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Punitive Damages

“'I’m Being Sued For What?!' Deconstructing the Different Damages in an Employee’s Statement of Claim"

Genny Na and Naomi E. Calla, lawyers at Borden Ladner Gervais in Toronto, have prepared a paper entitled,  “I’m Being Sued For What?!” Deconstructing the Different Damages in an Employee’s Statement of Claim".

The paper was written for the firm's 13th Annual Labour & Employment Group Symposium held on November 4, 2010.

The authors have attached to the paper an extremely useful, and comprehensive, chart that lists court decisions in Canada from 1984-2010 where "excess damages" (aggravated, bad faith, punitive, etc.) have been awarded.

"Vorvis, Wallace and Keays - Is Wallace Dead?

Jurisdiction: - Ontario

Lawyers at Koskie Minsky LLP prepared a paper entitled "Vorvis, Wallace and Keays - Is Wallace Dead?" (April 29, 2010) for the Ontario Bar Association 9th Annual Employment Issues: Developments in Supreme Court Doctrine Conference.

"Charge to the Jury" on awarding punitive damages in Alberta wrongful dismissal case

Jurisdiction: - Alberta

The wrongful dismissal action in Elgert v. Home Hardware Stores Limited (see previous post) was heard by an Alberta jury.

In Elgert v. Home Hardware Stores Limited, 2010 ABQB 220, the 13th written decision in this case, the judge laid out his Charge to the Jury on the issue of punitive damages at para. 61:

On the issue of punitive damages, the Charge to the Jury followed the specific guidelines set by the Supreme Court of Canada in Whiten v. Pilot Insurance Co. The Guidelines and Restrictions were stated painstakingly with many warnings given to the Jury. My Charge to the Jury at pages 20 - 21 reads as follows:-  read more »

Alberta jury awards almost $1 million in damages to employee dismissed for sexual harassment

The case of Elgert v. Home Hardware Stores Limited, 2010 ABQB 73 (CanLII), concerned a senior employee in a management position was dismissed for just cause based on alleged sexually harassment and insubordination. At the time, he had worked for Home Hardware for almost 17 years and was over the age of 50.

The alleged incidents occurred in late 2001/early2002 at the Home Hardware distribution centre in Wetaskiwin, an hour's drive from Edmonton.

The first complainant alleged that the Plaintiff, Mr. Elgert, pushed her into a dark storage room, pushed her up against a table, held her hands down and wiggled his body between her legs.

The second compliant alleged that a few months later while she was cleaning a first aid room in the warehouse, the Plaintiff entered the room, turned off the light and shut the door. He then bumped her backwards until she fell onto a cot. He laid on top of her, and lingered there.

One of the complainants was the daughter of the head of the distribution centre.  read more »

Employer to pay $20,000 in punitive damages for not fully investigating allegations before dismissing for just cause

The employer in Nishina v. Azuma Foods (Canada ) Co. Ltd., 2010 BCSC 502, was ordered to pay $20,000 in punitive damages for dismissing an employee for just cause without properly investigating the allegations of misconduct.  

The case is also of interest in that the court addressed:

  • the contractual force of workplace policy handbooks; and
  • the degree to which different cultural norms - in this case, the importance of an apology in Japanese culture - will impact on the just cause analysis.

Background 

The employer was a Japanese company with operations in California and BC. It produced Japanese ready-to-eat frozen food products.

The employee was a Japanese citizen.  At the time of her dismissal, she was 43 years old, had 6 years, four months service and was employed as a quality control associate. She earned approximately $52,000 per year.     read more »

Unionized employee awarded over $500,000 in total damages for bad faith dismissal

Jurisdiction: - Ontario
Sector: - Transportation

The Canadian labour and employment law community has taken notice of the decision in Greater Toronto Airports Authority and Public Service Alliance of Canada, Local 0004 (No. GV-008-04, O.B. Shime, QC, February 24, 2010), much the same way it did of:

In Greater Toronto, the arbitrator awarded a 47 year-old unionized employee over $500,000 in total damages because the employer had acted unreasonably and in bad faith in terminating her employment.  read more »

The Top Ten Canadian Court Decisions on Arbitration

In addition to presenting an audio conference on the "Top Ten" Canadian employment law and wrongful dismissal cases (see my previous post), Lancaster House recently presented on the "Top Ten Canadian Court Cases on Arbitration". Again, in no particular order, the cases and the issues they address, are:  read more »

BC Court of Appeal overturns award of $100,000 in punitive damages to apprentice employee

In Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29, the BC Court of Appeal:

  1. overturned the trial judge's award of $100,000 in punitive damages;
  2. upheld the trial judge's award of $25,000 in consequential damages;
  3. upheld the trial judge's decision to not award moral damages; and    
  4. remitted the matter back to the BC Supreme Court to determine the notice period.

This appears to the second written employment law decision issued by the BC Court of Appeal in 2010. The first was Davidson v. Tahtsa Timber Ltd., 2010 BCCA 12, which dealt with a procedural matter.

Background  read more »

BC Court awards employee almost $40,000 in unpaid overtime going back six years

In Stastny v. Dependable Turbines Ltd. 2009 BCSC 1648,  the court addressed the notice period, a claim for unpaid overtime and a claim for aggravated or punitive damages.

Notice Period

The 51 year old machinist with 20 years service was dismissed without cause. The court awarded him a notice period of 15 months.  The fact that the employee had been laid off and rehired on several occasions did not, the court concluded, effect the duration of his employment for the purposes of calculating his notice period.

Unpaid Overtime

The employee had regularly worked more than 40 years a week but had not received overtime pay. This was confirmed by time sheets produced by the employer, which showed that the employee only received his regular wage for overtime hours worked. The employer argued that it had an agreement with the employee to this effect.  read more »