Category: Uncategorized

Ontario Court of Appeal Reverses Finding That Plaintiff Failed to Mitigate :

In Lake v. La Presse, 2022 ONCA 742, the trial judge had assessed an 8 month notice period for a 52 year old General Manager with 5.5 years service making $185,000. However the trial judge reduced the notice period by 2 months on the grounds of poor mitigation.

The Court of Appeal reversed the reduction and said the trial judge erred for the following reasons:

1. The Judge said that as time went on the Plaintiff should have looked for lesser positions such a salesperson. The Court held that this was an error and that the Plaintiff is always entitled to look for comparable employment and that she need not lower her sights as time went on.

2. The trial judge said that she was aiming too high in applying for VP jobs. The Court found that the trial judge focused too much on the titles of the positions the Plaintiff was applying for and ignored the Plaintiff’s evidence that the jobs she was applying for were of the same nature as hers, despite their loftier titles.

3. The trial judge admitted that she had no evidence before her on this issue , but went on to infer that if there were VP jobs available there must have also been more junior jobs available and that if the Plaintiff had applied for such junior jobs, she likely would have got one. The Court stated that the employer has to show not only that such jobs actually exist ( on which point no evidence was led) but that if she had applied she would have obtained that job.

My Comments:

The law seems to be that the employer must not only show that the Plaintiff failed to pursue comparable employment but that if the Plaintiff had done so that they would have had a job before the end of the notice period.

The first part of the test is not hard to prove but the second part is almost impossible. Many job applicants meet the qualifications of a job ad but do not get the job. There may be many qualified candidates but only one position. The job may go to the most qualified applicant or to the GM’s lazy nephew.

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

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One Days Employment = 3 Weeks Notice of Termination:

In Tessema v. Nemesis Coffee Holdings Inc (2022 BCCRT 1113) Tribunal Member Lopez awarded 3 weeks notice to a 32 year old courier driver making $20/hour for a 30 hour work week for a total of $1,800

To do some simple math, that means the Plaintiff effectively earned $1,920 for one days work, or $384/hour . Not bad pay for a courier.

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$15,000 Settlement Leads to $30,000 Cost Award:

In Janmohamed v Dr . Zia Medicine PC ( Ct file # CV-20-00646993) Justice Myers had a situation where the Plaintiff accepted the Defendants Rule 49 Offer of $15,000 plus costs to be assessed. The parties could not agree on costs.

The judge made the following comments after writing about what he thought was the ” very aggressive” fight by the Defendant.

“A plaintiff whose employment is terminated without cause is entitled to pay in lieu of reasonable notice. Employers should not be incentivized to low-ball and then force a plaintiff to sue to obtain what everyone knows is justly due. Costs and delay are horrible risks to a plaintiff who finds herself sitting at home having to spend thousands of dollars, while unemployed and vulnerable, to chase money that is obviously due from a well funded employer. In my view a plaintiff should reasonably expect to be paid her costs on a partial indemnity basis in a wrongful dismissal action. The quantum is an issue and I deal with it below. But it would be fundamentally unjust to leave the plaintiff under water as a result of bringing her employer to a position that it ought to have arrived at or near and offered fairly at the time it terminated her employment.’

I love the way Justice Myers gets to the point and doesn’t pull punches. Kinda reminds me of myself.

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Costs for a One Day Summary Judgement Motion = $35,529

In Pohl v. Hudson’s Bay Company, 2022 ONSC 5598, Justice Centa determined that costs for the winning plaintiff who beat his own Rule 49 offer was to be $35,559 plus disbursements where his full indemnity costs were $42,425.

I found this following  passage  most interesting, where the Judge commeneds on the difference between how large firms bill and how small firms bill

“HBC submits that Mr. Pohl’s “higher than expected costs simply reflect a failure to appropriately delegate work.” It is true that all of the work done on Mr. Pohl’s file was done by one lawyer. This contrasts with the defendant who had four lawyers, four students, and a law clerk work on the file at various times. But there are many ways to organize legal work efficiently and effectively. Looking at the work done by Mr. Pohl’s counsel, it appears to have been done very efficiently, even taking into account his higher hourly rate, which it itself appropriate for a lawyer with 43 years of experience. I do not accept that the differences in how these files were staffed should mean that Mr. Pohln should receive less on a blended substantial indemnity / partial indemnity scale than HBC would have sought on a partial indemnity basis if it was successful.”

My Comments :

Ontario judges have been awarding significant cost awards in employment cases even where the hearing only takes one of two days. This matter can often play out in a mediation where there is a relatively small difference between the parties final offers. This is especially relevant in a simple notice case, where in most cases the Defendant has only paid out the ESA and the parties are only arguing about the length of the notice period. In those cases, the defendant will lose at trial, the only issue will be by how much. Since a loss almost always carries an adverse cost award ( unless the Defendants beats its own Rule 49 offer) , the cost award can easily exceed the difference between their last offers. As many Plaintiffs are on a contingency arrangement, going to trial carries less risk as the extra  work is done by the lawyer and does not affect the Plaintiff’s recovery.

