Category: Uncategorized

In Brisebois v Shaw Communications Inc ( 2016 CarswellNat 4227) Adjudicator Peterson ruled that even though the Complainant had not even attended at the hearing and subsequently lost his case, he had no statutory authority to award costs to the Employer as his power to order a remedy was only upon a finding that the Complainant was unjustly dismissed.

Of course there is no doubt that Adjudicators are permitted to award costs in favour of a Complainant as part of their jurisdiction to make the terminated employee whole.

This costs advantage is one more reason that many terminated Federally regulated employees choose to file an Unjust Dismissal complaint under the CLC rather than filing a law suit and exposing themselves to adverse costs awards.

Furthermore, if the Complainants’ lawyer is on a contingency feee arrangement, then they have effectively eliminated any risk of costs exposure for the Complainant in a loss because the client neither has to pay their own lawyer or the Employer’s legal  costs.

In Garrity v Richmond Kinsman Home Support Society ( 2016 BCSC 2204) Justice Pearlman was faced with a plaintiff who claimed that she was constructivley dismissed because of bullying and harassment by a co-worker.

She plead the case as follows :

16. As a result of the Incident, the Defendant’s failure to respond to the Incident, the issuance of the baseless disciplinary letter and the formal demeaning directive, the Plaintiff suffered physical and emotional stress resulting in her taking sick leave on or around January 18, 2016.

18. As a result of the actions and inactions of the Defendant, and the resultant effect on the Plaintiff’s health, the Plaintiff’s Employment was repudiated by the Defendant.

The Defendant took the creative position that as the plaintiff was an employee claiming that she had suffered an injury in the workplace caused by another employee that the BC Workers’ Compensation Act provided that the Workers’ Compensation Tribunal Appeal Tribunal had exclusive jurisdiction over the issue and therefore no Court could hear the case.

The Court agreed and ordered a stay of the civil lawsuit until such time as the Tribunal had ruled on whether or not they had exclusive jurisdiction over the matter.

Although this is BC case, the Ontario Act has similar provisions, so the result could easily be the same.

In Cabott v Urban Systems ( 2016 YKCA 4 ) the Court found that the proper notice period for a 53 year old Engineer with 1 year and 2 months service was 4 months and not the 6 month notice period awarded by the trial judge .

However, what is interesting about this case is the comments that the Court made about notice periods for short service employees. The following quotes illustrate this point:

15] …. the respondent submits that the recent jurisprudence supports a notice period of five to six months in short service cases. While B.C. precedents are consistent that proportionately longer notice periods are appropriate for employees dismissed in the first three years of their employment, I see little support for the proposition that five to six months is the norm in short service cases for employees in their thirties or early forties whose function is significant for their employer, but not one of senior management. … Absent inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason for extending the notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of the respondent when adjusted for age, length of service and job responsibility: ( emphasis added) 

15.  In Hall this court shortened a notice period of seven months to three months for a 42-year-old skilled employee with approximately nine months’ service with his employer. Madam Justice Newbury, for the court, summarized:
[42] Of course, courts of law must also look to what awards have been given in similar cases. In this regard, Ms. Gill referred us to a number of cases involving employees with short-term periods of service in which notice periods of two or three months were selected: see especially Jimmo v. Chief Hauling Contractors Ltd. [2009] C.L.A.D. No. 129 and Allen v. Assaly Holdings Ltd., [1991] 34 C.C.E.L. 81 (Ont. S.C.J.) We were also referred to this court’s decision in Saalfeld v. Absolute Software Corp., 2009 BCCA 18, in which a “norm” of five to six months’ notice in “short service cases for employees in their thirties or early forties whose function is significant for their employer, but not one of senior management,” was rejected. (Para. 15.) The Court suggested that British Columbia precedents indicated a range of two to three months for a nine-month employee in the shoes of the plaintiff in Saalfeld. ( emphasis added) 
. . .
[44] In this case, the trial judge’s choice of seven months as the appropriate period of notice did fall outside the usual range, which as we have seen is generally around two to three months in cases involving short periods of employment and skilled employees who are in their forties. I would allow the appeal on this ground as well. ( Emphasis added) 

18. On the other hand, there is some force to the submission that Ms. Cabott’s position in Whitehorse, described by the judge as senior and supervisory management, involved somewhat greater responsibility than the positions discussed in Saalfeld and Hall. Accepting the description of the range of notice for specialized employees in short term positions as two to three months as observed in Saalfeld and Hall, the character of this employment would justify an award modestly beyond that range.

