A Little Bit of Everything to Start the Year

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In this month’s Newsletter, we bring you a tasting menu of ten cases that are worthy of mention.  Some of the cases are noteworthy more for their stories that any important legal principles. Labour and employment law is never boring.

1)     When a Fixed Term Contract is Actually a Fixed Term Contract

·       Steele v. The Corporation of the City of Barrie (ONSC)

We are accustomed to reading about employees whose employment was a series of fixed-term contracts being treated like indefinite hire employees.  This case is an example where an employer successfully relied on the terms of a fixed-term contract.  The plaintiff’s initial contract was extended a number of times.  His employment ceased upon the expiration of the last extension and the employer did not provide additional notice.  The plaintiff sued claiming damages for wrongful dismissal.

The Court found that the term was not ambiguous and even if it was, any reasonable person in the plaintiff’s position would not have been uncertain as to the nature and term of the employment.  The Court made the following findings:

  • The job posting under which the position was offered and in response to which the plaintiff applied for the employment clearly described the position as a temporary for a period of “2 years approximately”.
  • The very fact that extensions were granted before the end of the respective term serves as compelling proof that absent those extensions, the employment term would have expired.
  • Renewal and extension of the employment contract may have resulted in the employment being continuous for 3 ½ years, but that was pre-destined neither by the employment contract nor the words or conduct of the City.
  • Both the original employment letter and the respective extension notices confirm that the plaintiff’s employment was “temporary”.
  • The extension letters all provide a date “up to” which the employment would run.

The Court further rejected the plaintiff’s argument that the inclusion of the sentence, “[w]e look forward to your continued contribution” in the extension letter meant that the City agreed that he was a permanent employee.

2)    When A Supervisor Commits Assault and Battery

·        Osmani v. Universal Structural Restorations Ltd. (ONSC)

This case has the best opening line of any employment case in 2022:

Like many people before him, Rezart Osmani came to Canada armed with a desire to work hard and a dream to provide for his family.

There was no doubt from the outset how the case would end. The facts are shocking.

The plaintiff employee worked for the employer “off the books” as a newcomer to Canada, eventually obtaining Temporary Foreign Worker status. During his employment, the plaintiff was subjected to humiliating, degrading and embarrassing conduct. The case is lengthy and describes horrid behaviour by the defendants, some of the highlights include:

  • derogatory and discriminatory language, profanity and threats relating to his immigration status – “I’ve got you by the balls”, “next flight, you’re gone”;
  • humiliating pranks at his expense;
  • threatening to slap Mr. Osmani if he didn’t comply on a regular basis;
  • requiring him to complete work at the supervisor’s home;
  • when Mr. Osmani fell from a ladder his request for an ambulance was refused and he was told not to report the injury to the WSIB;
  • when Mr. Osmani returned from his injuries, he was assigned duties well beyond his restrictions; and
  • punching Mr. Osmani in his testicles in front of a group of co-workers, which resulting in his testicles turning “to mush” and ultimately resulted in the surgical removal of one of his testicles.

Mr. Osmani eventually quit and claimed constructive dismissal claiming that the workplace was not safe.

The Ontario Superior Court of Justice concluded that the plaintiff was entitled to:

  • $100,000 in general and aggravated damages for the tort of battery.
  • $25,000 in punitive damages against the supervisor who punched the plaintiff in the testicles.
  • $10,000 in general damages for the tort of assault.
  • $50,000 in damages for violations of the Human Rights Code.
  • Just over $4,000 in wrongful dismissal damages.
  • $75,000 in aggravated or moral damages.
  • $25,000 in punitive damages.
  • Almost $6,000 in unpaid wages.

3)    When a Business Closure During the Pandemic is not Frustration of Contract

·       Fanzone v 516400 B.C. Ltd. (BCSC)

The Supreme Court of British Columbia awarded a plaintiff employee 20 months of reasonable notice after his employer, the owner of a pub, terminated his employment.

The employer closed his pub at the start of the pandemic and did not re-open his pub even when the Provincial Health Officer issued an order permitting establishments to stay open only for take-out or delivery service or when standing/seating service at the pub was permitted. The employer opted not to re-open the pub, even for takeout orders, because it was safer for his family to remain in isolation to avoid exposure to the virus. The pub owner made a personal choice, and it did not amount to frustration of contract as a matter of law; thus, the employer was liable to the plaintiff employee for wrongful dismissal.

4)   When a Car Wash is not Just Cause

·       Stevens v Port Coquitlam (City) (BCSC)

In a wrongful dismissal case, the Supreme Court of British Columbia found that a municipal employer did not have just cause to terminate the employment of an employee who used the employer’s facilities to wash his personal vehicle.

While the plaintiff breached the Use of Municipal Equipment policy and his conduct reflected poorly on his leadership skills, the Court found that it did not justify his summary dismissal for cause. The employee was entitled to damages in the amount of $57, 910.56

The case highlights the importance of proportionality in an employer’s decision to dismiss an employee for cause and without notice.

5)    Whether CERB Payments are Deductible from Wrongful Dismissal Damages

·       Yates v. Langley Motor Sport Centre Ltd. (BCCA)

·       Oostlander v. Cervus Equipment Corporation (ABCA)

The Appellant appealed the decision of a trial judge who awarded her five (5) months of pay in lieu of notice in the amount of $25,000 but deducted $10,000 from the award to account for CERB benefits that she received during the notice period.

The Court of Appeal allowed the appeal regarding the deduction of the CERB payments, favouring a conclusion of non-deductibility of the CERB payments. In arriving at that decision, it considered whether there was an advantage or a greater benefit to receiving CERB payments in addition to pay in lieu of notice. The Court concluded that it was not an added benefit and was therefore non-deductible.

