Author: barryfisher

In Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171, Justice Woolley sitting on an appeal, had to deal with an increasing common situation.

The plaintiff was laid off and was given no notice. The plaintiff hired a lawyer to send a demand letter claiming wrongful dismissal damages. The employer then turned around and offered the Plaintiff his job back but made no offer to pay him for the time off, which was 2.5 months.

This is what the judge said :

[63]        The trial judge correctly summarized the Supreme Court’s decision in Evans. The rest of his decision on the issue of mitigation involved a question of mixed fact and law, and is subject to review for palpable and overriding error.

[64]        The trial judge made no such error. An employee’s failure to accept an offer to return to employment, even in uncomfortable or unhappy circumstances, can constitute a failure to mitigate, as was the case in Evans. An employee is not, however, required to accept an offer of employment regardless of the circumstances: Fredrickson v Newtech Dental Laboratory Inc, 2015 BCCA 357; Oostlander v Cervus Equipment Corporation, 2022 ABQB 200.

[65]        Here, Northern Air did not provide Mr. Dunbar with notice. He had been out of work for two and a half months, half the notice period to which he was entitled, as found by the trial judge. Northern Air did not offer to make Mr. Dunbar whole. As such, had Mr. Dunbar returned to work at Northern Air he would have been in the awkward position of either giving up his legal claim for notice, or being engaged in legal proceedings with his employer. The trial judge did not make a palpable or overriding error in finding that a reasonable person would not accept an offer of employment in those circumstances.

My Comments:

This case reminds us that in order for an Evans v Teamsters type tactic to succeed the employer should offer full backpay to the employee or the refusing Plaintiff will probably have the right to refuse the offer.

Another common mistake of employers is to make the recall an offer intended to end the proposed litigation. If this is done then the Plaintiff can argue that as this was a settlement offer, it is inadmissible in Court as it is contrary to the settlement privilege rule.

Thus the recall letter should be “with prejudice” and the employee should be advised that they are not required to discontinue the lawsuit in order to return to work. They should further be advised that of they refuse the recall, the employer will claim that the plaintiff has failed to mitigate his damages from that date forward.

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

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

In. Erin McKenzie v Orkestra SCS Inc. ( 2023 Canli 13891 ( On LRB ) Roslyn McGilvery, Vice‑Chair, had an opportunity to comment on the following section of the Ontario Occupational Health & Safety Act:

Order for workplace harassment investigation

  55.3  (1)  An inspector may in writing order an employer to cause an investigation described in clause 32.0.7 (1) (a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.

In this case there was a complaint by the the CFO / General Counsel  that she was being harassed by the CEO. The Company hired an HR Consultant to conduct an investigation but the CFO objected saying that the HR Consultant had a conflict of interest. At the same time the CFO filed a complaint with the Ministry of Labour and a Ministry Inspector was appointed .

Before the Inspector could even start the investigation, the HR Consultant withdrew from the assignment. The Company thereafter appointed a lawyer to conduct the investigation.

The CFO felt that this lawyer investigator  had insufficient investigation experience so she refused to participate in the investigation and appealed to the OLRB to appoint a new investigator .

The OLRB refused to do so on a number of grounds :

1 .As the Employer points out, the Act does not require individuals who conduct workplace harassment investigations under the Act to have any particular qualifications.  Further, the Act does not necessarily mandate the use of third-party investigators.  In the Board’s experience, such investigations are often conducted by individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law. 

2. It is not clear to me that an allegation that an employer has failed to conduct an investigation that is “appropriate in the circumstances” in most cases can be made pre-emptively, as opposed to requiring the worker to let an investigation run its course and then, upon its conclusion, having the opportunity to raise concrete examples of what allegedly rendered the investigation inappropriate.  After all, the ultimate result of an investigation may be favourable to the worker who filed the complaint, notwithstanding the worker’s initial misgivings.

My Comments;

In this particular case it was the Complainant who sought an order requiring the Employer to hire “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”

But it can also be the target of the investigation ( the alleged harasser ) who can also make this application.

However it seems that it is highly problematic for anyone to contest the qualification of the investigator until the perhaps unqualified investigator completes the investigation and their report. Presumably whoever does not like the outcome of the report ( as there is generally at least one disappointed party) could then ask the Ministry of Labour to force the Employer to do the whole investigation a second time.

This seems to me to be a real bad idea.

