Discovery Shorts

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COVID Bumps and Reasonable Notice

Goetz v. Instow Enterprises Ltd., 2021 BCSC 709The plaintiff employee was not entitled to an extended reasonable notice period despite the COVID-19 pandemic, because there continued to be job postings for similar positions in their industry. Evidence did not support the limited availability of similar employment.

Herreros v. Glencore Canada, 2021 ONSC 5010 – The period of reasonable notice is to be determined by the circumstances existing at the time of termination, and not by the amount of time that it takes the employee to find employment.

Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998 – The impact of the pandemic may be taken into consideration when determining reasonable notice of termination, but courts should be mindful of the dangers of applying hindsight to the measuring of reasonable notice at the time when a decision is made to terminate an employee.

Kraft v. Firepower Financial Corp., 2021 ONSC 4962 – A wrongful dismissal case in which the court awarded the plaintiff employee one month more than it would have for the reasonable notice period due to the pandemic’s impact on their ability to secure new employment and the uncertainty that it caused.

Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133 – At the time of termination, the threat of a possible global pandemic created uncertainty about what might happen and how our economy might fare. This was a factor considered by the Court in assessing the reasonable notice period.

Yee v. Hudson’s Bay Company, 2021 ONSC 387 – When determining reasonable notice periods, terminations that occurred before the COVID-19 pandemic should not attract the same consideration as terminations that occurred after the beginning of the pandemic.

Terminations/Dismissals & Resignations

Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 – Before concluding that an employee has resigned from their position, employers should consider the circumstances leading to the supposed resignation. The resignation must be clear, unequivocal, and voluntary to be effective.

Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 5005 – If an employee engages in a series of incidents of misconduct in a short period of time, an employer may be able to terminate with cause even if there is an absence of prior discipline and any one of the incidents alone would not have been sufficient to support termination or cause.

Lake v. La Presse (2018) Inc., 2021 ONSC 3506 – The Court reduced the reasonable notice period of the plaintiff employee by two (2) months due to a failure by the employee to fulfill their legal duty to mitigate their damages and take reasonable steps to find alternative comparable employment.

Perretta v. Rand A Technology Corporation, 2021 ONSC 2111 – The phrase “subject to the Employment Standards Act, 2000 (ESA)” cannot save a for-cause termination provision that is ambiguous and otherwise in violation of the ESA.

Russell v. The Brick Warehouse LP, 2021 ONSC 4822 – The court awarded an employee $25,000 in moral damages because their employer breached their duty of good faith and fair dealing by failing to advise in the termination letter that if the employee declined the employer’s termination and severance offer, they would be immediately provided with their statutory Employment Standards Act, 2000 entitlements.

Other Noteworthy Cases

Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 – Employment claims for vacation pay and unpaid wages may be brought against directors under the Ontario Business Corporations Act, even if such claims cannot be brought under the Employment Standards Act, 2000.

Cybulsky v. Hamilton Health Sciences, 2021 HRTO 213 – Employers have a duty to investigate claims of gender bias regardless of whether a formal complaint is filed. Human rights jurisprudence has read the obligation to investigate into the right to equal treatment in employment under s. 5 (1) of the Ontario Human Rights Code.

Eynon v. Simplicity Air Ltd., 2021 ONCA 409 – The Ontario Court of Appeal upheld a jury award of $150, 000 in punitive damages against the employer after finding that the supervisors’ instructions to the injured employee to falsely report that he was injured at home warranted an award of punitive damages.