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Supreme Court of Canada confirms that pension benefits should not be deducted from notice period damages

Sector: - High Tech

In IBM Canada Limited v. Waterman, 2013 SCC 70, the majority (7/2) of the Supreme Court of Canada confirmed that pension benefits should not be deducted from notice period damages. In doing so, the Supreme Court of Canada upheld the decisions of the BC Court of Appeal and the BC Supreme Court. My summary of the BC Supreme Court's ruling, which sets out the facts, can be found here.

In the majority ruling the Supreme Court of Canada summarized its ruling as follows:  read more »

Employee who was “laid off” during recession was not required to return to same employer to mitigate damages

Jurisdiction: - British Columbia
Sector: - High Tech

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 »

"Temporary Foreign Worker Program - Information Technology Specialists"

Sector: - Film & TV - High Tech

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

Does the Ontario Human Rights Code protect employees charged with a criminal offence?

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 »

65 year old employee with 40 years service awarded 20 months notice; pension payments not deducted

Jurisdiction: - British Columbia
Sector: - High Tech

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 »