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TERMINATION JUSTIFIED – GM CHARGED PERSONAL EXPENSES TO COMPANY
The court concluded: Although the total amount of the Parksville restaurant dinner and breakfast receipts (approximately $250) was relatively small, the misconduct went to the very root of the plaintiff’s employment relationship with the defendant. He was in the most senior management position at the defendant. His position commanded a high level of authority, responsibility, and trust. He breached that trust by submitting false expense receipts and thereafter being untruthful about them when given an opportunity to explain them on July 11, 2022. Moreover, he failed to “come clean” when he had a second opportunity to do so during the meeting on July 13, 2022. His conduct was such that the defendant’s loss of faith and trust in him was justified.
read moreEMPLOYMENT STANDARDS DECISION DID NOT BAR THE PLAINTIFF FROM PURSUING WRONGFUL DISMISSAL ACTION
The Court found that there were significant differences between the Employment Standards Branch proceeding and the action action before the Court, which required a trial. The purpose of the Employment Standards Act was limited. In the circumstances, to apply issue estoppel would prevent the plaintiff from pursuing his claim—a claim involving significantly more in damages than he could receive in the Employment Standards process. The Court concluded that it would be unjust to apply the doctrine of issue estoppel. Justice requires that the plaintiff be entitled to pursue his claim for wrongful dismissal in court.
read moreFAMILY STATUS UNDER BC HUMAN RIGHTS CLARIFIED – CHANGE OF TERMS OF EMPLOYMENT NOT REQUIRED
The Court concluded that for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.
read moreOntario Court of Appeal: COMPANY TERMINATED INDEPENDENT CONTRACTOR AGREEMENT – DUTY TO EXERCISE RIGHT TO TERMINATE IN GOOD FAITH
The Court of Appeal noted (para. 17) that the trial judge referred to evidence of the “respondent’s understanding that there would be an element of good faith in the exercise of the provision by the appellant, and found that this understanding was supported by the law from the Bhasin decision of the Supreme Court. He concluded that the appellant breached the ICA by terminating it in the way and the circumstances that he did.” The Court went on and stated: “I agree that although the appellant had a facially unfettered right to terminate the contract, it had an obligation to perform the contract in good faith and therefore to exercise its right to terminate the contract only in good faith.” [para. 18, underlining added.] The plaintiff had disclosed his criminal conviction prior to entering into the contract. Accordingly, the termination of the ICA one month later was not a good faith exercise of its contractual discretion. The ONCA decision was followed by the BC Supreme Court in Lightstream Telecommunications Inc. v. Telecon Inc., 2018 BCSC 1940, 2018 CarswellBC 2987, 301 A.C.W.S. (3d) 293, 87 B.L.R. (5th) 130.
read morePub manager with 23 years service terminated during Covid – Contract not frustrated – was entitled to 20 months notice
A 56-year-old pub manager with 23 years of service was laid off when the pub closed due to Covid restrictions. Unlike other pubs, it did not re-open when restrictions were relaxed. The Court did not agree that the employment contract had been frustrated. The Court concluded “having regard to the appropriate Bardal factors applied to Mr. Fanzone’s circumstances, the appropriate notice period required to be given by the Pub for the termination of Mr. Fanzone’s employment without cause was 20 months” (pare. 35). Despite the pub’s reprehensible conduct, which included a fabricated claim of theft with respect to vacation pay, the Court did not award punitive damages.
read moreUNFAIR LABOUR PRACTICE COMPLAINT UNDER PART 1 OF THE CANADA LABOUR CODE NOT SIMILAR TO UNJUST DISMISSAL COMPLAINT UNDER PART 3 – CIRB HAS JURISDICTION
The Board did not accept WestJet’s argument that the amendment was not credible. Accordingly, no procedure for redress is available to her under Part I of the Code, noting that the complainant’s unjust dismissal complaint was wholly devoid of any allegations or evidence related to her union activity. In the case at hand, the complainant and the union did not believe that redress was available under Part I once they had reviewed WestJet’s response to the Part I complaint and interim relief application. The complainant explicitly states that the Part I complaint was withdrawn based on this conclusion.
The Board concluded that that the two complaints related to the termination of the complainant’s employment were not essentially the same. The Board had jurisdiction to hear the complaint.
read moreEMPLOYER ESTOPPED FROM DEFENDING WRONGFUL DISMISSAL
A former employee, who had been dismissed for cause, brought a successful employment standards complaint with respect to the dismissal. He also brought a wrongful dismissal action, defended on the basis of just cause. The plaintiff sought to have the defence struck as res judicata pursuant to Rule 9-5(1)(b) and (d). The complaint and civil action were commenced contemporaneously. Both parties had counsel although the defendant elected not to be fully represented for the employment standard process and elected to represent himself with the assistance of counsel for economic reasons and the small amount at stake in the complaint. The Court did not have much sympathy for the argument.
read moreCHEF NOT CONSTRUCTIVELY DISMISSED – ACTED PRECIPITOUSLY
The Court concluded that the plaintiff was precipitous in resigning without allowing time to determine how the changes might affect his responsibilities.
read moreCRIMINAL CODE SCREENING OF SEX ASSAULT VICTIMS UPHELD
In 2018 Parliament enacted sections 278.92 to 278.94 of the Criminal Code to address the barriers that had prevented victims of sexual offences from making complaints to police. These provisions created a screening regime to protect the complainants’ interests in their own private records when an accused, who possessed or controlled such records, wanted to have them admitted at a hearing in their criminal proceeding. The screening regime procedures and criteria aided an application judge to determine the admissibility of such records in balancing the rights and interests of the accused, the complainant, and the public. The new procedures also gave complainants additional participation rights in admissibility proceedings. Some, of the same procedural elements of these provisions were also to be applied to s. 276 evidence applications regarding the admissibility of evidence of complainants’ prior sexual activity or history. In view of Parliament’s objective and underlying logic for the enactment of the record screening regime, the Court concluded that sections 278.92 to 278.94 did not apply more broadly to other types of defence evidence. Section 278.93 was constitutional under sections 7 and 11(d) of the Charter for two reasons: the accused was not compelled to testify so section 11(c) was not engaged; and there was no absolute rule against defence disclosure.
read moreBC COURT OF APPEAL: NO TORT OF “BLACKLISTING”
The Court of Appeal held that the chambers judge erred in striking the claims for misfeasance in public office, conspiracy and breach of s. 2(b) of the Charter. However, the chamber judge did not err in striking the novel tort claim of “blacklisting”. The Court of Appeal based its decision on the lack of sufficient pleading and the lack of legal authority for the proposed tort. The Court of Appeal found there was no tort of blacklisting in existence in the common law world, nor had such a tort been proposed in any common law academic text or other commentaries. Allowing the tort of blacklisting would amount to creating a new law which is solely the legal purview of the legislature.
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