Decisions
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 moreEMPLOYEE’S REFUSSAL TO RETURN TO WORK – FAILURE TO MITIGATE
[112] …. in the circumstances of this case, a reasonable person in Ms. Blomme’s position would have accepted Princeton’s offer. Although the specific terms of her re-employment were not set out in Mr. White’s October 8, 23, and 26 emails, it was incumbent on her to at least explore the option of returning to work. Ms. Blomme was being asked to return to the same position, salary, and benefits, which had never been cut off: …. There was no evidence to support that she would be returning to an atmosphere of hostility, embarrassment, or humiliation. ….
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 moreTermination for “carwash” contrary to city policy not proportional
The Court concluded that the City did not have cause. The Court found that the “misconduct was not inherently dishonest or deceitful. [He] did something he knew was wrong. His misuse of the municipal wash facility only became known because someone saw him do it. However, he did not steal from the City, and he did not lie to his supervisors” (para. 57). In McKinley v. BC Tel, 2001 SCC 38, the “Supreme Court of Canada set out a contextual analysis for determining the existence of just cause for dismissal. The Court underscored the need for proportionality in terms of striking a balance between the employee’s misconduct and the sanction imposed” (para. 31).
read moreTermination Clause Not Vague and Unenforceable – Great Care Required When Drafting Employment Contracts
[22] I find the Termination Clause to be clear. It states that upon termination without cause, Ms. McMahon would receive the greater of, under subparagraph (a), notice or pay in lieu of notice prescribed in the ESA and, under subparagraph (b), two weeks or more notice or payment in lieu of notice based on base pay only. The use of the word “and” in between clauses (a) and (b) does not detract from the ordinary meaning of the words “greater of” which precedes these paragraphs, being that Ms. McMahon would be entitled to the greater of the notice or pay in lieu of notice provided for in each of those options.
[23] With respect to the word severance, the Termination Clause is clear in that severance is used to define the notice Ms. McMahon would be entitled to under subclause (b) only. The defined term severance follows immediately at the end of subclause (b). As a result, the fact that severance under subclause (b) only includes payment of base salary for a minimum of two weeks does not offend the ESA. Simply put, Ms. McMahon is entitled to notice under whichever of the two options is better for her. I do not find that to determine her entitlement to notice or pay in lieu of notice requires that Ms. McMahon would be required to perform complex calculations, as she alleges.
read moreEmployment Contract Silent About Group Terminations
The Court’s reasoned that the purposes of s. 63 and s. 64 were different. First, “in order to oust the common law entitlement to reasonable notice, a contractual term must meet the minimum statutory requirements set out in s. 63. The s. 64 notice requirements, being additional statutory rights not found in the common law, do not establish the minimum standard that is required to oust an employee’s common law entitlement to reasonable notice.” (Para. 40). Second, the fact that the termination clause was silent with respect to group terminations did not make the clause unenforceable: see Nemeth v. Hatch Ltd., 2018 ONCA 7, and Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA). The Court noted: “the Termination Clause is similar to the clauses in Roden and Nemeth in an important way: like the termination clauses in those decisions, the Termination Clause does not purport to expressly exclude any statutory notice requirements. In my view, the similarity is most instructive and distinguishes this case, as Roden and Nemeth were distinguishable, from the decisions in Machtinger, Shore, and Rutledge v. Canaan Construction Inc., 2020 ONSC 4246 [Rutledge], a third decision relied on by Mr. Forbes.” (Para. 60). In Nemeth, the Ontario Court of Appeal “concluded that the silence on severance pay did not denote an intention to contract out of Ontario’s employment standards regarding additional severance pay, and thus the termination clause was not void.”
read moreWrong Way to Terminate and Litigate Lands Airline in the Soup
The Court found that while Chu’s length of service, as an employee, was eight years, his services as a contractor should not be ignored. He was 68 at the time of termination. There was no reasonably comparable employment available to the plaintiff and he ended up working as a DoorDash delivery driver. In the circumstances, 20 months’ notice was appropriate.
The Court concluded that CSA’s conduct met the threshold for punitive damages. CSA’s conduct could comfortably be described as “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.” The conduct included the employer’s conduct throughout the litigation, making “vicious, vindictive, and unfounded allegations that it knew or ought to have known could not be supported,” and compelling the Plaintiff to make “multiple pre-trial applications to enforce compliance with its obligations as a litigant,” designed to frustrate the Plaintiff’s claim. The compensatory damages were relatively modest, approximately $108,000. In the result, the Court awarded $100,000 in punitive damages.
