Barry Fisher's Employment Law Blog

In Merrifield v Canada ( Attorney General ) 2017 ONSC 1333, Justice Vallee heard a case involving  serious allegations of harassment against a RCMP officer by his superiors over a number of years.

The trial took 40 days, and stretched out from November 2014 to April 2016.  The record shows five lawyers for the parties.

In a 896 paragraph decision  the plaintiff won and was awarded two heads of damages:

1. The Plaintiff’s rise in rank had been delayed a for 18 months , resulting in a career wage loss of $41,000.
2. For the tort of intentional infliction of mental suffering, the Court had this to say :

What amount should be awarded to Mr. Merrifield for general damages?
Analysis
877. Amounts awarded for damages for intentional infliction of mental suffering and harassment have increased significantly since the 1990s.
878. In Clark v.Canada, [1994] 3 F.C. 323, 3 C.C.E.L. (2d) 172, a female member of the RCMP was harassed by her male co-workers. She was told to be a “real woman” and go home and have children. Her co-workers watched pornographic movies while she was in the office. Plastic breasts were left on her desk. When her body armour was delivered, it was set up with a mocking note attached to it. These are a few examples of what the plaintiff endured. When she complained to her supervisors, they were dismissive. These events caused her to have a documented mental health crisis. She resigned her position.
879. The court reviewed awards for intentional infliction of nervous shock prior to 1994, considered a “reasonable measure of consolation” for her particular mental condition and awarded the plaintiff $5,000. The defendants’ state that based on this decision, if Mr. Merrifield is entitled to damages, the amount should be nominal.
880 .The plaintiff relies on four cases decided between 1997 and 2014. They are Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R.701, Tipple v. Canada (Attorney General), 2012 FCA 158, 431 N.R. 257, 158, Joseph v. Tl’azt’en First Nation, 2013 F.C. 767, 9 C.C.E.L. (4th) 173 and Boucher v. Wal-Mart Canada Corp. The defendants state that these cases are not applicable because the plaintiffs were either terminated or constructively dismissed.
881. I disagree with the defendants’ position. In all of these cases, the court considered the events leading up to the termination or constructive dismissal. The defendants’ actions caused the plaintiffs to suffer from mental health conditions. Damages were awarded to the plaintiffs for mental suffering. I find that these cases are relevant and helpful on this issue.
882. In Wallace, the Supreme Court of Canada determined that the trial judge had discretion to extend the notice period with respect to the termination. The possibility of recovery for mental health damages remained. It noted that a tort for breach of good faith and fair dealing regarding a dismissal was not yet recognized.
883. In Tipple, the employer alleged that the plaintiff’s actions were a form of misconduct. The matter attracted a considerable amount of media attention. The court found that the allegations were unfounded. In the interval, the plaintiff had suffered a significant loss of reputation. He was awarded $250,000 for the loss of reputation and $125,000 for the psychological injury that he sustained as a result of the manner of his termination.
884. In Joseph, an employer made vile and serious allegations of fraud upon the employee’s termination. This resulted in significant damage to the employee’s reputation. The employee had considerable difficulty in finding other employment. Prospective employers stated that the plaintiff had to be vindicated before they would consider hiring him. The court awarded $85,000 for damage to the employee’s physical health, well-being, integrity, dignity and personal and professional reputation.
885. In Boucher, the plaintiff was a cheerful and productive employee. When the personal defendant became her supervisor, he belittled, humiliated and demeaned the plaintiff in front of others continuously and relentlessly for approximately six months. She complained of her supervisors actions to management who determined that her complaints were unfounded and told her that she would be held responsible for making them. The plaintiff became broken and defeated. She suffered from a number illnesses including depression. A jury awarded the plaintiff $100,000 for intentional infliction of mental suffering. The award was upheld on appeal.
886. Mr. Merrifield suffered from significant depression and post-traumatic stress disorder as a result of the actions taken by the RCMP. He was unable to work for various periods of time. At one point, he disengaged from his family and spent his days lying on a sofa. He did not bathe and developed bed sores. His depression during these periods deprived him of meaningful interaction with his wife and young children. It deprived him of successful performance in a job that he loved and for which he was acknowledged to be a national expert. It also deprived him of the gratification of positive interaction and collaboration with his colleagues.
887. Not only did Mr. Merrifield suffer from significant mental health issues as a result of the actions taken by the RCMP, those actions also stained his reputation. A number of people knew that he had been removed from national security work. They assumed that he had done something wrong. Even Insp. Van Doren, who was not Mr. Merrifield’s supervisor, knew that he had been removed from national security work. As a result of this, he considered Mr. Merrifield to be unsuitable to work at the SOC during a national security emergency.
888. Supt. Proulx accused Mr. Merrifield of using his Amex card for personal reasons, in other words stealing money from the RCMP. Sgt. Dickinson interviewed a number of people during the Part IV investigation. All of them knew the serious allegations against Mr. Merrifield which were tantamount to criminal conduct. The allegations were insidious. For example, Supt. Jagoe still believes that the allegations were substantiated. Just as the news of Mr. Merrifield’s removal from national security work spread among the RCMP management and other members, so too would the allegations of disgraceful conduct. Sgt. Dickinson stated that the members that he interviewed would not have known of the outcome of the Part IV investigation or that the allegations were unfounded.
Conclusion
889 Taking all of this into account, I award Mr. Merrifield general damages against the defendants for harassment and intentional infliction of mental suffering in the amount of $100,000.

