In another of the many CERB cases, the case of Donovan v. Quincaillerie Richelieu Hardware LTD., ( 2021 NBQB 189) has come down in favour of not deducting CERB from wrongful dismissal damages.
This is what Justice LeBlanc said:
63. Regardless of any basis upon which Iriotakis, supra, may be distinguishable, I take a view similar to that taken by the Court in Slater, supra, that Mr. Donovan will likely be required to repay the CERB benefits given that there is a requirement for repayment by the recipient if they are rehired or received retroactive pay from their employer. It is indisputable that damages awarded to Mr. Donovan are a form of payment for the period during which he would have been working had he received reasonable notice of his termination. There is a likelihood that he could be required to repay such benefits if it is found that they relate to the same time for which he is compensated through damages.
64. Should Mr. Donovan be required to repay the benefits, it would be unfair that damages to which he was entitled were already reduced, leaving him to explain and justify why he should not have to repay while Richelieu receives credit for the money through a reduced damage award. Although there is a risk that Mr. Donovan may benefit from a windfall if he is not required to repay, that windfall
will not have caused Richelieu to pay an amount greater than what would be justified in the absence of the CERB program. Consequently, the CERB payments will not be directly deducted from the damage award.
Commentary;
No basis is given in the judgement as to what statutory provision the government could or has even tried to claw back CERB on the basis that the person subsequently received a wrongful dismissal award. There is a specific provision in regards to EI repayments but when I examined the CERB legislation I was unable to find any statutory authority to do the same . if someone could point out to me what the statutory basis the Feds could use to force repayment of CERB payments as a result of a subsequent award or payment of wrongful dismissal damages, I would be pleased to blog about it.
If you like a copy of this case, email me at barry@barryfisher.ca