Court Criticizes Employers’ Failure to Assist Employee’s Job Search:

In Summers v. Oz Optics Limited, 2022 ONSC 6225, Justice Hackland awarded 6 months notice to a 61 year old draftsperson with only 3.5 years service.

The defendant argued that there was was a failure to mitigate. They relied on the fact that he had not applied to a number of jobs that were only presented to him at the trial.

The Judge was not impressed. The judge commented on the Defendants’ tactic as follows:

“On the other hand, the record does make clear, as
noted previously, that the Respondent has been of no assistance to the Applicant in his reemployment efforts.”

“As there is anissue concerning an alleged failure to mitigate, discussed below, I would note that the employer seems to have done nothing to assist the Applicant in transitioning to new employment. In particular, he was terminated summarily and escorted off the premises in front of other employees. This did not allow the Applicant an opportunity two preplan his job search or to investigate alternative employment in advance of termination. The employer has not provided a letter of reference nor was any assistance offered by way of career transition counseling. The employer has not offered to waive the non-solicitation provision in the employment agreement.”

My Comments:

In my mediations I sometimes find that the employers who do the most to criticize the Plaintiff’s job search efforts do the least to help the Plaintiff find a new job.

The best way for an employer to lessen the cost of termination is to help the Plaintiff get a job. These are some of the things that will impress a court that the employer is a mensch and not a jerk:

1) Don’t allege just cause solely as a litigation tactic .

2) Provide as positive a letter of reference as you can at the time of termination.

3) Provide appropriate relocation counselling without having it tied to a release.

4) Pay out the ESA minimums immediately.

5) Send job leads to the plaintiff in a timely fashion, not just at the trial .

6) I admit this somewhat controversial, but consider paying out what you think is reasonable notice without a release, or better still keep the employee on salary continuance for what you think is reasonable notice.

7) Waive or at least limit any non compete or non solicit agreements.

8) Handle the termination itself in a way that shows respect and an understanding about how devastated the employee feels. Do you really have to take his cell phone that day ?

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Municipal Supervisor Using City Washing Facilities to Wash His Own Truck Not Just Cause :

In  Stevens v. Port Coquitlam (City), 2022 BCSC 2090 Justice Elwood had a situation where a supervisory employee of 7 years ( most of which was in the union) was terminated because he used a municipal facility to wash his own truck, contrary to city policies.

He did not deny this use and acknowledged that he was wrong.

The major issue was whether or not this incident was sufficient cause so that discharge was an appropriate remedy. This is what the Judge said :

[87] However, I find that the City had other sanctions available that could have achieved its legitimate objectives. The City could have suspended Mr. Stevens without pay. It could have required him to attend remedial training. The City also could have convened an employee meeting and used this incident to emphasize the importance of the policy on the use of municipal equipment, even in less serious cases than the copper thefts. It could have required Mr. Stevens to lead the meeting. 

[88] The 2020 Incident reflected poorly on Mr. Stevens’ management skills. However, I am not persuaded the employment relationship was damaged beyond repair. Mr. Stevens was relatively new to management. He needed coaching in the leadership aspects of his position. There is no evidence that he was uncoachable in this regard. Even with a second breach of policy, I am not persuaded his behaviour could not be corrected with a clear warning and
appropriate discipline. 

[89] In short, I find that summary dismissal was not a proportionate response to the misconduct. A reasonable employer informed of the relevant circumstances would not conclude that the employment relationship was damaged beyond repair. 

My Comment:

In my mediations I sometimes find that Plaintiff’s counsel try to defend the indefensible when it comes to their clients’ obvious misconduct. They try to deny clear facts or shift blame to others. This feeds into the employers’ view ( and the Courts’ view) that the employee is beyond rehabilitation if he will not even admit his actions were wrong.

This case shows that it is smarter to simply argue that the punishment does not fit the crime. Taking a company pencil home is not the same as stealing a company truck. There is little reason that an employer cannot issue a short disciplinary suspension for misconduct. Denying or reducing a discretionary bonus may also be a a lesser penalty for misconduct.

Judges and arbitrators seem to love expressions of true remorse made before the dismissal .

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BC Court of Appeal Rules That CERB is NOT Deductible from Wrongful Dismissal Damages :

In Yates v Langley Motor Sport Centre Ltd ( 2022 BCCA 398) Justice Bauman finally definitively answered the issue of whether or not CERB payments received by a terminated employee are deductible from wrongful dismissal damages that cover the same time period .

The answer was NO, they are not deductible and thus the windfall goes to the benefit of the employee, not the employer.

The analysis was largely based on social policy. The concluding words say it all:

“Whether the payments are in the end to be repayable by the plaintiff is of no concern to the defendant employer. It is a matter between the plaintiff and the authorities administering the plan .”

This is the first appellate decision on this issue, and as this is a federal law, it is my understanding that all lower courts in Canada are obligated to follow it.