 

One cannot begin to imagine the legal fees involved in this case. I do not know what has or will happen at the costs stage or  if the AG was smart enough to put in a Rule 49 offer of more than $141,000 well before the trial.

If they did, ( and as a taxpayer I sure hope they did ) the cost award in their favour would easily wipe out the $141,000 award and the plaintiff would owe a considerable amount to the Crown for costs.

If the Plaintiff put in a Rule 49 offer and beat it, well then the Plaintiff’s costs will dwarf the award.

I have not seen the pleadings but I cannot imagine that a plaintiff would launch an action of this enormity and only expect to receive $141,000.

So here we have it. A legal process that costs hundreds of thousands of dollars that in the end results in the  transfer of  $141,000 from one party to another, maybe.

How is this process proportional as required by Rule 1.04 of the Rules of Civil Procedure ?

INTERPRETATION

General Principle

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.  R.R.O. 1990, Reg. 194, r. 1.04 (1).

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.  O. Reg. 438/08, s. 2.

 

 

 

In Weed v Royal Bank of Canada (2017 CarswellNat 343) Adjudicator Michelle Somers heard an unjust dismissal case for 14 days, with 9 witnesses and ” voluminous ” documentary evidence.

Having found that Mr. Weed was unjustly dismissed , the Adjudicator declined to order reinstatement for the following reasons :

Reinstatement
196. It is well-established that s. 242 of the Code gives the Adjudicator broad powers of compensation, including reinstatement “Where an employee has been dismissed unjustly, there is a presumption in favour of reinstatement unless there is clear evidence to the contrary”: Pecoskie and Atomic Energy of Canada Ltd., 2015 CarswellNat 5573. The test whether there is a relationship of trust between the employer and employee is an objective one.
197. Counsel for RBC submitted that reinstatement would not be appropriate, while Counsel for Weed went no further than to acknowledge that I have the right to consider it In an October, 2014, email, Weed told a prospective employer that he was going through the Labour Board so he could have his position back with RBC but that he was sure that was a bad idea.
198. Weed believes that his role as a financial planner is to serve the best interests of his clients. He believes, apparently sincerely, that his employer’s emphasis on sales conflicts with those interests. RBC had shifted its business emphasis during Weed’s employment towards a drive to increase sales of its products, and I conclude that Weed either had difficulty or refused to accept this shift Prior to the onboarding of Leblanc as his manager, he had a clean record. Indeed, he was a very good performer. There may or may not have been insufficient training in the new business model.
199. These factors are not sufficient to excuse some of the decisions that Weed made during his employment As the Adjudicator said in Farrell v Royal Bank of Canada [1998] CLAD. No. 793, “My conclusion that the Bank did not meet the just cause standard in dismissing Farrell should not be understood as a vindication of her work performance in that regard.” [para. 144]
200. Although he did say to Leblanc and in his Decision-Making Exercise that he would change his conduct to be more in line with his employer’s standards, Weed did not acknowledge at the hearing that his conduct at the very least contravened his employer’s compliance standards, nor that he was in any way responsible for the breakdown in his relationship with his employer. That makes his prospects for a happy future with RBC dim. My lack of confidence is exacerbated by his avowal at the hearing that as between the bank’s standards and his own estimation of his client’s needs, he would disregard standards set by his employer.
201. I agree with RBC that the relationship between it and Weed has been irreparably damaged, and that reinstatement is not a feasible remedy.

The Adjudicator instead awarded him compensation in the sum of $230,000 which covered the period of time from his dismissal to the date of the award, a period of 35 months less mitigation income plus  a 15% reduction for what the Adjudicator thought was poor mitigation efforts.

In awarding costs the Adjudicator properly stated that :

It has now been established that an Adjudicator appointed under the Code has the jurisdiction to award costs. The leading case is Banca Nazionale del Lavoro of Canada Ltd. V Lee-Shanok [1988] F.C.J. 594, 1988 CarswellNat 254 (FCA). Stone J.A. determined the scope of the Adjudicator’s jurisdiction under s. 61.5(9)(c) of the Code [now s. 242(4)(c)]:
“I have no difficulty in reading it, with its broad reference to granting relief that is “equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal”, as including the power to award costs. The difficulty I have is in viewing an award of compensation, gained at some considerable expense to a complainant in terms of legal costs, as having the effect of making him whole. Legal costs incurred would effectively reduce compensation for lost remuneration, while their allowance would appear to remedy or, at least, to counteract a consequence of the dismissal.” [para. 25]

 

The Adjudicator then went to refuse to award costs to the winning Mr Weeds with the following rationale.

