Blog
The Duty to Mitigate Can Have Harsh Consequences
In my last post I discussed the employee’s duty to mitigate in highly unusual case. The duty to mitigate is an important issue in most wrongful dismissal cases. The issue was recently discussed by the Supreme Court of British Columbia in Koenig v. Brandt Tractor Ltd.,2013 BCSC 920. In this case, the employee was employed by [...]
When is a Dismissal a Dismissal?
The BC Court of Appeal in Allen v. Ainsworth Lumber Co. Ltd., 2013 BCCA 271 recently affirmed atrial judgement that found that an employee who was advised that he was relieved of his duties, and to “go home” while the employee paid him had been dismissed and was not required to mitigate his damages. When he found [...]
Should I Stay or Should I Go? BCCA Weighs In
While easy to express, the test for determining whether a particular change in the terms of employment amounts to a constructive dismissal is practically complicated. Furthermore, under what circumstances is an employee required to remain at work under the altered employment terms in mitigation of his or her damages arising from a constructive dismissal? These [...]
$100,000 in Punitive Damages Awarded
The Supreme Court of British Columbia in Kelly v. Norsemont Mining Inc., 2013 BCSC 147 (CanLII) considered a wrongful dismissal claim along with a claim for punitive damages arising out of the dismissal of an employee. He alleged that the dismissal was occasioned out of his insistence that the Company comply with securities regulations. The employer defended [...]
Terminate Before or After the Holidays?
Avoiding the Holiday Party Hangover
With the holiday season fast approaching, the company holiday party is also upon us. Careful human resources planning will help assure a successful and, one hopes, risk free event. The holiday party is intended to be a fun event and to allow employees to come together as a group. It is not calculated to be [...]
Deductibility of Disability Benefits from Wrongful Dismissal Damages
Whether disability benefits are deductible from damages for wrongful dismissal is an issue that has somewhat of a long history, including before the Supreme Court of Canada in Sylvester v. British Columbia. The matter was recently revisited before the Nova Scotia Supreme Court in Burgess v. Yellow Pages Group Co., 2012 NSSC 390. Yellow Pages [...]
Employment Agreements – Language is Key
Where carefully drafted and properly entered into, employment agreements are a tremendously valuable tool for employers to bring certainty and predictability to the employment relationship. Sometimes, however, employers are surprised by the manner in which courts interpret their agreements. Such may well have been the case in the recent case of Freudenberg Household Products Inc. v. DiGiammarino, 2012 [...]
Set-Off of LMR payments from Damages
Can a Schedule II employer under the Workplace Safety and Insurance Act, 2000 deduct the costs associated with a Labour Market Re-Entry Program (“LMR”) from damages found to be owing for breach of the duty to accommodate? An Ontario arbitrator recently concluded that the answer was “no”. The Arbitrator discussed the LMR as follows: An [...]