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Termination 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).

Termination 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.

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.

BCCA: 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.

BAD 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.

POLICY REQUIRING MANDATORY VACCINATION NOT CONTRARY TO CHARTER – NO INJUNCTION

The applicants have failed to establish a strong prima facie case, which as I have found they must do here in order to succeed on the first prong of RJR.
With respect to irreparable harm, the evidence shows that the harms the applicants allege – diminishing memory of their courses, emotional distress, and earning a lower income while waiting to complete their courses – are exaggerated or misstated, are in large measure self‑made, and are not in any event irreparable in that they are quantifiable in monetary terms or can be cured.
In Sinai Health, Akbarali J. held that the balance of convenience and particularly the public interest weighed in favour of maintaining a mandatory vaccination policy and against the request for an injunction. Her Honour noted the medical evidence that the vaccines provide “a higher level of protection than regular antigen testing would afford” and accepted TTC’s evidence that based on “its experience, and the best scientific and public health information available …it would face greater risk to the health and safety of its workforce and its riders if it is required to permit unvaccinated employees to continue to attend the workplace”. Akbarali J. found, and I agree (substituting Seneca for the TTC), that by acting in compliance with public health guidance, TTC conducted itself in a fashion which the Court must assume is “in the public interest, especially in a pandemic”: at para. 107.

COVID CASE – Alberta Queen’s Bench – UNPAID LEAVE OF ABSENCE DUE TO MANDATORY MASK POLICY IS NOT CONSTRUCTIVE DISMISSAL

In Benke v. Loblaw Companies Limited, 2022 ABQB 461, the Alberta Court of Queen’s Bench, handed down July 5, 2022, ruled that a former employee, the plaintiff, who had a received work absence certificate from his doctor to the effect that he was unable to wear face mask as per City’s mask by-law due to illness. The employee had worked for the employer for some 18 years. The defendant employer later adopted mandatory mask policy that applied to all its stores in Canada. The employee sought an exemption based on a form completed by doctor that had check mark beside statement “is unable to wear a face mask” but words “due to the following medical condition/s or disabilities” were crossed out. The employer placed the employee on indefinite unpaid leave because he refused to wear mask in stores without medical justification and thereby did not comply with mask by-law and mask policy. The former employee brought action for wrongful (constructive) dismissal seeking damages in lieu of notice. The Court dismissed the action following a summary trial.

SURREPTITIOUS RECORDINGS IN THE WORKPLACE – CAUSE FOR DISMISSAL

On the plaintiff side, the issue of surreptitious recordings comes up often. In support of their grievances or concerns, employees sometimes turn to surreptitious recording conversations, meetings and other events in the workplace. The modern cell phone is a useful and readily accessible tool. Aside from the difficulties, often garbled and unintelligible information – who’s who? saying what – the costs of proper transcription, reliability, authenticity and verification etc., there are certainly ethical issues in such conduct. In this case, the Court concluded that such conduct justified the termination of the employee. The employee was a professional (CPA), in a senior position, who, as well, was bound by professional standards of his profession. Whether it applies more broadly remains to be seen.
In Shalagin v Mercer Celgar Limited Partnership, the plaintiff, a CPA, commenced employment with the employer as a financial analyst in January 2010. He was later promoted to senior analyst. There was no written contract governing his employment relationship. However, the plaintiff agrees that he was bound by Mercer’s policies including: a Code of Business Conduct and Ethics; and a confidentiality policy. He also agreed that he was bound by CPA’s Code of Conduct. In March 2020, he was terminated without cause after a disagreement about discrimination and the 2019 bonus.

Moore test applies to alleged discrimination in family status cases

The Alberta Court of Appeal concluded that “the Supreme Court of Canada mandates that it is at the later justification stage, after prima facie discrimination has been established, that the onus shifts to the employer to show alternative approaches were investigated, and the prima facie discriminatory conduct was “reasonably necessary” in order to accomplish a broader goal. “In other words, an employer or service provider must show ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual’” [citations omitted]: Moore at para 49; Meiorin at para 38.” The Court concluded that “Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. The Supreme Court of Canada has set the test for prima facie discrimination, without limitation, and without evidentiary embellishments. In Alberta, the debate must end: the test for prima facie discrimination ought to be exactly the same whether in the context of direct or adverse effects discrimination based on prohibited grounds, or in cases advanced under human rights legislation or under a collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary gradations of the same test, beget inequality.”

EMPLOYER COVID POLICIES – ENFORCEABLE OR NOT

Although the “jury” is still out, carefully crafted employer policies with respect to vaccination covid – 19 may be upheld by arbitrators, boards, tribunals and courts. Among others the policies should note exemptions, including those set out in human rights legislation, and provide procedures for addressing exemptions. The enforceability vaccine mandates may also depend on the workplace context, for example, health care employment and elder care.

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