212.  Counsel for Weed suggested that half of solicitor-client costs would be appropriate. However, I am going to adopt the reasoning in Pecoskie, supra. In that case, the Complainant was Executive Assistant to the Vice-President of Finance. She sent 35 emails that were “confidential and privileged” to her husband, who was a Project Leader in the same company. It was alleged she had also sent him emails that insulted and derided other managers and colleagues. Although her performance had previously been assessed in glowing terms, the company bypassed progressive discipline and dismissed her on the basis she had committed “a serious breach of trust, confidentiality and respectful workplace practices.” Adjudicator Clarke examined the emails in detail. They were largely related to issues that assisted her husband in his role at the company. A few said distasteful things about her manager and alleged that a colleague was not truthful. No one saw them but her husband. The Adjudicator determined that although she had violated the rules of the workplace, her actions were not sufficiently serious to warrant summary dismissal. Nevertheless, the Adjudicator made no costs award because the complainant could not be considered blameless.
213. Counsel for RBC submitted that no costs should be awarded given Weed’s conduct at the hearing. While I would not go so far as to say he made allegations that were proven to be false, I have already determined that that Weed has much to answer for in this matter, and I therefore decline to award costs.

This is a particularly troubling comment and result. The adjudicator seems to apply a exceeding high standard for a winning party to get costs, in that they apparently must be “blameless”, a standard which most of us would fail.

Although I am not usually the one to quote the New Testament, I am reminded of what Jesus said in John 8,  v 7. ESV:

“Let him who is without sin among you be the first to throw a stone at her.”

Let us do some math. The Adjudicator awarded $230,000.

Out of that amount he will have to pay his lawyer for a 14 day hearing and all the preparation. His lawyer was Richard Gilborn QC. Say a senior member of the bar in Calgary is charging his client $500/ hour or $4000 a day for a 8 hour day. Further assume that for every day of hearing there is about 2 days of preparation.

That makes for a bill of    14 X 3 = 42 days X $4000 / day = $168,000

The award was $230,000. After paying his lawyer he is left with $62,000 . Assume a conservative tax rate of 33%, he is left with $40,920.

Is that a  just result when one actually  wins a case ?

 

 

In Patterson v IBM ( 2017 CarswellOnt 2625) Justice Dunphy determined the appropriate notice period for a 67 year old Band 6 IT Specialist with 22 years service making $62,388 per year. He awarded a notice period of 18 months.

Dunphy J. made some interesting and helpful comments in the judgement on a number of topics:

1. The usefulness of summary judgements in notice cases.

4. Wrongful dismissal cases lend themselves particularly well to resolution through summary judgment proceedings. Cause is seldom at issue and the criteria to assess damages typically involve few disputed facts. The difference between the low and high end of likely damages is seldom as great as the costs of finding the answer following a full trial with all the trimmings. In my view, the practice of resolving wrongful dismissal damages cases in a co-operatively managed summary judgment proceeding is to be strongly encouraged: Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (CanLII), Fraser v. Canerector Inc., 2015 ONSC 2138 (CanLII).

 

2. The Lesser Importance of Character of Employment 

20. I am also mindful of the fact that “character of employment” is a criterion that is often of limited value in the modern context. This is a point that our Court of Appeal has recently emphasized in cases such as Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII). It bears in my view only some weight in a case such as this. It may be that this particular criterion is fast becoming a vestige of a by-gone era. It is certainly difficult to defend on a principled basis. However the near universal application of Bardal over the last fifty-six years is such that I must leave the consideration of that issue to a higher court on another day. It is not of any great weight in this case and I shall leave it at that.

3. Use of  Prior Cases with the Same Defendant 

There has been a number  of wrongful dismissal cases involving IBM in the last few years on the issue of notice. In this case the Judge seemed to rely heavily on prior IBM cases as shown in this paragraph.

27. In Quinn v. IBM Canada Ltd. (unreported, CV-16-552858 released November 28, 2016), Myers J. awarded a 55 year old “Band 7” IBM employee 20 months of notice. Mr. Quinn had worked his entire working life at IBM with more than 35 years of service. In Waterman v. IBM Canada Ltd., 2010 BCSC 376 (CanLII); (affirmed 2013 SCC 70 (CanLII)), another “Band 7” IBM employee terminated at age 65 with 40 years of service was also awarded 20 months of notice. In Liboiron v. IBM Canada Ltd., 2015 BCSC 1523 (CanLII) a 57 year old Band 6 IBM employee with 32 years’ service was awarded 20 months. In Lee v. IBM Canada Limited, (unreported, CV-15-532014 released February 4, 2016) a 62 year old part-time employee with 40 years of service was awarded a notice period of 21 months. The “Band” of this employee does not appear in the decision but her full-time equivalent income would suggest that it was at a similar level (i.e. Band 6 or Band 7).
28. These four cases were relied upon by both parties with differing emphasis. They are useful comparators here not simply because they all involve the same employer. However, the IBM internal employee classification system in “bands” referred to by three of them provides at least a superficial basis of comparison of the character of the employment within the same organization. Two were one band higher while one was also in Band 6 (the fourth likely being in that same range). Importantly, the employees in question were all quite long-serving, in the upper age range and each was described as having quite challenging job prospects going forward. Three of these cases awarded 20 months of notice while one awarded 21 months of notice. These four employees had considerably more years of service to their credit than Mr. Patterson.
29. Every case turns on its facts and no two cases are exactly alike. That being said, these four cases are the most similar to the facts before me of any of the cases presented to me by the parties and recommend themselves to me for that reason.

