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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 »

"Are Pension Benefits Deductible From Wrongful Dismissal Damages?"

Jurisdiction: - Ontario

John D. Campbell and Stephanie L. Turnham have written an article entitled "Are Pension Benefits Deductible From Wrongful Dismissal Damages?" (October 2010). They are lawyers at WeirFoulds LLP in Toronto. The article was published in Canadian Corporate Counsel magazine.

In the article, the authors state that:

In Ontario, and generally throughout the common law provinces of Canada, the current consensus is that pension benefits received during the notice period are not to be deducted from wrongful dismissal damages".

They go on to state, however:  read more »

Employer did not have just cause to dismiss VP Finance it alleged was insolent, insubordinate and lacked judgment

Jurisdiction: - British Columbia
Sector: - Manufacturing

In Kokilev v. Picquic Tool Company Inc., 2010 BCSC 1412, the BC Supreme Court ruled that an employer did not have just cause to dismiss its VP Finance on the basis that he was insolent, insubordinate and lacked judgment.

At the time his employment was terminated, the VP Finance had almost eight years of service, earned $100,000 annually and was approximately 41 years old. The court awarded him a 10 month notice period.

(Postscript: James D. Kondopulos, a lawyer at Roper Greyell in Vancouver, has written a summary of the case that can be found here: "Dealing with the Insolent, Insubordinate or Disobedient Employee". The article first appeared in the B.C. Human Resources Management Association's HRVoice Magazine (March 2011)).

Supervisor's defamatory appraisal of dismissed employee protected by qualified privilege

In Dawydiuk v. Insurance Corporation of British Columbia, 2010 BCCA 353, the BC Court of Appeal addressed whether the contents of an email written by a dismissed employee's supervisor were defamatory and , if so, whether they were  protected by the defence of qualified privilege.

Background 

Ms. Dawydiuk began her employment with the Insurance Corporation of British Columbia ("ICBC") in 1988 as a clerk. At the time of her dismissal in 2004, she was 38 years-old and in a managerial position.

Ms. Dawydiuk had been off work since June 2003, first on a sick leave and then on a maternity/parental leave.  She was scheduled to return to work on October 4, 2004.

On July 5, 2004, while still on leave, Ms.Dawydiuk was phoned by her supervisor and advised of a restructuring that had resulted in her position being eliminated. Her supervisor advised her of two other available managerial positions, however, and asked her to let him know which one she would like.  read more »

Employee-shareholder dismissed for cause awarded damages for improper invocation of Shareholders' Agreement

Jurisdiction: - Ontario

In Link v. Venture Steel Inc. and Ruben Rivas, 2010 ONCA 144 the Ontario Court of Appeal upheld a decision in which a former Vice-President of Sales was awarded more than $4 million in damages, most of which related to company shares the employer had improperly purchased, pursuant to a Shareholders' Agreement, at the time it dismissed the employee for just cause.

The case also addressed the issue of how non-competition and non-solicitation provisions in a Shareholders Agreement will impact on a court's analysis of whether an employee's mitigation efforts were reasonable.

Lawyers at Fasken Martineau has prepared a summary of the case ("Beware the Perils of Firing Employee-Shareholders", June 22, 2010) that can be found here

Failure to adequately follow-up after fire destroyed employee's home, attack on reputation, lead to $20,000 bad faith damages

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Beggs v. Westport Foods Ltd., 2010 BCSC 833, the court awarded the plaintiff/former employee $20,000 in bad faith/unfair dealing damages because, among other factors:

  • the employer only tried to contact the employee twice after a fire destroyed her home before assuming she had quit; and
  • the employer's lawyer had attacked the plaintiff's reputation and had undertaken a generally aggressive tone in his correspondence with the plaintiff's lawyer.

Background

The plaintiff had worked as a clerk in the employer's meat department for 9.5 years. She earned $13.10/hour.  She had a Grade 12 education, was 52 years old and had a "good record" at work.

Triggering Event

On February 18, 2009, the plaintiff's mobile home was destroyed by a fire. She phoned her supervisor the next day to advise that she would be coming into work as scheduled that day, and did not know when she would be returning to work.  read more »