Uncategorized – Page 13 – Barry Fisher's Employment Law Blog

Class Action on Unpaid Vacation Pay and Public Holiday Pay for Variable Income Can Proceed:

In Curtis v. Medcan Health Management Inc., 2022 ONSC 5176, the Ontario Divisional Court overruled the decision of Judge Perell who denied certification.

The action is based on the premise that both vacation pay and statutory holiday pay are to be paid on all income, not just on base pay. In this class of employees all of them had some component of either commission income or bonuses which are wages under the ESA.

Medcan sought to remedy this mistake by paying monies owing for the two years prior but refused to pay before that date, relying upon the two year limitation period in the Limitations Act 2002.

This class action seeks compensation for the period before the two years.

The Div Court found that the class action was preferable over individual civil actions because this would provide a greater access to justice, given, among other factors, the unwillingness of current employees to sue their employer directly.

Moreover the trial judge failed to consider the behaviour modification aspects of the application, namely that by holding the employer responsible for the actual damages incurred by the class, it will serve as a message to other non compliant employers that they cannot just ignore the ESA for decades and then get out of the problem by only paying up for the last 2 years if they are caught.

The Court then certified the class.

Class counsel was Monkhouse Law and Employer counsel was Hicks Morley .

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

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

Terminating an Employee Without Reasonable Notice Results in Employer Paying for 26 Years of LTD Benefits:

In Pasap v Saskatchewan Indian Gaming Authority and Bear Claw Casino ( 2022 SKQB) Justice McMurtry had a situation where there was an issue as to whether the employee was fired or resigned. Having found that the Defendant had given him an ultimatum to quit or be fired, the Court found that he was fired and should have received 8 months notice.

Two months after his termination, the Plaintiff ( who was only 38 years old) suffered an serious medical event which the Judge found made him disabled for the rest of his working life. Because the Defendant had not continued his LTD coverage through the notice period, they became liable for 26 years of LTD benefits ( until he turns 65) , which came to $1,216,764 plus 8 months notice, plus $25,000 in aggravated damages plus $25,000 in punitive damages plus costs.

Comment: This case illustrates the massive risk that an employer takes when they improperly cut off important benefits prematurely like LTD or life insurance. If this was simply a LTD denial case with an insurer the Court would not order the payment future benefits as a lump sum, rather the Court would award past benefits and put the Plaintiff back on claim. This could not be done in this case because the defendant was not an insurer.

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

BC Court Finds That ESA Only Termination Clause is Enforceable :

In Shultz v. Prococious Technology Inc., dba,Cleardent, 2022 BCSC 1420, Justice Walkman found that the following termination clause was enforceable as it fully complied with the BC ESA.

6.3 Termination by Company Without Cause. The Company may
terminate the Employee’s employment for any reasons, without cause, uponnproviding the Employee with only the notice or payment in lieu of notice (or a combination thereof) in the minimum amount required by the British Columbia Employment Standards Act, as amended from time to time. Benefits will end on the last day worked.

6.4 The Employee understands that by complying with this Article 6.3, thenCompany satisfies its entire obligation under statute and common law tonprovide notice or pay in lieu of notice to the Employee in the event that theirnemployment is terminated. In no event will the Employee receive less noticenor pay in lieu of notice than the minimum termination notice or pay in lieu of notice they are entitled to under the British Columbia Employment Standards Act, as may be amended from time to time.

The Plaintiff did not provide the Court with any arguments as to why the actual language was unenforceable, rather they focused on the fresh consideration issue.

Can anyone out there think of any arguments that could have been made about the enforceability ? Remember this is a BC case and not an Ontario case. Please post your comments or send me an email at barry@barryfisher.ca

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

Quitting and Returning One Year Later is a Break in Service;

In Shultz v. Prococious Technology Inc., dba,Cleardent, 2022 BCSC 1420, Justice Walken had a situation where an employee quit her job after 12 years for another job. One year later she returned to her former employer and was then terminated 2.5 years later.

Her new hiring letter did not directly address the issue of her past service, however the Court found that because there was a probationary clause and because her vacation entitlement was that of a new hire ( and not one reflective of her past service) , her seniority for purposes of notice was only 2 .5 years. The Court then determined that the proper notice period was 2 months .

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

Employer Allowed to Plead its Termination Offer When Plaintiff Pleads Bad Faith Damages:

In Posehn v. CIBC, 2018 ONSC 1458, Master Jolley was dealing with an objection by the Plaintiff that the Defendant had pleaded in its defence the terms of a settlement offer which the Defendant made at the time of termination.

Master Jolley noted that in a simple notice case it would be both irrelevant and improper to plead such an offer. However in this case, the Plaintiff has pleaded bad faith, aggravated and punitive damages because at the time of his termination they only included his base salary and not his variable income in their termination payment.

Therefore the pleading of the Defendants’ offer was relevant to the accusation of bad faith and bad behaviour at the time of termination. Presumably this was plead to show the Judge that the Defendant were not a bunch of meanies.

The pleading was not struck.

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

ONCA Upholds 10 Months Notice Period for Short Service Director:

In Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONCA 655 , the Court upheld a 10 month notice period for a 47 year old Director of Marketing Communications with just under 3 years service who was making $132,000 /year plus bonuses.