This is similar to what happened in the Canac line of cases in which the Court relied primarily on other Canac cases in determining reasonable notice.

4. Determining how  the issue of future mitigation can be recognized in the calculation of damages given the period of reasonable notice has not yet expired. 

40.  It is only relatively recently we have managed to get to the point of being able to render a decision on wrongful dismissal damages while the period of reasonable notice is still running. The practice in such cases is divided. Some judges have opted to apply the “trust and accounting” approach and require the plaintiff to account to the defendant for future income if any earned during the notice period: Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878 (CanLII). Others have reasoned that future employment income damages are like any other contingent future damages and can be calculated with appropriate discounts for contingencies if necessary: Peticca v Oracle Canada, 2015 ONSC 2584 (CanLII).
41. I don’t think there is any hard and fast rule requiring me to adopt either approach and I may look at both for guidance on how best to achieve justice between the parties on the facts of this case.
42. Of the two approaches, the discounted approach appears to me to be the most consistent with general principles of calculating damages. It is also an approach that commends itself on other grounds. A “once and for all” calculation removes the incentive, even if only subconsciously, for the plaintiff to be lukewarm in his search for a new position if all income earned would have to be remitted immediately to a former employer. Society and the parties are all unquestionably better off if the plaintiff is able to resume productive, taxpaying work as soon as possible. A discounted approach also avoids the possibility of future legal entanglements between the parties.
43. In the present case, the notice period found by me has seven months to run. I have found it preferable in this case to fold into my consideration of the reasonable notice period the additional consideration of a minor discount for potential future earnings over the seven months or so I have found remain to be run in the notice period. Given the plaintiff’s poor prospects, the amount would at all events be quite minor relative to the total award and it seemed to me to be preferable to arrive at a global damages award rather than attempt to parse it artificially. I have thus applied the discounted approach but chosen not to break it out in a separate calculation here.

I especially like his policy analysis in paragraph 42. It recognizes that both the general law of mitigation and the trust approach used in some cases creates a situation whereby if an employee were to find a new but somewhat lesser paying job early on during the notice period, he or she is effectively working for free for the balance of the notice period as the former employer gets full credit for every dollar the employee earns in his new job. I don’t know about you, but as much as I like my job, I am sure not doing it for free.

In Wood v Fred Deeley Imports Ltd ( 2017 ONCA 158, Justice Laskin dealt with the important issue of whether an ESA only contract was valid.

The termination clause read as follows:

[The Company] is entitled to terminate your employment at any time without cause by providing you with 2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment with the Company. If the Company terminates your employment without cause, the Company shall not be obliged to make any payments to you other than those provided for in this paragraph, except for any amounts which may be due and remaining unpaid at the time of termination of your employment. The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000. [Emphasis added.]

Laskin J.A. first summarized the jurisprudence on interpreting employment agreements and referred to the following 8  principles.

1. In general, courts interpret employment agreements differently from other commercial agreements. They do so mainly because of the importance of employment in a person’s life. As Dickson C.J.C. said in an oft-quoted passage from his judgment in Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at p. 368:

” Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”

2 . As important as employment itself is the way a person’s employment is terminated, it is on termination of employment that a person is most vulnerable and thus is most in need of protection: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.

3. When employment agreements are made, usually employees have less bargaining power than employers. Employees rarely have enough information or leverage to bargain with employers on an equal footing: Machtinger, p. 1003

4. Many employees are likely unfamiliar with the employment standards in the ESA and the obligations the statute imposes on employers. These employees may not seek to challenge unlawful termination clauses: Machtinger, p. 1003

5. The ESA is remedial legislation, intended to protect the interests of employees. Courts should thus favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”, over an interpretation that does not do so: Machtinger, p. 1003.

6.. Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. If the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship: Machtinger, p. 1004.

7. A termination clause will rebut the presumption of reasonable notice only if its wording is clear. Employees should know at the beginning of their employment what their entitlement will be at the end of their employment: Machtinger, p. 998.

8. Faced with a termination clause that could reasonably be interpreted in more than one way, courts should prefer the interpretation that gives the greater benefit to the employee: Ceccol v. Ontario Gymnastics Federation (2001), 149 O.A.C. 315, Family Counselling Centre of Sault Ste. Marie and District (2001), 151 O.A.C. 35.

Laskin thereafter dealt with the various attacks on the validity of the ESA clause under these headings :

1. Failure to provide for benefits during the ESA 8 week notice period.

The failure of the termination clause to actually refer to benefits was fatal. The term ” pay ” in the clause does not clearly include benefits. As this term is at best ambiguous, the interpretation that is to be favoured is the one favouring the employee.

The fact that the Company did in fact continue the Plaintiff’s  benefits after termination is irrelevant as it was an error of law to consider the post termination actions of the employer in interpreting the clause. One can only look at the wording and if it is illegal then the contract is null and void and cannot be used as a way of trying to determine what was  the true intentions of the parties.