23. For a short term employee the useful starting place in discussing range is the two to three months spoken of in Saalfeld and Hall. The only feature of this case that would extend that range (there being no special circumstances such as inducement, bad faith or a poor labour market) is a level of responsibility not present in those cases.( emphasis added ) 

Before you thinking  that the Yukon Court of Appeal is not that important , please note that two of the  judges sitting on that Court are actually Court of Appeal judges of the BC Court of Appeal. This decision was written Madame Justice Saunders, the author of many BC employment judgements.

In Sinnathamby v The Chesterfield Shop Limited ( 2016 ONSC 6966) Justice Charney assessed reasonable notice for a 45 year old Senior Customer Service Agent with 14 years service at 10 months.

However, insofar as she did nothing to look for a job for  the first 15 months following her dismissal, he reduced the damages to 6 months notice.

The Judge rejected the Plaintiff’s excuse for not looking for 15 months with these words:

119. The plaintiff acknowledges that she did not begin to look for alternative employment until January 2012, fifteen months after her dismissal. She claims that her medical condition prevented her from looking for work before that period. As already indicated, the plaintiff has filed no admissible medical evidence to support her claim that she could not work prior to January 2012.

122. In the absence of any admissible medical evidence to support this delay I conclude that it is appropriate to reduce the notice period for which the plaintiff is entitled to damages to six months.

Upon first reading these paragraphs, one might think that the Plaintiff submitted no medical evidence, however the Judge spent considerable time reviewing her medical evidence and found it to be wanting at best. This is what he found:

Medical Evidence
74. The plaintiff alleges that she was “diagnosed by Dr. Chen as suffering from depression, hypertension and anxiety”. She also claims that as a result of her wrongful dismissal she has “suffered further depression, mental distress and emotional anguish”. She alleges that her illness “stemmed from work related stress and prevented her from seeking and obtaining alternative employment”.
75. These allegations are unsupported by any evidence whatsoever. Dr. Chen did not file an affidavit on this motion. Even the medical documents that the plaintiff did file belie this claim. None of the doctor’s notes filed by the plaintiff include any such diagnosis. The hospital records relating to her emergency visit to Toronto Western Hospital on September 17, 2010 filed by the plaintiff state that the plaintiff’s “presenting complaint” was “vertigo” and the clinical notes state that she “came to ER because it takes 2 weeks to see family MD”. The notes indicate that she should take gravol as needed for nausea. The triage assessment states that her chief complaint was dizziness and that she “reported intermittent dizziness x 2 weeks”. There is no reference to depression, hypertension, anxiety, mental distress or emotional anguish, let alone any evidence linking such diagnosis to her dismissal from Chesterfield.
76. The medical report from October 27, 2010 states that she is a 44 year old female who presents with dizziness and imbalance. It states:
Mrs. Sinnathamby states that approximately two months ago she developed upper respiratory tract infection for which she was started on antibiotics. That eventually resolved but subsequent to that she developed episodes of vertigo. She describes them as true vertigo, and positional in nature, worse when in a lying down position. She has no associated fluctuating hearing loss, no aural fullness and no tinnitus. She otherwise has no focal neurological features. In particular she has no symptoms consistent with vertebrobasilar insufficiency. Since having started the BETAHISTINE she does feel that her symptoms are improving.
77. None of these records contains any reference to depression, hypertension, anxiety, mental distress or emotional anguish. All of her medical records up to and including July 2011 relate to dizziness and vertigo.
78. There are some barely legible clinical notes commencing September 2011 that state that the plaintiff is “depressed”, but in the absence of an expert affidavit to explain the relevance or significance of these cryptic references they do not meet the “best foot forward” obligation imposed on a party moving for summary judgment.
79. The plaintiff places particular reliance on a clinical note dated January 18, 2012 that, again, is barely legible. The parts that can be read state:
Sleeping better . . . overall better. Was terminated at work. Depressed at home. Will look for job.
80. In the absence of an expert affidavit explaining the relevance and significance of these comments they do not support her claim for mental distress or her claim that she was unable to return to work prior to January of 2012. Even on its face the clinical note does not indicate that Dr. Chen advised her that she could not return to work prior to January 18, 2012; it appears that she made the decision to look for a job herself. The note appears to reflect what the patient has reported to the doctor and not what the doctor has diagnosed.
81 .Indeed, the plaintiff was aware that she required an affidavit from her doctor to support the allegations made in this lawsuit. Dr. Chen’s final clinical note dated January 5, 2016 states “Upset/depressed re: wrongful dismissal, wants affidavit re: medical condition at the time — off work ~ 1year since Sep. 2010. Now has moved on — different job. Still has unresolved ill feelings”.
82. No such affidavit was provided, but Dr. Chen did provide the plaintiff with an undated note stating: “This is to certify that Suchitha may return to work as of January 18, 2012”.
83. The note, by itself, is not particularly helpful. It does not indicate whether or why she was not able to return to work earlier. It does not provide a date range of when the plaintiff was unable to work or why. It appears to be carefully drafted to say as little as possible. Since it is not part of an expert affidavit that can be cross-examined it cannot be used to support the plaintiff’s claim on a motion for summary judgment.
84. There is some dispute as to when this undated note from Dr. Chen was written. All of Dr. Chen’s other notes were dated. The undated note was not included in the plaintiff’s original affidavit dated April 4, 2016. On cross-examination she gave conflicting evidence, initially stating that she could not recall when she received the note or how it came into her possession. I agree with counsel for the defendant that the note was likely written by Dr. Chen around the same time as the plaintiff’s reply affidavit (September 13, 2016) because Dr. Chen was unable or unwilling to provide an affidavit. Pursuant to Rule 20.02(1) I have drawn an adverse inference from the plaintiff’s failure to provide an affidavit from Dr. Chen or any other medical expert.
85. I have dealt with the plaintiff’s medical allegations in some detail because they are allegations that are subject to objective verification. Other allegations (such as the dispute regarding the telephone calls between the plaintiff and Mr. Bochynek) are more difficult to resolve on an objective basis. It is clear from the medical records provided by the plaintiff that she complained of dizziness and was diagnosed with vertigo in September/October 2010. Yet her affidavit makes no mention of vertigo or dizziness, and claims instead that she was diagnosed with depression, hypertension, anxiety, mental distress and emotional anguish.
86. Based on this objective inconsistency between her affidavit and her medical records I find that the plaintiff is not a credible or reliable witness. There are other parts of her affidavit evidence that are also unreliable (I will address these later), and at the end of the day I am inclined to believe Mr. Bochynek’s versions of events rather then the plaintiff’s.

It seems that the  Judge was not particularly pleased with the Plaintiff putting forth a less than believable medical excuse for not looking for a job. His award of 6 months ( 26 weeks ) is only 4 weeks more than her ESA minimums of 22 weeks.

In Bellini v. Ausenco Engineering Alberta Incorporated (2016 NSSC 237) the Court was faced with the following termination provision:

In Schinnerl v Kwantien Polytechnic University ( 2016 BCSC 2026) Justice Steeves found that the plaintiff had failed to mitigate her damages when she turned down a full time job but accepted a part time job so that she could continue her PhD studies.

