30,000 Wallace Award: In Turner v Nfld & Lab Legal Aid Commission (2014 NLTD (G) 156) the plaintiff, a 22 year staff lawyer was awarded 22 months notice and $30,000 Wallace damages for unfair treatment at time of termination consisting of an extremely nasty termination letter, failure to pay $40,000.00 in vacation pay, not allowing access to internal grievance procedure, failure to apply progressive discipline, treating him differently from other employees and management testifying before the Law Society. Plaintiff had medical evidence to support his claim . Termination occurred in 2003.