Moreover in Roden v Toronto Humane Society the ONCA upheld a clause which did not mention benefits. However in that case the termination clause did not have an ” all inclusive ” clause like the one in this case that stated that :

If the Company terminates your employment without cause, the Company shall not be obliged to make any payments to you other than those provided for in this paragraph, except for any amounts which may be due and remaining unpaid at the time of termination of your employment. The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000. [Emphasis added.]

Laskin J. found that this contract language difference was sufficient to distinguish the two cases.

2. Failure to refer to severance pay:

Simply put you cannot require an employee to work out his or her severance pay period by way of working notice. It must be paid as a lump sum within 7 days of the end of the last day of employment. The clause as drafted would have permitted the employer to require the Plaintiff to work out her entire 16 weeks of notice and severance, as she was employed for 8 years.

As this would have been contrary to the ESA, it is illegal .

Laskin J. upheld the trial judges assessment of 9 months reasonable notice. The Plaintiff was 48 years old, worked for 8 years as a Sales & Event planner making $100,000 per year.

This case is refreshingly easy to read and comprehend. It is almost as if Justice Laskin wants the average employer and employee to be able to read and understand it. Remarkable.

His clear listing of the 8 General Principles of Interpretation  of Employment Contracts and his application of those principles  to the facts provide us with a roadmap of how to approach similar cases in the future.

I wish Mr Justice Laskin had been on the  panel in Oudin v Le Centre Francophone de Toronto, Inc. ( 2016 ONCA 514 ). If so, I  doubt that it would have been decided in the way that it was.

Both Justices Feldman and Hourigan concurred with Justice Laskin’s reasons.

In previous blogs I commented that I wished that the Supreme Court of Canada would examine this issue of ESA contracts.

In light of this case, I think that is no longer necessary, at least for Ontario cases.

In Holmes v Hatch Ltd ( 2017 ONSC 379 ) Pollak J. awarded 18 months notice to a 54 year old Project Manager and Engineer with 17 years service .

The motion for summary judgement took place only 6 months after the termination of employment so the Court had to deal with how to award damages for the possible future loss.

This is what the Court did:

[33] With respect to the issue of the Plaintiff’s continuing duty to mitigate, I find that the evidentiary record does not allow this Court to make a finding on whether the Plaintiff will have any employment income loss during the balance of the notice period or whether he will successfully mitigate. Even though the Plaintiff has argued that he has not been able to find employment to the date of this motion, he moved for summary judgment knowing that it would be heard before he suffered any loss of employment income. To remedy this difficulty, the parties have advised the Court that they agree to follow the approach the Court has taken in the case of Markoulakis v. SNC-Lavalin Inc., 2015 ONSC 1081 (CanLII), 253 A.C.W.S. (3d) 362.

[34] The Court has determined that the total reasonable notice period for Mr. Holmes is 18 months. It follows that the Defendant has the obligation to pay Mr. Holmes the appropriate monthly compensation for the balance of the 18 month notice period subject to the deductions I have referred to above. The Defendant’s obligation to pay is also subject to the Plaintiff’s obligation to mitigate his damages and to a deduction in the monthly payments by the Defendant for any earnings from employment or a business. If during the balance of the notice period, the Defendant challenges the mitigation efforts or earnings of the Plaintiff and does not make such payments to the Plaintiff, the parties should determine the appropriate procedure for resolving this dispute.

[35] The parties have not agreed to, or provided the Court with, evidence on the amount of compensation Mr. Holmes is entitled to on a monthly basis for damages during the notice period. The Court has therefore only provided the parties with the above-noted legal determination of the duration of the reasonable period.

[36] Partial summary judgment is therefore granted by way of a declaration with respect to Mr. Holmes’ entitlement to 18 months’ damages for wrongful dismissal. The parties did not make any submissions on the procedure to be used if they require adjudication on the remaining potential issues and the calculation of “mitigation and damages”. I therefore make no ruling in this regard.
[37] At para. 78 in Hryniak, the Supreme Court of Canada held that:

Where a motion judge dismisses a motion for summary judgment, in the absence of compelling reasons to the contrary, she should also seize herself of the matter as the trial judge.

[38] In my view, this is an appropriate case for me to follow the Supreme Court’s direction and remain seized of any necessary future proceedings in this matter, such as a trial of the remaining issues. I must, however, qualify this to be subject to the practical reality of our court’s ability to schedule trials in a timely and expeditious manner. I will not be seized of this trial if the effect of my unavailability would be to delay the hearing of the trial between the parties. If it is possible to do so without adverse delay or consequences to the parties, I seize myself of the trial of this matter as directed in Hryniak.

I believe that this is a better approach to deal with the issue of ongoing damages than either the trust method or the discount method for the following reasons :

1. It best mimics what the law requires, that is paying compensation during the notice period less income earned through mitigation.
2. It allows Plaintiffs to have actual benefit coverage during the notice period rather than a payment in lieu.
3. It reduces the gamesmanship involved in setting the date for the motion for summary judgement in that no matter what the date is the duty to mitigate and the effects of mitigation remain the same,

I would however suggest that counsel should have suggested some procedure for adjudicating any future mitigation issues.