The Court commented as follows:

[36] In my view, the plaintiff was certainly entitled to negotiate a change from full‑time to part-time work so she could get closer to completion of her PhD studies. However, that is a separate matter from her duty to mitigate the damages she is entitled to from her dismissal by the defendant. By turning down full-time work at Douglas College but then seeking damages for full-time work she is essentially claiming that her former employer should pay for part of her continuing education. It is true that the education commenced with the defendant but its obligation to contribute ended under its educational leave policy as well as with the plaintiff’s dismissal.

[37] I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests but I do not agree this means her former employer is required to pay for the interests of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal. The plaintiff relies on previous judgments but they can be distinguished on the facts because there was no alternate position available to the dismissed employee (for example, Haff v. Valeant Pharmaceuticals International Inc., 2013 BCSC 1720 (CanLII), at para. 70). Similarly, the efforts of a disabled former employee to refocus his vocational aspirations in the absence of alternate work is a different case than the subject one (Birch v. London Drugs Ltd., 2003 BCSC 1253 (CanLII), at para. 27).

[38] In my view the subject case is analogous to a previous judgment where it was held that a dismissed employee cannot elect to take further training with the cost of the training as a charge against the former employer (Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828 (CanLII), at para. 107).

[39] In summary, the defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant.

In Morison v Ergo-Industrial Seating Systems Inc. ( 2016 ONSC 6725) Justice Rogers held that reasonable notice for a 58 year old Regional Sales Manager with 8 years service making $211,000 annually was 12 months .

But the Judge did not stop there. The judge was very concerned about the defendants’ conduct and considered that in analyzing both the issue of aggravated damages and punitive damages.

This is what the Court said  about aggravated damages :

40. It is clear that an employer can allege just cause as a ground for dismissal and that abandoning cause at any stage, in the course of the action, does not necessarily mean that such conduct should attract aggravated damages. Provided the employer had a reasonable basis on which it believed it could dismiss an employee for cause, a finding of bad faith will not automatically follow: see Mulvihill v. Ottawa (City), 2008 ONCA 201, 90 O.R. (3d) 285, at paras. 49, 55 .
41 However, in this case, the evidence is rather clear that the plaintiff was simply not a good fit with his new immediate superior (Exhibit 1, tab 19 being a convincing example). It is equally clear that this superior knew someone she respected who expressed interest in Mr. Morison’s position. The defendant was interested in trying someone new who had what the defendant perceived was a more positive disposition towards the healthcare sector. The defendant was clearly entitled to these beliefs and to hire someone else. However, none of this constituted reasonable belief in just cause.
42. Considering all the evidence on this issue, I conclude that alleging cause was an integral part of the defendant’s negotiation strategy. The defendant was counselled in September 2012 that it would not be able to establish cause. The defendant alluded to a possibility of alleging cause in its dismissal letter. The defendant then alleged cause in its defence and adopted a rather aggressive position while providing no convincing evidence at trial that could support its alleged reasonable belief in cause or that it was reasonably justified in initially adopting a position of just cause.
43. This is exactly the kind of conduct mentioned in Honda v. Keays as an example of conduct in dismissal that could result in aggravated damages. I find that the defendant did not act fairly or in good faith in the manner of dismissal of Mr. Morison as the defendant was not candid, reasonably honest, nor forthright with Mr. Morison. The defendant, by its allegations made with no reasonable basis in support thereof, attacked the reputation of Mr. Morison by making misrepresentations regarding the reasons for his dismissal for financial gain (i.e. seeking a better outcome in its negotiations with Mr. Morison). This is a classic example of bad faith.