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BCSC Holds That Putting Non Compliant Employee on Leave for Violating Vaccine Mandate is NOT a Constructive Dismissal :

In Parmar v. Tribe Management Inc., ( 2022 BCSC 1675) Justice MacNaughton ruled that a mandatory vaccine policy introduced in October of 2021 was reasonable and that on an objective basis a reasonable employee would not have considered the policy as a substantial imposition of an essential term of the agreement.

This case is definitely worth reading in its entirety, but here are some interesting highlights:

1. The Defendant was not intending to terminate the employment for she could return to work at any time as long as she was vaccinated.


2. The Court took judicial notice both of the effect of the pandemic and the safety and utility of the vaccine.

3. The plaintiff was the only one of the 200 employees who refused. This alone was evidence of the objective basis that the policy was not unreasonable .

4. While it is extraordinary for an employer policy to affect one’s bodily integrity, given the the extraordinary challenges of COVID, the policy was reasonable.

5. The plaintiff was not being forced to vaccinate, rather she was simply forced to make a difficult decision, vaccinate and work vs don’t vaccinate and don’t work.

This would appear to be the first civil case on this issue. Of note is that the Judge referred to numerous labour arbitration cases on these issues. Of course the Judge was not obligated to follow these arbitration cases, but clearly the Judge was influenced by them as they were the first to deal with this novel issue .

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

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Employer Wacked with $55,000 of Moral and Punitive Damages :

In Pohl v Hudson’s Bay Company ( 2022 ONSC 5230 ) Justice Centa awarded at 53 year old Sales Manager with 28 years service a notice period of 24 months. No surprise there.

However the Judge also awarded $45,000 for moral damages and $10,000 for punitive damages because :

1. The Plaintiff was walked out the door after his termination.


2. HBC tried , unsuccessfully, to trick the Plaintiff into accepting a lower rated position which would have effectively eliminated his common law entitlement to reasonable notice.

3. They did not pay his severance pay within 7 days as required by the ESA but rather paid it out on salary continuation for two months before finally paying out the balance as a lump sum. This was not only used to justify moral damages but also the punitive damage award.

4. Instead of issuing the ROE immediately they delayed it until the end of the salary continuation period and then made several mistakes in the form.

My Comments on Each of The Judges’ Reasons.

1. In my experience, this is a pretty common practice.


2. This seems to be a practice which really pissed off the judge.

3. It seems that the motivation behind HBC may have been to maximize their entitlement to the CEWS subsidy, which was payable on salary continuation but not on a lump sum severance payment. On the other hand, because of Order 8 under the EI Act, the receipt of a lump sum of severance pay would not affect the Plaintiffs’ immediate entitlement to EI whereas if he received salary continuation he would not have been entitled to EI for the same period. Ironically each side was probably trying to maximize their entitlement to COVID related measures.

4. My understanding of the ROE is that it is only be be issued upon the cessation
of payroll payments so since the Plaintiff was being paid by way of salary continuation, the ROE would only be required once the payroll payments ceased.

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

I welcome your comments on my comments

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NBCA Deals With Allegation of Improper Layoff and Constructive Dismissal :

In Donovan v Richelieu Hardware (  2022 NBCA 45 ) the Plaintiff was first put on a temporary layoff and then 5 months later was terminated. The Plaintiff did not claim that the the first layoff was a constructive dismissal, but rather a simple breach of contract, and therefore claimed that he was entitled to both 5 months lost wages for the breach of contract and reasonable notice once his employment was terminated.

The trial judge rejected the Plaintiff’s argument and found that the Plaintiff had been constructively dismissed at the time of the original layoff, even though the Plaintiff did not plead this.

The CA agreed and said that when faced with the breach of contract the Plaintiff had only two choices, either accept the breach or claim that he had been constructively dismissed .

My Comments:

I have always understood that faced with a breach of contract, the innocent party had three choices:


1. Accept the breach and in essence agree that the agreement has been amended.

2. If it was a fundamental breach, treat the breach as ending the contract and sue for damages.

3. Simply suing for the loss but not terminating the contract.

From a policy point of view, the purpose of notice is to allow the Plaintiff to look for another job. But the essence of a temporary layoff is to say to the employee ” I do not have work for you now, but I will have work soon, so please do not start another job because I promise to recall you soon “.

If the temporarily laid off employee believes her employer, then she will not use that time to look for another job. Why then should this time count as notice of termination?

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

I always welcome your comments.

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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 .

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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.

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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