The parties could  agree that this issue would be decided either by arbitration or by returning to the motions judge. There should however be a provision that the employer is not allowed to unilaterally cut off the payments if they simply allege a failure to mitigate, rather they should be required to keep up the payments pending the Courts’ or arbitrators’ determination. This will avoid the circumstance of the Employer using the act of withholding payments as a pressure point to negotiate a discounted lump sum for the balance of the notice period. Any payment received by the Plaintiff in excess of what the Court or arbitrator determined was owing could simply be repaid.

The Labour and Employment section of the Ontario Bar Association, back in about 2009, produced a report for Chief Justice Winkler called the OBA Task Force on Wrongful Dismissal . In that report the Task Force had this to say about what they thought should be done about determining the on going payments after a motion for summary judgement.

The Court would assess the plaintiff’s mitigation efforts up to the date of the motion, and if the notice period continues beyond the date of the motion, the Court would, rather than order a lump sum payment of the entire notice period, order a payment to first bring the plaintiff’s wages and benefits up to the date of judgement. Then, the Court would make a further order that the defendant be required to continue to pay the plaintiff his or her salary and benefits to the end of the notice period, subject to the plaintiff’s continuing obligation to mitigate.

 If the plaintiff is to receive payments beyond the date of the motion, then the plaintiff will be required to report monthly, by statutory declaration to the defendant, what his or her mitigation efforts and mitigation income have been. The defendants’ payments would be reduced by any mitigation earnings, on a dollar for dollar basis. If the defendant believed that the plaintiff’s mitigation efforts were not reasonable, it could apply to the Court to amend the order requiring payment. The defendant could not unilaterally suspend the payments before the return date of the motion.

 If there were other issues that required determination, the Court could still order the payment of reasonable notice and order that the other issues be tried. For instance, if the parties agreed that the plaintiff’s base wage was $60,000 per annum but disagreed both on the quantum and the entitlement to a bonus, the Court could order monthly payments of the base wage only and defer the issue of the bonus entitlement to a full trial.

I was on that committee. it was a good idea then . It is still a good idea. I am glad to see that at least Madam Justice Pollak has adopted this procedure. I can only hope that it catches on with the rest of the Bar and Bench.

 

 

 

In Randhawa v The Bank of Nova Scotia ( HRDSC File # YM2707-10272 , not yet on CanLII ) Adjudicator Lorne Slotnick made these comments about the appropriate remedy in an Unjust Dismissal case under section 242 of the Canada Labour Code.

In Ly v Interior Health Authority ( 2017 BCSC 42 ) Justice Morellato found that a 38 year old manager with just over 2.5 months of probationary service was entitled to 3 months reasonable notice because the employer “did not meet its legal obligation to carry out a good faith assessment of Mr. Ly’s suitability for continued employment.”

The first issue facing the Court was the legality of the probationary clause which stated ” Employees are required to serve an initial probationary term of six ( 6 ) months for new hires.”

The Plaintiff argued that this provision was contrary to the BC Employment Standards Act which requires one weeks notice of termination  for employees who have 3 months service. Since the common understanding of the term ” probation” is that it allows termination  without notice, this provision offended the ESA and was thus invalid.

However this Judge saw it differently.

[50] Absent any express language to the contrary, a probationary term of employment is best understood as part of a contract of employment where: a) the employee is held to the requirement that for a specific period of time that employee must demonstrate certain suitability requirements set by the employer; and b) the employee may be dismissed without reasonable notice (subject to statutory minimums) if he or she does not meet the suitability requirements. If the employee meets the suitability requirements then, after that period of probationary assessment, the employee’s contract continues as a contract of employment wherein the requirements of just cause and reasonable notice apply.

[52] I have concluded that Mr. Ly’s employment comprised an express probationary term of six months duration coupled with the implied term as set out in Jadot: the employer’s contractual right to dismiss a probationary employee without notice and without giving reasons provided the employer acts in good faith in the assessment of a probationary employee’s suitability for the permanent position. However, the common law may be modified by statute and will not imply a term that is contrary to any legislated requirement or entitlement. Accordingly, the statutory entitlement found in ss. 63(1) of the ESA cannot be circumvented or breached by Mr. Ly’s terms of probation. In my view, however, no such breach occurred in the instant case.

[53] The statutory minimum found in ss. 63(1) of the ESA has not been circumvented or breached by Mr. Ly’s terms of probation simply because, as addressed above, there can be no implied contractual right of the employer to circumvent ss. 63(1) during Mr. Ly’s probationary period. The result is that a probationary employee is entitled to the benefits under ss. 63(1) of the ESA during the probationary period. In addition, the existence of the probationary period continues such that suitability also continues to be the standard until the probationary period is completed. In this case then, Mr. Ly was subject to a probationary period, along with the attendant standard of suitability, throughout the course of his short tenure with IHA.

In other words, the Judge interpreted  the meaning of probationary employment as incorporating the minimum statutory requirements of the ESA , so that what the term really meant  was that :

a) In the first 3 months of your employment we can terminate you without any notice .

b) For the balance of the probationary term in excess of three months we can terminate you upon providing you with the statutory minimums under the ESA.

Now if the clause had said something like ” The first 6 months of your employment are probationary therefore you can be terminated without notice at any time in this period” then of course the clause would be contrary to the ESA and thus be invalid. It is only because the probationary clause in this case  did not spell out the specific consequences of termination was the Judge able to read the text as being consistent  with the ESA.