However the Judge noted that to award monetary damages there had to be evidence of actual damages sustained. The Court commented as follows:

45. On this point, the evidence in this case is quite different from that in Middleton v. Highlands East (Municipality), 2013 ONSC 763, 8 M.P.L.R. (5th) 114, where the Court found, at para. 142, sufficient evidence of mental distress. Here, the evidence of mental distress caused by the manner of dismissal cannot be dissociated from the usual anguish and stress resulting from having one’s employment terminated. I point out that I am not concerned with the lack of a medical report (on which time was spent during closing arguments), but rather with the lack of convincing evidence of mental distress on which I could properly assess damages resulting from the manner of dismissal. By way of example, some of the plaintiff’s evidence on this related to how he was in a fog when he found out by a friend that he would be dismissed and how this was a horrible day, with other parts of his evidence relating to his financial distress. Despite mentioning that the allegations of cause got his back up and caused him some upset, his evidence in that regard was extremely superficial and lacked particulars. The evidence is not at all convincing and is simply not sufficient to warrant any damages in this context, since normal distress and hurt feelings resulting from a dismissal areensable. For these reasons, the facts relevant to damages in this case are quite different from those in cases such as Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, and Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, and do not give rise to compensable damages.
46. As indicated in Canada (A.G.) v. Robitaille, 2011 FC 1218, at para. 38, the employee’s testimony may be sufficient to establish such damages and the absence of medical evidence does not deny the damages suffered by the employee as long as there is evidence of such damages and evidence of a causal connection between the moral injury and the wrongful conduct.

However, there is no need to prove actual damages in order to award punitive damages. In the following strong language the Judge awarded punitive damages in the amount of $50,000:

52. In this case, the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract: the breach of its duty of good faith, as found above.
53. I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.
54. I had the advantage of listening to the evidence and observing the witnesses and I find such conduct to be reprehensible. It exceeds what might be considered as ill-advised. The allegations of cause, made with no reasonable basis, and the significantly delayed payment of statutory amounts were intentional and financially impacted the plaintiff. These actions of the defendant were designed to financially benefit the defendant and the defendant had knowledge of the plaintiff’s precarious financial position. Such a conduct is “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour”. A similar finding was made in Kelly v. Norsemont Mining Inc., 2013 BCSC 147, at para. 115.
55. Since I have awarded no amount for aggravated damages, the pitfalls of double-compensation or double-punishment mentioned in Honda v. Keays is avoided if I award punitive damages.
56 .Considering the facts of this case, I find that an award of punitive damages is rationally required to punish the defendant and to meet the objectives of retribution, deterrence, and denunciation. Employers cannot be allowed to behave in such a fashion without a clear message being sent by this Court that this is not acceptable.

The facts that justified an award of aggravated damages were virtually the same as those relied upon for punitive damages, which reinforces my belief that they are one and the same.

In order to get over the hurdle that the Plaintiff was not committed to a mental health facility as a result of the defendants’ actions,  the Court simply recast the defendants’ behaviour in the language of punitive damages and came to the same result.

To somewhat  paraphrase Michelle Obama, ” When the Employer goes low, the Court will go high.”

In Reeve v 2265480 Ontario  Ltd cob Hidden Valley Resort, ( 2016 ONSC 5273) Justice Glass of the Divisional Court overturned a Small Claims Court judge who actually said in his judgement that  in determining the notice period he was ” arbitrarily ” choosing one month.

Justice Glass determined that Plaintiff, who was employed as a Manager for only 3 months, was entitled to receive 4 months notice, in part because he had a managerial job, he had moved his family from Toronto to Huntsville, was not on probation, was not given any guidance as to his alleged performance problems and it took 9 months for him  to find a new job.

It is interesting to think what would have happened if the Small Claims Court judge  had not used the word ” arbitrary” and instead  had said ” Considering the relevant Bardal factors, I find that reasonable notice is one month”.

In Caskanette v Bong-Keun Choi Dentistry ( 2016 ONSC 6448) Justice Mitchell was hearing an appeal from the Small Claims Court where the Plaintiff was found to have dismissed with just cause. In the alternative, the Small Claims Court judge said that if he had found no just cause, he would have awarded a notice period of 4 months , which worked out to be worth $7,575.

The Superior Court found that just cause was not proven and awarded the Plaintiff $7,575.

In their costs submission, Plaintiffs’ counsel ( who was 31 years at the bar) claims he spent 87.6 hours on the appeal, and another 20.5 hours by law clerks and students.