Ontario 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 moreBCCA: CERB BENEFITS NOT DEDUCTIBLE FROM WRONGFUL DISMISSAL DAMAGES
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.
read moreBC Human Rights Tribunal: Injury to dignity award $150K
RR was an Afro-Indigenous woman, a single mother of five children, one of whom passed away at an early age, and three with have complex needs. She was low income and in insecure housing. The Tribunal described her as an inter-generational survivor of residential schools with disabilities stemming from trauma, resourceful, affectionate, a leader in her community, connected to her culture, and loved her children. In August 2016, VACFSS apprehended RR’s four children. For nearly three years, VACFSS retained custody over the children and strictly regulated RR’s access to them. RR complained that “VACFSS based its decisions about her ability to parent on stereotypes about Indigenous single mothers and assumptions about her mental health and addictions.” She alleged discrimination based on her race, ancestry, colour, and mental disability, in violation of the Human Rights Code. Adopting an “intersectional approach,” the Member concluded that the “discrimination in this case was the effect of a wider web of laws, policies, and practices which interact to create a system stacked against Indigenous families, especially single mothers living in poverty, with disabilities, and with children with disabilities.” Injury to dignity: $150K.
read moreBAD FAITH CONDUCT BY EMPLOYER AFTER TERMINATION – PRICE TAG: $25K IN AGGRAVATED DAMAGES AND $35K IN PUNITIVE DAMAGES
However, the court did award aggravated and punitive damages. The defendants’ bad faith conduct did not result in the extreme consequences. Fobert’s mental distress was quite intense initially, with the help of counselling and no doubt her own resilience, she improved and recovered quickly. In light of the compensatory purpose, the court awarded her $25,000 in aggravated damages. At the same time, the court considered that, despite the award of aggravated damages, punitive damages were also necessary to effectively deter and also to denounce the range of misconduct in this case. Applying the principle of proportionality and considering the facts relevant to the relevant dimensions, the court awarded $35,000.
read moreEMPLOYER CONSTRUCTIVELY DISMISSED EMPLOYEE ON MATERNITY LEAVE – CONTRAVENED HUMAN RIGHTS CODE
THE TRIBUNAL REASONED: In Bateman v. Prime Time Sports, 2012 BCHRT 230, the Tribunal explained that discrimination may be established where an employer terminates the complainant’s employment while on a Code-protected leave because it prefers their replacement. But for the leave, the employer would have no opportunity to prefer a replacement employee: paras. 70-80. While Mr. Wall had not worked with Ms. LaFleche, his successful working relationship with Ms. Callahan arose only because of Ms. LaFleche’s maternity leave. The only conclusion can be that Ms. LaFleche’s maternity leave was a factor in her removal from her role and in the constructive dismissal. Neither would have happened but for the Code-protected leave.
read moreHUSBAND INSERTED HIMSELF INTO EMPLOYMENT DISPUTE – TERMINATION DID NOT CONTRAVENE THE BC HUMAN RIGHTS CODE
The Tribunal found that the respondents terminated her employment because of the behaviour of her husband over the course of the text exchange between her husband and Sager related to her illness and absence. The respondents took the text messages to be threatening, including calling Sager “fuckin piece of shit!” The Tribunal noted that, while the termination might constitute wrongful dismissal, it did not violate the Code.
read moreESSENTIAL CHARACTER OF DEFAMATION AND CONSPIRACY CLAIM SUBJECT TO THE DISPUTE RESOLUTION IN THE COLLECTIVE AGREEMENT
“In Phillips v. Harrison, 2000 MBCA 150, the Manitoba Court of Appeal determined that defamatory statements are work‑related and subject to collective agreement arbitration considering: (1) the comments concern the employee’s character, history, or capacity as an employee; (2) the comments were made by someone whose job it was to communicate a workplace problem; and (3) the comments were made to persons who would be expected to be informed of workplace problems. While the BCCA noted that “the Phillips framework is a useful, but not exclusive, means of examining whether defamatory statements are subject to mandatory dispute resolution procedures within collective agreements. The broader Weber framework continues to govern.” Even if the Phillips framework did not indicate that defamatory statements are work‑related, it is necessary, for the court to “dig deeper to determine if the defamatory statements nevertheless arise out of the interpretation, application, administration or violation of the collective agreement.” [para. 36]”
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 moreCanada Labour Code: other procedure for redress – Canada Human Rights Act
The Board found that “… that the complainant’s human rights complaint is substantially similar to his unjust dismissal complaint … that the human rights complaint mechanism and the broad remedies available under the Act provide real redress which could be of personal benefit to the complainant.” Accordingly, the Board was precluded from considering the present unjust dismissal complaint pursuant to section 242(3.1)(b). However, the CHRC could refer the complaint to the CIRB
read moreCANADA LABOUR CODE – EMPLOYMENT CONTRACT FRUSTRATED – EMPLOYEE DID NOT RESPOND TO THE EMPLOYER ABOUT ABILITY TO RETURN TO WORK
It is important to note that the complainant in this case did not respond to the termination letter from ZoomerMedia to provide updated medical information to correct any possible misunderstanding on the part of the respondent about her ability to return to work. In addition, the complainant has not provided medical information as part of the unjust dismissal complaint or in her submissions to the Board that would establish a change in circumstances such that there was a likelihood that she could return to work. The complainant has not asserted that she is able to return to work, and there was no evidence from her to challenge the respondent’s conclusion that she would not be able to return to work in the foreseeable future.
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.
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