In the secound issue the Judge  very closely examined whether the Plaintiff had been given a good faith assessment of his suitability for continued employment.

The  Judge first stated the legal test for a good faith assessment :

[57] As addressed above, the test for dismissal in the context of probationary employment is suitability. Just cause need not be established. An employer needs only to establish that it acted in good faith in its assessment of the probationary employee’s suitability: Jadot.

[58] In determining whether an employer acted in good faith, courts have examined the process through which the employer determines whether the employee is suitable for permanent employment. While an employer is not required to give reasons for the dismissal of a probationary employee, that employer’s conduct in assessing the employee is reviewed by the court in light of various factors such as:

1) whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment;

2) whether the employer acted fairly and with reasonable diligence in assessing suitability;

3) whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and

4) whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability:

In applying the test to the facts , the Judge spent an amazing 27 paragraphs detailing the reasons for concluding that the Plaintiff was not given a reasonable opportunity to demonstrate his suitability for the job.

Among the factors that influenced the Judge was the following:

1. The Plaintiff had requested in writing, early on, some feedback from his boss on to how he  was doing. Management did not respond to this request.
2. It was understood from the beginning that there was a steep learning curve to the job and that it would take 6 months to a year to learn the intricacies of the job, however he was fired after only 2.5 months.
3. A Ms Erickson, one of the people he was now managing, was well liked by the close knit group of employees . Ms Erickson  had acted as the interim manager before the Plaintiff was hired . She  had competed for the manager job, but lost to the Plaintiff. It seemed that the  employees under the Plaintiff staged a ” palace revolt ” and convinced the bosses that the Plaintiff should go, otherwise they might  all quit.  After his termination, Ms Erickson was appointed to the Manager position. The coup succeeded.

One lesson to be learnt in this case is that probationary clauses are of little use.

The better practice is to draft straight forward termination clauses  that allow an employer to terminate an employment relationship without cause upon payment of a easily ascertainable  amount that increases as seniority increases.

If such a clause had been in place in this case, the Court would have no lawful reason to inquire into the “why” of the termination and the parties would have been spared a four day trial.

 

 

 

In Miller v Integrated Health Clinic ( 2016 BCPC 440 CanLII) Provincial Court Justice Chettiar had to determine the proper notice period for a 23 year old part time  lab tech with 17 months service making  about $26,000 a year .

In a remarkable 16 page decision he made a number of interesting comments about the task of determining notice periods for short service employees in BC.

First of all these are his comments that the Judge made when presented with Court awards from common law provinces across Canada :

22. I agree with the Defendant’s counsel that it is not necessary to look to cases outside of British Columbia to draw comparables to the present case. There is nothing unusual in the Claimant’s circumstances that guidance cannot be drawn from other BC cases. Therefore, I will not address the non-BC cases the Claimant’s counsel refers to. Besides, the Defendant’s counsel says all of the cases the Claimant relies on are distinguishable from the case at hand.

More importantly he views that all the law regarding notice periods for short service employees starts with the 2009 decision of the BC Court of Appeal in Saalfiel v Absolute Software Corp ( 2009 BCCA 18 ) and that prior cases are not to be considered.

First of all, he says only three of the eight cases are British Columbia cases, and all three of them predate the Saalfeld case which clearly dispelled the notion that five to six months is the normal range of the notice period for short service employees. The court in Saalfeld at para. 15 said as follows:

[15] … the respondent [employee] submits that 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: [case citations omitted].

In the Saalfeld case the Plaintiff was 35 years old, and had 9 months service is a sales position. The Court of Appeal upheld the trial judges assessment of notice at 5 months, recognizing that she took 9 months to find a job.

In this case the Plaintiff was unemployed for 7 months. The judge found that her mitigation was reasonable .

One would have thought that the judge , having quoted Saalfed , would have followed it and awarded between 2 or 3 months notice.

After all Saalfeld was 35 years old and Ms Miller was 23, both young.

Saalfeld  had only 9 months service but Miller had almost double that time , namely 17 months .

Both had non-managerial jobs.

Saalfeld was unemployed 9 months, Miller 7 months .

Oh, by the way, Ms Miller was terminated as soon as she came back from her maternity leave. Great time to be looking a for a job.

What did Justice Chettiar award as notice : 6 weeks.

Quere? Why quote your own Court of Appeal and then not follow it ?

 

In Krishnamoorthy v Olympus Canada ( 2016 CarswellOnt 18204) Justice Dow had a situation where the Defendant purchased another company ( Carsen Group)  and offered employment to 99% of the predecessor company’s employees, including the Plaintiff.

At the time of his termination the Plaintiff was 58 years old, held the position of Executive Director of Finance and was employed a total of 15 years with the two companies.