The Alberta Court of Appeal reached the same conclusion in the Oostlander case.

To date, the Ontario Court of Appeal has not considered the question of deductibility of CERB benefits from wrongful dismissal damages.  However, there are decisions (Henderson v. Slavkin et al., Iriotakis v. Peninsula Employment Services Limited) where the Superior Court of Justice found that the benefits should not be deducted.

6)    When Employers Seek Repayment of Stolen Money Through the Grievance and Arbitration Process

·       Unifor, Local Union No. 114 v Brinks Canada Ltd.  (BCSC)

An employee of Brinks was involved in robberies of several ATM machines belonging to a Brinks’ bank customer.  The employer sought an order from a labour arbitrator requiring the employee to repay the stolen money. The investigation into the robberies found that the alarms at the ATM locations were disarmed at the time of the robbery.  The bank concluded that the Brink’s employee had disabled the alarms and demanded that Brinks reimburse the bank for the money lost. Brinks complied as it was responsible under the terms of its contract with the bank.

The Union argued that the arbitrator did not have jurisdiction to order repayment because the money was stolen from Brink’s customer, not from Brinks directly.  The arbitrator disagreed, finding that the remedy sought by the employer grievance arose directly under the terms of the collective agreement. The Supreme Court of British Columbia upheld the decision on judicial review.

7)    When Terminated Employees Refuse to Compromise in their Job Search

·       Lake v. La Presse (ONCA)

The Ontario Court of Appeal confirmed that there is high onus on employers to prove that an employee has failed to take reasonable steps to mitigate their damages.  The Court found that a motion judge erred in reducing a plaintiff employee’s wrongful dismissal damages for failure to mitigate. This was because the record did not support the motion judge’s conclusion that the plaintiff failed to make reasonable efforts to mitigate her damages.

The motion judge erred in principle when she:

  • Accepted that in mitigation, after a reasonable period of attempting to find similar employment, a dismissed employee must begin searching for a lesser paying job; and
  • Concluded that the plaintiff aimed too high when she applied for certain positions and had focused her job search on roles that would represent a promotion over her prior role.

Ultimately, in the Court’s view, the motion judge placed too much emphasis on the titles of some of the positions the plaintiff applied for, without giving proper consideration to the plaintiff’s evidence that the positions were similar to her prior work experience.

8)    When Employers Take Away the Keys to the Car, then Try to Give them Back

·       Quesnelle v. Camus Hydronics Ltd. (ONSC)

The Ontario Superior Court of Justice found that the plaintiff was constructively dismissed from his employment when his employer unilaterally ceased providing him with vehicle funding which was an essential term of his employment contract. The plaintiff was a gasfitter.  For seven years, the employer paid for all operating costs of the truck driven by the plaintiff – even though the vehicle was used primarily for personal use, including commuting from his home in Oshawa to work in Mississauga, in addition to business use.  When the plaintiff requested a new vehicle, the employer refused.  The plaintiff asked the company to confirm that it would continue paying all the operating costs and 407 tolls if he purchased the new vehicle.  The company offered to pay for one additional month.  It also offered to sell him the vehicle he had been driving (a Dodge Ram pickup with over 400,000km), at fair market value.

The plaintiff resigned and claimed constructive dismissal. Following his resignation, the plaintiff sold his home and move 70km east to Omemee.  After he commenced his claim for constructive dismissal, the company offered to re-hire the plaintiff and to provide him with a new vehicle and pay the full costs of operation for one year.  The plaintiff declined the offer because the commute to Mississauga from Omemee was too far.

The Court found that employer’s business decision not to continue to pay for the plaintiff’s vehicle was a significant change to the plaintiff’s terms and conditions of employment. The offer of the vehicle was part of the reason the plaintiff agreed to accept the position to begin with. thus, it constituted constructive dismissal.  In addition, the Court found that:

Had Mr. Quesnelle not yet moved to Omemee, he would have been obliged to accept Camus’ offer of re-employment in mitigation. But Camus’ offer simply came too late in the game. Mr. Quesnelle was not obliged to remain in his Oshawa home after May 14, 2021 in the hope that he might one day receive an offer of re-employment from his former employer.

9)    When an Employee is Fired After One Shift

·       Tessema v. Nemesis Coffee Holdings Inc. (BCCRT)

The British Columbia Civil Resolution Tribunal awarded a plaintiff employee three (3) weeks of damages in lieu of notice after his employment was terminated after he worked one shift. The parties did not enter into a formal written contract (thus, there was no termination provision to rely on) and the Tribunal did not find that the plaintiff was under a probationary period when his employment was terminated.

10) When Employees Take Their Opinions about DEI Training to Rebel News

·       Sheridan College v OPSEU/SEFPO, (Labour Arbitration, Misra)

On December 13, 2022, Arbitrator Gail Misra upheld the termination of a long-service employee who worked for the employer for 12 or 13 years with no disciplinary record. The grievor did not agree with the equity, diversity and inclusion (EDI) training materials of his employer (he did not like the concept of “White privilege”) and explicitly shared the training materials, as well as his view of the materials, with Rebel News on YouTube. In doing so, he identified the creator of the training materials, a Black woman, which put her reputation in issue. Arbitrator Misra concluded that, regardless of whether the materials were confidential, the grievor purposefully shared the materials with the goal of publicly denigrating his employer; thus, he engaged in serious misconduct and a breach of his duty to his employer to act with loyalty and fidelity.