The Court also noted that the trial judge had properly taken into account the economic effects of the COVID pandemic in May of 2020, when the Plaintiff was terminated.

On a second issue, the Appellant argued that notwithstanding the parties agreement to use a non roster mediator ( my good friend Peter Israel), the Defendant should only be required to pay the $300 roster rate as part of the costs award and leave the winning party responsible for the rest.

The Court rejected that argument and said that this was well within the discretion of. the triall judge to have the losing party paid the entire disbursement.

Conflict Note: Winning counsel was my very own eldest son, Matthew Fisher. I never get tired of saying that.

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

Illegal Termination Clause is a Fixed Term Contract Leads to $479,000 Award:

In Tarras v. The Municipal Infrastructure Group Ltd., 2022 ONSC 4522 (CanLII) Justice Smith had the following situation:

1) The Plaintiff had a fixed term 3 year contract at $250K /year as part of the sale of his company to the Defendant.
2) He was terminated after only 11 months without cause.
3) The ESA termination clause was illegal because it relied upon the common law concept of just cause rather than the ESA standard of wilful misconduct. .
4) He was a highly sophisticated party who had legal advise throughout the transaction.
4) The Plaintiff did nothing to mitigate his damages but didn’t have to as it was a fixed term contract

As a result of certain quirks in Ontario employment law, he received the balance of his contract ( 23 months) and had no duty to mitigate his damages.

If anyone tells you that employment law is straightforward and simple, run for the hills and seek the advice of an employment law specialist.

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

Court Finds That Plaintiff Committed Sexual Harassment But No Just Cause and Also Awarded $25k in Punitive Damages:

In Cho v. Café La Foret Ltd., 2022 BCSC 1560, Justice Shergill had a situation where a 60 year old Head Baker in a Korean bakery was found to have inappropriately touched a 20 year old subordinate on the shoulder, arm and buttocks.

The Employer conducted an investigation in which the Plaintiff admitted his conduct and agreed to apologize to the young woman. However the Employer told him the only way he could keep his job was to sign an affidavit ( in English which was not a language that the Plaintiff was comfortable) admitting that he had committed a sexual assault. The Employer refused to give the Plaintiff his ROE unless he signed the affidavit. The sole purpose of the affidavit was to enable the complainant to press criminal carges against the Plaintiff.

The Court found that the sexual harrassment was ” relatively minor” and was just a “gross error of judgement” . The Court initially awarded 5 months notice but then reduced it to two months due to a failure to mitigate, resulting in a reduction of about $16,000. The Court then awarded $25,000 in punitive damages because of the attempt by the Employer to have the Plaintiff sign the affidavit and put himself in legal jeopardy.

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

Screwing Around on Setting Discovery Dates Leads to Striking of Defence:

In Ferguson v. Yorkwest Plumbing Supply Inc. 2022 ONSC 479 Associate Justice Jolley decided that “enough was enough” with roadblocks that the defendant had cosnstruced to delay a simple wrongful dismissal action .

This is what the Defendant did;

1. Defence counsel repeatably ignored Plaintiff’s counsel agreement on dates for discoveries following a failed mediation.

2. The Plaintiff then served a notice of examination 10 days forth, which the defence responded to 7 days later saying that neither he nor his client were available.

3. Again Plaintiff’s counsel asked for dates and again defence counsel ignored him. Plaintiff counsel again served a new notice and this time defence counsel said that he could not attend due to ” medical reasons”.

4. Plaintiff’s counsel served a third notice which the defence also ignored. Plaintiff obtained d a Certificate of Non Attendance and brought a motion before Morgan J. who ordered discoveries to be completed by February 28th and warned that if the defendant failed to comply he would suggest that there be ” an admonishment directed at the Defendant”.

5. The defendant failed to attend on the set date because there was a dispute as to who was to be examined first.

6. Noting that this was a Simplified Procedure of a relatively straightforward dismissal case and the vulnerability of terminated employees, the Court struck the Statement of Defence, leaving the Plaintiff to proceed to a motion for summary judgement in which the Defendant has no say.

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

Another Ontario Case Decides CERB Does Not Reduce Wrongful Dismissal Damages:

In Henderson v. Slavkin et al., 2022 ONSC 2964 Justice Carole Brown again dealt with the CERB issue .

She held that in this particular case, CERB did not reduce the wrongful dismissal damages for the following reasons:

First, the Plaintiff had not ceased working for reasons related to COVID-19 ( as required by Section 6 (1) (a) of the CERB act , rather she was let go because her employer was retiring and shutting down his dental practice. Therefore the Judge concluded that the plaintiff might have to repay the CERB.

Second, the Judge somehow determined that CERB was intended ” as an indemnity for wage loss related to COVID-19, not for wage loss arising from an employer’s breach of an employment contract. ”

Third, justice dictated that the allocation of risk of repayment should not fall upon the Plaintiff as she was a older and long serving employee.

My Comments :

All of the cases which have said that CERB is not to be deducted from wrongful dismissal damages point to the fact that the plaintiff may have to repay CERB.

I am personally unaware of this ever happening nor am I aware of any section of the CERB Act which would even be grounds for a repayment in these circumstances.

If anyone knows of a repayment obligation arising from a wrongful dismissal payment, please contact me.

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