Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 (CanLII), <https://canlii.ca/t/jt787>
The plaintiff-employee appealed the trial judge’s decision to deduct CERB payments from her damages award for wrongful dismissal (and to decline to award punitive damages). The BCCA allowed the appeal with respect to the CERB payments, applying the Supreme Court of Canada’s decision in IBM Canada Ltd. v. Waterman, 2013 SCC 70. That decision arose in the context of pension benefits. The Supreme Court of Canada noted: “a potential compensating advantage problem exists if the plaintiff receives a benefit that would result in compensation of the plaintiff beyond his or her actual loss and either (a) the plaintiff would not have received the benefit but for the defendant’s breach, or (b) the benefit is intended to be an indemnity for the sort of loss resulting from the defendant’s breach.” The Court of Appeal noted that “The purpose of the CERB Act was to provide emergency aid to Canadian workers who lost all or a significant portion of their income for a variety of reasons related to the pandemic” (para. 41). The Court of Appeal found that CERB payments were similar to EI benefits (Jack Cewe Ltd. v. Jorgenson, [1980] 1 S.C.R. 812, 1980 CanLII 177). The Court concluded:
[62] Overall, the underlying logic of the compensating-advantage problem addresses a situation in which the individual employee is better off after their employer’s breach than before. I cannot conclude that this is the result if CERB is not deducted. CERB was an emergency measure delivering financial aid during the early weeks and months of an unprecedented global pandemic. The program’s goal was to mitigate harm to individuals in a moment of great uncertainty. CERB payments notwithstanding, many people lost their livelihoods as a result of the pandemic. It strikes me as out of step with that reality to conclude that the combination of CERB and damages awards leaves individuals “better off” after their employment was terminated than before.
It is a matter between the individual and the appropriate authority and should not result in a windfall for the employer.