The Superior Court judge commented on the excessive amount of time spent by Plaintiff’s counsel and ultimately awarded costs of $10,000, inclusive of HST and disbursements. This is only $1,000 more than the Plaintiffs’  lawyer claim for HST and disbursements.

If in fact Plaintiffs’ counsel actually charged his client $56, 320 for the appeal and he recovered $17,375, then this “win” only cost her a mere $38,945. The plaintiff, by the  way, made $22,725 per annum in the job that she lost.

In Pisko v. Trican Well Service Ltd. ,( 2016 ABQB 500) Master Farrington found that a provision of the employment agreement offended the Alberta Employment Standards Act in that it excluded a certain rotational shift allowance from the calculation of wages when determining how much money was payable for each week of termination pay.

The contract provisions were as follows:
Clause 9: Compensation-your base salary will be $110,652.00 per year (“Base Salary”). In addition, you will receive a Rotational Assignment Allowance (“RAA”) of 25% of your base salary in accordance with the Rotational Policy, bringing your total compensation to $138,315.00 per year, less applicable statutory deductions. The RAA percentage is subject to change in Trican’s sole discretion.
Clause 14: Termination-In the event that this Agreement or your employment is terminated by Trican after completion of your probationary period, for any reason other than cause, Trican will provide you with either: (i) sixty (60) calendar days notice of such termination, i.e. the equivalent of one full rotation; or (ii) a severance payment equivalent to sixty (60) calendar days of your Base Salary, excluding the RAA and less applicable statutory deductions; or (iii) a combination of notice and Base Salary, excluding the RAA and less applicable statutory deductions, equivalent to sixty (60) calendar days total.
Clause 19: Severability-If any provision of this Agreement is determined to be void or unenforceable in whole or in part, it will not be deemed to affect or impair the validity of any other covenant or provision of this agreement.

Rather than declaring the whole provision invalid as it breached the ESA, the Master chose to ” rewrite the contract” so that it complied with the ESA. His comments were as follows:

Severability
25. The question then becomes whether all of Clause 14 of the employment contract (including the 60 day notice provision) is void, or whether some type of alternative result should flow. The plaintiff argues that all of Clause 14 is void and that Machtinger applies preserving the common law position on notice periods and reasonable notice.
26. The employment agreement in this case has a severability clause. The agreements in Machtinger did not appear to have had such a clause.
27. When one reviews the termination clause in this case there are three alternatives for the employer. The first alternative permits termination on 60 days notice. Nothing in that concept violates the Employment Standards Code in any way. The second alternative allows for a severance payment equivalent to 60 calendar days, but it excludes the RAA in the calculation of the payment. I have found that excluding the RAA from the calculation violates the Employment Standards Code. The third alternative, and the one chosen here, also excludes the RAA in the calculation of the payment in lieu of notice portion of the severance payment. Similarly, that provision, as drafted, violates the Employment Standards Code.

28. Machtinger was a case about an aggressive employer who attempted to take advantage of employees and who then asked for a fallback position that its contract be interpreted as if it had been drafted with the employment standards minimum notice periods as its severance obligation. The Supreme Court of Canada found that to be objectionable, as finding for the employer would have been an incentive for employers to attempt to take advantage of employees by attempting to shorten notice periods with no consequences to them if their attempts were not successful if they were allowed to have a fallback position based upon the employment standards minimum notice periods in any event. In Machtinger , there was a common law alternative on notice periods if the agreement was declared to be void. The readily available common law alternative to a void contractual notice period was the common law doctrine of reasonable notice.
29. In this case, the issue is not with respect to the notice period itself, but rather in the calculation of wages. The working notice provision allowed for 60 days notice. There was no suggestion in the evidence or argument that anyone was attempting to intentionally avoid the provisions of the Employment Standards Code in the drafting of the payment in lieu of notice provisions.