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Employer Loses on Just Cause and Pays $50,000 in Bad Faith Damages in Part Because of Improper Investigation:

In Rutledge v Markhaven ( 2022 ONSC 3183) Justice Dow awarded 22 months notice to a 43 year old Executive Director of a long term care home with just under 21 year service .

The Defendant alleged just cause because they claimed that she had breached her fiduciary duty by agreeing with a service provider of the Defendant to promote one of their employees who worked in the defendant’s premises  with whom she was having a romantic relationship. However it was determined by the Court that :

  1. No such relationship existed at the time of the promotion
  2. The Plaintiff disclosed the relationship at the time to  the HR department and that the Board of Directors knew about the relationship a short time later.
  3. The Board took no action regarding this matter until months later and only  when an employee complained.

The Judge therefore found that the Board of Directors condoned the Plaintiff’s actions. When asked in the investigation whether she had been romantically involved, the Plaintiff admitted it .

The interesting part of the case is the Judge also awarded $50,000 for bad faith damages . This seems to be largely based on the manner in which the Defendant conducted their investigation. The Judge noted the following concerns:

  1. Although the Plaintiff was told that the investigation would be conducted by an independent third party, it was in fact conducted by a “investigation business associated with defence counsel”
  2. The defendant secured information from the Plaintiff without her prior knowledge.
  3. It conducted parts of the investigation at a local Tim Hortons where many of the Defendants went for coffee, thereby failing to conduct the investigation in a confidential manner.
  4. ” Portions of the investigation file were not produced under the guise of solicitor – client privilege.”
  5. The scope of the investigation was expanded.

The Plaintiff went on disability leave prior to her dismissal and led evidence that her psychological condition was caused by the investigation.

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

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Court Awards Costs of $429,654 Against Employer Who Lost Motion for an Interlocutory Injunction:

In Aware Ads Inc. v. Walker 2022 ONSC 6121 , Justice Centa assessed costs in an action where the Plaintiff former employer was suing the Defendants ex employee and the new employer seeking to prevent Walker from joining the Plaintiff’s competitor.

Costs were awarded on an elevated scale for the following reasons:

1.No basis or reasonable grounds to bring the motion ;

2.It failed to demonstrate a strong prima facie case to support its serious allegations;

3.The Plaintiff initially sought extraordinarily broad relief, such as a Mareva and Mills order, a CPL, and discovery aid of injunction and inspection order. It withdrew these reliefs only after delivering its factum. It then revised the relief sought several times thereafter.

4.The relief sought was viewed as an effort to “punish” the Defendant instead of protecting legitimate business interest.
5.For one of the Defendants, it completely abandoned all relief sought after putting him through significant expense and time.

It is important to note that the Plaintiff had previously sought an interim injunction along the same lines , which was also dismissed. They then tried to get a second kick of the can by way of this interlocutory injunction and failed miserably.

Quere: Will they still proceed to trial to seek a permanent injunction after having to pay almost half a million dollars in costs ?

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

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Prior Service to Bankrupt Employer Considered in Notice Period:

In Chin v Beauty Express Canada Inc., 2022 ONSC 6178 Justice Morgan had a situation where the Plaintiff, a 69 year old aesthetician , worked first for 14 years for Company A , which then went bankrupt, and then 6 years for the Defendant. She worked inside a Bay store so after the change in employer her bosses and her work location stayed the same.

When deciding the length of service upon which to assess notice the two choices proposed by the parties was 20 years or 6 years. The Judge rejected both of those choices and instead examined what advantage the Defendant had when it hired the Plaintiff who already had 14 years experience on the job. The judge concluded that given the limited skill set involved in the job, she should only get one half of the notice that she would have got if she had been a 20 year employee. He thus awarded the Plaintiff 10 months notice.

My Comments:

The important thing to realize about this case is that the break in service was due to a bankruptcy and not a sale of either shares or assets . Therefore the law is clear that the bankruptcy ended her employment with Company A and that the Defendant was not a successor employer, either under the common law or the ESA.
However, in this situation the Judge was still prepared to give consideration to the fact that the Defendant in effect inherited an experienced employee and thus saved the time and expense of training a new employee.

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CLC Adjudicator Has No Authority to Reinstate to a Different Position :

In Miawpukek First Nation v. Howse, 2022 FC 1501 (CanLII) Justice Furlanetto reviewed the decision of an adjudicator under the Unjust Dismissal section of the Canada Labour Code who, having found that the complainant had been unjustly dismissed from her position of Director of Training & Development, ordered her reinstated but to any position other than her former position. The Adjudicator also imposed a set of conditions on her reinstatement , including a one year probationary period, that she not supervise anyone and that she take training.

The Federal Court determined that the Adjudicator had exceeded their jurisdiction and that the power to reinstate was limited to the same position that the complainant held at the time of termination.

My Comment :

It seems that if the adjudicator finds that reinstatement is not appropriate, then the only remedy would be a payment in lieu of reinstatement as it is not within the power of the adjudicator to require the employer to either create a position or displace an innocent employee from their position so that the complainant can be reemployed.

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

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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.

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

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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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