Court Denies Stay in Pregnancy Extending Notice Period Case:
In Nahum v Honeycomb Hospitality ( no citation ) Justice Sossin denied the defendant’s motion to stay the enforcement of a summary trial decision which had been upheld by the Divisional Court which stood for the proposition that the reasonable notice period could be extended where the plaintiff was pregnant at the time of termination even when the employer was unaware of the pregnancy.
The Court found that there was a serious issue to be determined but that there was no evidence that to have to pay the judgement of $56,000 at this time would result in the defendant suffering irreparable harm.
Th Court ordered the Defendant to pay the monies into the trust account of its own lawyer pending the outcome of the appeal and ordered costs to the plaintiff in the sum of $5,000. This means that so far the Defendant has been ordered to pay costs of approximately $36,000 on a judgement of $34,000.
If you would like a copy of this case, email me at barry@barryfisher.ca
61 year old Finance Manger with 9 Months Service Gets 2 Months Notice :
In Flack v Whiteoak Ford Lincoln Sales, ( 20121 ONSC 7176 ) Justice Dunphy gives a very thorough analysis of how to weigh the various Bardal Factors of age, length of service, character of employment and COVID in relation to this short service employee.
He also said this about my very own Wrongful Dismissal Database ( WDD) available through Thomson Reuters:
[31] The defendant for its part relied quite heavily on statistical tables comparing large numbers of broadly similar cases suggesting a range about 2.24 months’ notice for salespeople in the 58-70 age bracket with less than one year of service.
[32] In my view, the range suggested by databases such as the “Fisher Database” can provide a useful view of the general range applicable, but this is only a starting point and not an end point.
Having said that a detailed analysis is required for each case on its own merits , he then awards a notice period in line with statistical average as determined by the WDD , or as he calls it the “Fisher Database”.
If you want to find out more about the WDD go to :
www.wrongfuldismissaldatabase.com
If you wish a copy of this case email me at barry@barryfisher.ca
Another Court Confirms That Mandatory Vaccine Policy Does not Force Employees to Get Vaccinated :
Increase in UBER Earnings Post Dismissal Not Deducted from Damage Award :
Sexual Assault is by Definition Serious Misconduct :
In AG Growth International Inc v Dupont ( 2021 ABQB) Justice Little, sitting on appeal from a decision of the Provincial Court found that the trial judge had made a error of law when he failed to begin his analysis of the actions of the Plaintiff by starting with the premise that a sexual assault is automatically at the high end misconduct.
This is a brief summary of the incident:
a) before January 9 RT ( a female coworker) and Mr. Dupont were workplace acquaintances, but they were not good friends;
(b) at about 8:00 a.m. on January 9 Mr. Dupont asked RT to go on a date with him and in reply she said “maybe”;
(c) at about 9:25 a.m. on January 9 Mr. Dupont approached RT while they were both working at the Westeel facility in Olds, Alberta and asked her if she was chilly and said “Now that you’re single we can go on a date”;
(d) Mr. Dupont then reached over and lifted RT’s hoodie and Tshirt, exposing the area of her body extending from her bellybutton to her bra, including her bra;
(e) Mr. Dupont did this because he wanted to flirt with and “hit on” RT, and he wanted to show her that he “liked her a lot”;
(f) Mr. Dupont did not intend to lift RT’s T-shirt when he lifted her hoodie;
(g) Mr. Dupont did not intend expose any part of RT’s body when he lifted her hoodie;
(h) Mr. Dupont’s actions caught RT by surprise, and caused her to be anxious, distressed and embarrassed, and caused her to fear Mr. Dupont;
(i) RT immediately swore at Mr. Dupont and slapped his hand away;
This what the Court said about the correct way to start the analysis in a case of this nature :
IV. Analysis
Ground One: Level of Seriousness of Misconduct
[8] Determination as to whether summary dismissal is justified requires an analysis of the proportionality of the employer’s response to the misconduct. That analysis begins with a determination of the seriousness of the misconduct.
[9] Consideration of the following excerpt from the trial decision suffices to dispose of the appeal on this first ground:
[87] In the present case, Mr. Dupont’s action constituted a single, brief and isolated incident of unwanted touching of RT, for the purpose of flirting with RT in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not persist, but immediately desisted and walked away.
[88] While I do not discount the effect that his actions had upon RT, they fall at the low end of the “spectrum of seriousness” referred to at para 205 of Foederer and cited at para 90 in Willow Park Golf Course Ltd.
[10] A finding that intentional and unwanted touching for a sexual purpose (Trial decision para 83) constitutes sexual harassment at the low end of the spectrum of seriousness ignores our Court of Appeal’s determination that sexual assault is at the high end of that spectrum:
Sexual assault, by its very definition, is serious misconduct: Calgary (City) v CUPE Local 37, 2019 ABCA 388 at para 11)
[11] Recognizing that Calgary v CUPE dealt with the standard of review of an arbitrator’s decision, it nevertheless stands for the proposition that in this case, the trial judge’s starting point in the proportionality analysis should have been that the impugned conduct was on the high end of the spectrum of seriousness.
…
[15] Since a sexual assault is what occurred, the whole analysis ought to have been conducted with that finding in mind: Calgary v CUPE para 33
[16] Having commenced the correct analysis but from the incorrect starting point, the trial judge’s decision cannot survive review on a correctness standard.
My Comments :
Presumably the analysis should have been as follows
1) Did the conduct amount to sexual assault ?
2) If yes, then this is serious misconduct .
3) Are there any mitigating factors which would indicate that termination for just cause was a disproportionate response ?
If you would like a copy of this case email me at barry@barryfisher.ca
Retraining Costs Allowed Even Through Plaintiff Did Not Get a New Job Within the Notice Period:
Plaintiff Wins $34,000 in Expense Reimbursement Even After Signing Release:
Costs of $80,000 Awarded in Summary Motion:
In Rahman v. Cannon Design Architecture Inc., 2021 ONSC 7624 Justice Dunphy awarded $40,000 for partial indemnity pre Rule 49 offer and an additional $40,000 thereafter the Rule 49 offer on a substantial indemnity basis.
The Court considered the following factors :
1. One should not second guess the strategic litigation choices made by the winner.
2. There was a large amount of money at issue ( $300,000) and a large number of issues.
3. Including a number of issues and parties that had a faint hope of success is not a practice to be encouraged.
Here is the interesting point. The Defendant won the motion thus these costs were awarded against the Plaintiff.
I am advised by Plaintiff counsel that they have filed an appeal on the merits so this part of the case may also be considered by the appeal .
court.
By the way, this was a one day motion. Not bad pay for a days work.
If you wish a copy of this case email me at barry@barryfisher.ca
In Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONSC 68, Justice Stewart award the Plaintiff costs of $50,000 plus disbursement but inclusive of HST on account of obtaining an award of $118,305.
The Court made these comments about the respective offers prior to trial:
[6] The Plaintiff made a series of offers to settle prior to trial, each of which was less than that recovered. These offers were made in order to arrive at a compromise to make a trial unnecessary.
[7] The Defendant rejected these offers. Although the Defendant did make counter-offers they were substantially less than the Plaintiff’s compromise position and much less than his recovery at trial.
As this was a Simplified Procedure action the maximum that the Court could award would be $50,000 plus HST plus disbursements.
This case shows the advantage of using the Simplified Procedure and of making meaningful Rule 49 offers to settle.
Conflict Alert: The winning Plaintiff’s lawyer was my son Matthew Fisher, a partner at Lecker & Associates .
If you wish a copy of this case email me at barry@barryfisher.ca