30. The preamble of the Employment Standards Code provides in part:
RECOGNIZING that legislation is an appropriate means of establishing minimum standards for terms and conditions of employment;
(Emphasis added)
31. There is support for considering the preamble of the Employment Standards Code in section 12(1) of the Interpretation Act which provides:
(1) The preamble of an enactment is a part of the enactment intended to assist in explaining the enactment.
32. The Employment Standards Code is meant to ensure that employees receive guaranteed minimum protections as set out in the Code. That is an important objective which must never be compromised. The Employment Standards Code is not, however, meant to necessarily serve as a conduit to remedies in excess of the minimum standards for every breach by an employer, regardless of the nature of the breach. In some instances, such as in Machtinger , the result of a breach and a declaration that a provision in an employment contract is void results in reliance upon common law remedies where they exist and are available to deal with the issue that rendered the contract void.
33. In this case the offending provision is with respect to the calculation of wages. The remedy for that type of breach is to calculate the wages properly. The remedy is not to rewrite the agreement of the parties regarding the applicable notice period when that notice period complied with the Employment Standards Code. I find that the issue of the notice period and the calculation of wages are two separate issues. While there may be some subtle differences between the calculation of income or wages for severance purposes under the Code and under the common law, there is no suggestion that any of that type of income is a factor in this case.
34 Trican argued that the severability clause was available to provide formal severance of the offending portions of Clause 14 of the letter agreement. I do not believe that it is necessary to formally do so based upon the facts of this case.
35 The Employment Standards Code provides for a minimum set of standards that must be met by an employer. The employment agreement permitted termination with notice. The notice that was given in this case was 16 days of working notice, plus a severance payment of 60 days including the RAA. The notice given and the payment made clearly exceeded the guaranteed minimums under the Employment Standards Code. In the circumstances, I find that it is sufficient for the employer to simply have paid more than the correct amounts without the exclusion of the RAA as has been done by the employer.
Conclusion
36 In accordance with Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) , I find that the record before me is sufficiently complete to allow me to make a fair and just disposition on the merits, and that there are no material facts in dispute. Accordingly, I grant Trican’s application for summary dismissal. It has more than met its obligations under the employment agreement, as affected by the Employment Standards Code, and it has exceeded the minimum standards required under the Employment Standards Code when wages are properly calculated. There is an enforceable notice period provision in the employment contract. Trican has paid 60 days of payment in lieu of notice (including the RAA) when it was obliged to pay 44 days (including the RAA) having given 16 days of working notice. There are no further issues that remain.

At first blush this case looks like it is a license for employers to avoid illegal contracts by simply having the Court correct the contract by insuring that the Employer pays no less than the ESA.

However in this  case, the contract provided that the Employer had to pay 60 days of base pay, whereby the ESA provided that they had to pay 44 days of base pay plus the shift allowance. The base wage was $110,652 thus 60 days of that wage would equal $25,535 whereas 44 days of the full wage of $138,315 would be equal to $23,407.

In other words, at the end of the day, the contract termination amount exceeded the ESA minimum amount, so of course, the contract did not violate the ESA.

Therefore the Master’s comments would seem to be unnecessary verbiage ( obiter dicta ) and as such probably do not change the law on the enforceability of illegal ESA contracts.

Moreover some of the Masters comments are troubling from a policy perspective :

1) “There was no suggestion in the evidence or argument that anyone was attempting to intentionally avoid the provisions of the Employment Standards Code in the drafting of the payment in lieu of notice provisions.”

Why would this matter? How could any employee have evidence of the motivation behind a contract clause drafted by the Employer? Surely we look at the effect of the contract and not the motivation of the drafter.

2) Although the contract provided that the allowance ( RAA) was not to be included in calculating termination pay, in fact it seems that when actually paying out the termination pay, the Employer did include the RAA. The Court seemed to take that into effect when it decided that the termination provision was valid. However when examining the legality of a contract, you are only to look at its language, not how  one party acted on the contract. To do otherwise would mean that an Employer could avoid a finding of illegality by simply paying the ESA amount even though the contract called for a lesser payment. This is exactly the policy evil that the Supreme Court of Canada was trying to stop in Machtinger.