Ernst v. Destiny Software Productions Inc., 2012 BCSC 542

Emmanuelle Renard ("Renard") was a valued with 12 years of service when her employer, Facet Decision Systems inc. ("Facet"), reluctantly laid her off in July 2009 because of the economic downturn.

Facet subsequently realized that it was not permitted to impose a layoff, and that the effect of a layoff was in fact a dismissal without cause. As such, a few months later, Facet offered to re-employ her in the same position.

Renard refused the offer of re-employment and instead commenced a wrongful dismissal lawsuit. Facet took the position that she had failed to mitigate her damages by not accepting her job back.

Court's Decision

Renard took the position that she was not required to return to Facet for three general reasons.

First, she argued that the relationship had broken down and become poisoned, making it impossible for her to continue working for Facet. The court rejected this argument, pointing to the following:  read more »

Jennifer Ervick, a lawyer at Thompson Dorfman Sweatman LLP in Winnipeg, has written a brief entitled, "Temporary Foreign Worker Program - Information Technology Specialists" (June 2010).

The brief highlights the fact that, "On September 30, 2010 the temporary foreign worker program for information technology (IT) specialists will come to an end (except for employers wanting to hire foreign workers for positions in Quebec)".

The brief further notes that there have been seven occupations covered by the program:

1. Senior Animation Effects Editor
2. Embedded Systems Software Designer 
3. MIS Software Designer 
4. Multimedia Software Developer 
5. Software Developer Services
6. Software Products Developer
7. Telecommunications Software Designer

In Whiting v. First Data Canada Merchant Solutions ULC, 2010 BCSC 764, the court found that:  read more »

Does the Ontario Human Rights Code ("OHRC") protect employees charged with a criminal offence? The answer is "no" based on a series of decisions by the Ontario Human Rights Tribunal ("OHRT") over the last year.

Ontario Human Rights Code

The OHRC prohibits discrimination in employment on the basis of an employee's "record of offences". The OHRC states that "record of offences" means a conviction for:

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

Decision in de Pelham v. Mytrak Health Systems Inc.

In a February 2009 decision, de Pelham v. Mytrak Health Systems Inc. 2009 HRTO 172 (CanLII), the chair of the OHRT ruled that the "record of offences" provisions do not encompass criminal charges. Specifically, he stated:  read more »

In Waterman v. IBM Canada Limited, 2010 BCSC 376, a 65 year old employee with 40 years of service was awarded a 20 month notice period. At the time of dismissal, the employee had had no plans to retire.

In reaching its decision, the BC Supreme Court addressed the following issues of interest:

1. the impact of the character of employment on the notice period;
   
2. the impact of health problems on the notice period;
3. compensation for lost stock purchases over the notice period; and
   
4. whether pension benefits received over the notice period should be deducted from the damages award.

Character of Employment
 read more »

In Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the BC Court of Appeal addressed:

1. the notice period owed to a short service employee; and
2. an employee's entitlment to stock options during the notice period.

Notice Period

The employee's employment was terminated without cause after approximately nine months of service. She had held a senior software sales position, was 35 years old and earned a base salary of $60,000 with target earnings of $100,000 inclusive of commissions.

The BC Court of Appeal upheld the trial judge's award of a five month notice period, finding that it was not unreasonable given that it took the employee nine months to secure new employment.

However, in a statement that will bring comfort to employers, Madam Justice Huddart  also stated that:  read more »

In Ciric v. Raytheon Canada Limited, 2008 BCCA 241, the plaintiff (respondent) had worked for Raytheon for 10 years as a software engineer.

In September 2005, the plaintiff was provided with notice that her employment would be terminated on June 10, 2006. She was told that because the employer had calculated her notice entitlement at 9.4 months, she would, at the time her employment ended, be paid for one additional month if she signed a release.

In May 2006, the plaintiff filed a claim for severance on the basis of assurances provided by the company (both orally and in writing) in January 2004, at a time when it was downsizing at the facility where the she worked.

Specifically, anxious to placate the concerns of its key employees at a time of uncertainty, the company had told them that its practice of paying, at minimum, one month's salary for each year of service would continue to apply to any employees who were laid off in the future (the "Severance Pay Policy").  read more »

IBM Canada Ltd. v. Ontario (Finance), 2008 ONCA 216

Carscallen v. FRI Corp. 2005 Canli 20815 (ON S.C.)

(Post-script: this decision was affirmed by the Ontario Court of Appeal, 2006 CanLII 31723 (ON C.A.)).