First,  we should assess at the beginning of the process if the investigator is “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.” 

If this was a hearing before the OLRB and one of the parties felt that the Vice Chair had a conflict of interest ( in other words was not an impartial person ) that party would be required to make the application to recuse at the earliest possible time.

It would be absurd to say ” I will only complain about the conflict of interest if I  lose.”

This is like Trump saying ahead of the election that he will only accept the legitimacy of the vote if he wins.

Second, workplace investigations can be  extremely damaging to many workplaces,  not only to  the complainant and the target but also to co-workers.

These investigations can go on for months or years and be very costly in terms of money, time and morale.

To go through this  process twice would be unbearable.

Third, the new second investigator would presumably interview many of the same witnesses. What if there were differences between the two interview answers? Is the  new investigator permitted to rely on this differences in assessing the witness’s credibility? What if relevant witnesses are no longer available or refused to participate a second time?

Fourth, Section 53.3 speaks of. “knowledge, experience or qualifications” of the investigator. 

It does not deal with how the investigator actually handled a particular investigation. An investigator who was well qualified could still make an error in their investigation . Does this mean the Ministry of Labour Inspector and/ or the OLRB is to act as if they were conducting a judicial review of the investigation?

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

For my mediation date availability go to www.barryfisher.ca

In Greidanus v Inter Pipeline Limited, 2023 AHRC 31, Member Oshionbo of the Alberta Human Rights Tribunal had the following situation:

The Complainant applied for a safety sensitive job and was accepted subject to a pre-hire drug test.

He failed the test as it was shown that he had THC in his system.

The Company then revoked the offer of employment.

The Complainant then told the Company for the first time that he was taking medical cannabis for a PTSD condition.

The Tribunal ruled that since the employer had no knowledge of the Complainants’ disability BEFORE they retracted the offer of employment, the decision to retract the offer was not discriminatory.

The Tribunal also ruled that there was no duty to inquire nor to accommodate because there was no evidence of prima facie discrimination in the first place.

My Comments :

This case emphasizes that there must be evidence which shows the employer knew of or ought to have known of the disability in order to prove that an act of the employer was discriminatory.

However everybody knows that cannabis ( which is perfectly legal ) can be used for either valid medical purposes ( as it was in this case) or just to get stoned.

Therefore since the employer relied solely on the fact that the Complainant had THC in his system, should they not have a positive obligation to inquire of him why he was using cannabis to see if there was a valid medical reason ?

Is not asking a classic example of willful blindness?

For a copy of this case, email me at barry@barryfisher.ca

For my mediation availability go to www.barryfisher.ca

In Croke v VuPoint Systems ( 2023 ONSC 1234) Justice Pollak had a situation where the Plaintiff worked as an installer for the defendant whose only client was Bell. Bell imposed a rule on all of its contractors that anybody working on Bell matters must be vaccinated. The Defendant therefore adopted its own mandatory vaccine policy which said that if anyone refused they would not be assigned any work .

The Plaintiff refused to have the vaccine. He was then terminated .

The Court determined that the employment agreement had been frustrated because :

1) None of the parties at the time the employment relationship was formed in 2014 could reasonably have anticipated the COVID epidemic and the imposition of a vaccine policy by their only client.

2) The requirement of mandatory vaccination was brought on by a third party, Bell. and as such was an unforeseen intervening event.

3) As result of the policy and the plaintiff’s decision, he was no longer capable of performing the essential duties of his job

The result of this finding was that the employee was not entitled to common law reasonable notice.

My Comments:

One may ask how this could be frustration when the Plaintiff could have avoided this result by simply taking the vaccine ?

Justice Pollack found that this was like the case of an employee who was incapable of performing their job due to either a lack of security clearance or a loss of a professional license.

She said as follows:

” The fact that the Plaintiff could have chosen to be vaccinated does not mean that he was in default as the circumstance which caused the frustration was the result of a decision by Bell, not the plaintiff or the Defendant . “

I disagree.

Unlike those loss of ability to work cases where the restriction is imposed by a third party over which the employee has no control, in this case the Plaintiff made himself unable to work by refusing to be be vaccinated.

In any event, the outcome is the same as frustration of contract means the employee is not entitled to either statutory or common law notice.