The terms of the offer are set out in the decision as follows :

To that end, the defendant provided an offer of employment to the plaintiff on November 30, 2005 outlining the terms of employment which maintained the exact terms of the plaintiff’s employment with Carsen Group Inc. including:
a) transition payments for bonus calculations for pre Olympus employment in 2006;
b) that the “job will likely evolve and change over time”;
c) termination without cause will pay the greater of Employment Standards Act severance pay or four weeks’ pay per year up to a maximum of 10 months if a release is signed for service with Olympus or Carsen Group Inc. (with pay defined as annual salary divided by 52);
d) a mandatory retirement requirement at age 65 (not yet declared void by application of the Ontario Human Rights Code);
e) a severability clause permitting the balance of the agreement to remain in the effect if a particular clause is unenforceable;
f) the employee understands the terms of the agreement that he or she was to “be treated as a new employee” without reference to the opportunity to get legal advice; and
g) a release of not only the defendant from any “further claims but also for any claims against Carsen Group Inc.

During the course of his employment with Olympus, the Defendant acted in a way so that his prior service was in fact recognized.  For instance they

a) Gave him a 10 year plaque after only 5 years with Olympus but recognizing that he joined Carsen 10 years prior.

b) His Total Compensation Statement in 2014 showed that his date of hire was 2000, the year he joined Carsen.

c) His first payroll statement after Olympus purchased Carsen carried over his sick day and vacation credits.

Interestingly, with some other employees Olympus paid significant signing bonuses to get them to sign employment contracts , but alas the Plaintiff did not ask for nor receive such a bonus . He just kept his job exactly like it was before, except now he had agreed to a severance payment considerably less than his common law entitlement .

Then Dow J, had to decide whether the contractual termination clause was valid . He said as follows:

Issues — Validity of Termination Clause
8 .The defendant takes the position its employment agreement of November 30, 2015 is enforceable and rejects the variety of submissions made by the plaintiff to the contrary, The most compelling submission by the plaintiff is that the defendant failed to provide him with valid consideration for waiving his previous right to reasonable notice damages upon termination without cause, The plaintiff submits the employment was continuous and relies on the Employment Standards Act, 2000, S.O. 2000, c. 41 and Section 9(1) which provides for the employment being deemed to include the time that accrued with the seller of the business by the employee who continued with the purchaser of the business. In my view, the defendant did recognize this issue in the employer agreement but limited it to (10 years or 10 months’ notice).
9. The defendant submits the offer of employment was (sufficient) consideration. However, this appeal’s to be contrary to the conclusion reached by the Court of Appeal in Hobbs v. TDI Canada Ltd., [2004] O.J. No. 4876 (Ont. C.A.) where Justice Juriansz (at paragraph 42) states:
The requirement of consideration to support an amended agreement is especially important in the employment context where, generally, there is inequality of bargaining power between employees and employers.
10. The defendant points to the fact it is not the same employer as the plaintiff was working for and thus the employment agreement has not been “amended”. In my view, there are too many similar factors in the situation at hand to distinguish it in this way. That is, the remuneration, the duties to be performed, the substance and the nature of the business all remained the same. The only thing that changed would appear to be the employee’s right to reasonable notice on termination without cause.
11. I am reinforced in this conclusion by the position the defendant takes with respect to it honouring the plaintiff’s prior service with Carsen Group Inc. as well as the fact the defendant did pay (and likely wisely and more economically) some of the Carsen Group Inc. employees it recruited a signing bonus as part of securing their services,
12. In my view, my conclusion is also consistent with the rationale of the Court of Appeal in Holland v. Hostopia.Com Inc., 2015 ONCA 762 (Ont. C.A.) where the Chief Justice states; (at paragraph 53)
The law in this respect is a matter of simple fairness. It is also a matter of sound employment practice.
13. The result is the plaintiff is entitled to reasonable notice of termination at common law.

The Judge also made some interesting comments about the application of the Bardal factors in determining reasonable notice under the common law .

In relation to the character of employment  he wrote :

16, Regarding the character of the employment, it is not disputed that at the time of termination, the plaintiff was performing a senior executive role with the defendant. He was one of the few employees with signing authority. However, although not referenced by counsel in submissions before me, I understand that the principle of greater notice for highly skilled positions and less notice for clerical or unskilled work is of “declining relative importance” (Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (Ont. C.A.) at paragraph 27): Thus, this is not as strong a factor for a longer period of notice as it has been in the past.

This is the first time that I am aware of that the Di Tomaso case has been used to lower the notice period of executive rather than increase the notice period of a lower paid employee. This comment will likely further weaken the importance of character of employment in assessing reasonable notice .

In relation to age ( the Plaintiff was 58 at the time of termination ) he wrote :

18. Regarding his age, while the plaintiff would use this as a factor for a longer period of notice, it is presumably on the basis the plaintiff is unlikely to be rehired at this “older” age. In my view, the trend is in the opposite direction, that is not only do the demographics support individuals working longer in this Province but the abolition of a mandatory retirement age provides for this to occur. To the contrary, the parties have agreed that the plaintiff has taken all necessary steps to mitigate his claim by seeking alternative employment and no consideration need be made for dealing with an award that extends beyond the present.

I guess that todays’ age 58 is like yesterdays’ age 48. That mean that I am really only 53.

The Judge found that reasonable notice was 19 months.

The Defendant has filed an appeal.

I know this because Plaintiff ‘s counsel is my son, Matthew Fisher, a partner at Lecker & Associates.