Federal Court of Appeal Confirms that an Adjudicator under the Unjust Dismissal Section of the CLC can Award Substantial Indemnity Costs ;
In Amer v. Shaw Communications Canada Inc., 2023 FCA 237, Justice Gleason upheld the Adjudicator’s award of substantial indemnity costs even where there was no finding of circumstances where there was reprehensible, scandalous or outrageous conduct on the part of the employer.
The Court upheld the more modern view that to not award such costs to an innocent employee is to punish them for pursuing their legal rights .
This is what they said:
[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.
[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.
My Comments ;
This is an important win for dismissed employees who utilize the unjust provisions of the CLC. As managers are statutorily excluded from the unjust dismissal provisions, the average claimant is of modest means. In fact, many of these claimants are self represented, resulting in rough justice at best.
By making sure that winning claimants can afford lawyers, the quality of the adjudications would also rise.
Unlike the civil justice system where a losing plaintiff can face a substantial adverse costs award, under the CLC the Adjudicator cannot award costs against a losing claimant .
If you would like a copy of this case, email me at barry@barryfisher.ca
If you like to book a mediation session, go to my calendar at www.barryfisher.ca
To subscribe to the Wrongful Dismissal Database, go to www.wddonline.ca
In Amer v. Shaw Communications Canada Inc., 2023 FCA 237, Justice Gleason upheld the Adjudicator’s award of substantial indemnity costs even where there was no finding of circumstances where there was reprehensible, scandalous or outrageous conduct on the part of the employer.
The Court upheld the more modern view that to not award such costs to an innocent employee is to punish them for pursuing their legal rights .
This is what they said:
[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.
[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.
My Comments ;
This is an important win for dismissed employees who utilize the unjust provisions of the CLC. As managers are statutorily excluded from the unjust dismissal provisions, the average claimant is of modest means. In fact, many of these claimants are self represented, resulting in rough justice at best.
By making sure that winning claimants can afford lawyers, the quality of the adjudications would also rise.
Unlike the civil justice system where a losing plaintiff can face a substantial adverse costs award, under the CLC the Adjudicator cannot award costs against a losing claimant .
If you would like a copy of this case, email me at barry@barryfisher.ca
If you like to book a mediation session, go to my calendar at www.barryfisher.ca
To subscribe to the Wrongful Dismissal Database, go to www.wddonline.ca