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

For my mediation availability go to www.barryfisher.ca

In Almseideen v. McKesson Canada, 2023 HRTO 255 , Adjudicator Cherniak had a situation where an applicant had filed a HRTO complaint claiming that he was terminated in breach of the Code and also filed a civil wrongful dismissal action which claimed wrongful dismissal damages due to the the failure to receive proper notice .

The Tribunal noted that the civil action did not contain any allegations of a Code violation, although they could have added such a claim to the civil action but choose not to do so .

This is what the Adjudicator said :

17]     The Tribunal addressed the application of subsection 34(11) of the Code in Zheng v. G4S Secure Solutions (Canada) Ltd., 2019 HRTO 407 (affirmed by 2022 ONSC 93, leave to appeal to the Court of Appeal refused). In that case, the Tribunal found that although the applicant removed any mention of Code-based allegations from their civil claim, the allegations set out in the application and the civil claim were virtually identical in their substance. The Tribunal then dismissed the application for that reason. As the Divisional Court stated at paragraph 37:

This is not a question of shaping the civil action so as to avoid reference to the allegation of discrimination. The facts are the same. A self-represented party would not be aware of our courts’ general antipathy to a multiplicity of proceedings. Having decided to go to court, relying on the same impugned actions as those alleged to have been discriminatory in a complaint to the Human Rights Tribunal of Ontario means that the Court is in a position to deal with the matter fully, including any allegation of discrimination. In short, you do not get two kicks at the same set of facts.

My Comments :

This should put an end to at the plaintiff practice of starting a clean wrongful dismissal action and also bringing a HRTO application claiming that there was discrimination at play. This tactic was developed for several reasons.

First it forced the Defendant to fight in two places which would increase their sunk legal costs in so far as there is no costs awards at the HRTO.

Secondly if the Plaintiff lost the civil action they could still try the Tribunal route, again with no risk of an adverse cost award.

This tactic was intended to put extra pressure on the Defendant to settle .

I suspect one of the reasons for the Tribunal decision is to try to lessen their outrageous backlog.

A more recent decision of the HRTO confirmed the same position. See Koufis v. James Campbell Inc. o/a McDonald’s Restaurant, 2023 HRTO 475 (CanLII)

Quere: If the civil courts can easily handle Code based cases, then why do we even need the HRTO?

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

For my mediation date availability go to www.barryfisher.ca

In Teljeur v Aurora Hotel Group , 2023 ONSC 1324, Justice Mckelvey awarded moral damages of $15,000 to a dismissed GM of a resort for the following reasons:

1. They did not pay him his ESA minimums within the 7 days set out in the ESA.
2. They promised him 8 weeks severance but then paid only the ESA minimums of 2 weeks.
3. The Plaintiff repeatably asked for a termination letter in writing ( as required by the ESA ) but the defendant failed to do so .
4. The Defendants acknowledged at the termination meeting that the plaintiff was owed over $16,000 in expenses but failed to pay it, even as of the time of trial. This constituted 23% of the plaintiffs annual income.

In Starling v Independent Living Resource Centre of Calgary, 2023 ABPC 31, Judge Argento of the Provincial Court awarded $2,000 as aggravated damages for the following reasons

•         The Defendant terminated the Plaintiff while she was on sick leave and without having received any updated medical evidence indicating she was well enough to return to work.

•         The Defendant made no effort to call the Plaintiff to check on her health before it threatened to terminate, and eventually terminated, her employment.

•         The Defendant initially told the Plaintiff that she could not come to the office while on sick leave and that she would need medical clearance to return to work.  On September 26, the Defendant indicated, for the first time and without warning, that her employment could be terminated.

•         On September 26, the Defendant also advised the Plaintiff she would be dismissed for cause if she did not provide further information in two days. The two-day deadline was inadequate given the absence of any prior warning. It was also unreasonable to expect the Plaintiff to be able to obtain updated medical information in that time frame.

•         The Defendant advised the Plaintiff she had no sick leave or vacation days left even though Mr. Hagel’s May 3 email stated otherwise.  The Defendant did not check its files properly and failed to identify Mr. Hagel’s earlier email before placing the Plaintiff on unpaid, rather than paid, sick leave.

My Comments :

Courts seem to be increasingly willing to punish employers who do not conduct terminations in a sensitive and reasonable manner.

Playing hardball with a Plaintiff at their time of extreme vulnerability can be a costly affair.

For a copy of either of these cases, email me at barry@barryfisher.ca

For my mediation date availability, go to www.barryfisher .ca