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Wallace & Bad Faith & Moral & Mental Distress Damages

The Top 10 Canadian court cases on wrongful dismissal and employment law

For an upcoming audio conference, Lancaster House has listed what it believes are the Top 10 Canadian cases (actually 13) on wrongful dismissal and employment law. In no particular order, it appears, 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 »

Employee’s treatment for drug addiction/fragile health factored into calculation of reasonable notice period

In Pereira v. The Business Depot Ltd., 2009 BCSC 1178, the court factored in the employee's recent release from a drug addiction treatment centre, and his vulnerable state of health generally, in determining the reasonable notice period.


The employee started working at Staples in 1997, after being recruited from another company. He was eventually promoted to general manager of the Nanaimo location.

Prior to June 2003, he was regarded as a good performer. However, starting at this time his professional conduct took a dramatic turn, as was repeatedly late for work, sometimes would not show up at all or would leave mid day for extended periods.  The employee eventually advised his district manager that he was depressed, fatigued and very unwell.  read more »

48 year-old middle manager with 21 months service awarded 9 month notice period

Jurisdiction: - British Columbia

In Mackie v. West Coast Engineering Group Ltd., 2009 BCSC 1775, the 48 year-old middle manager with 21 months service and an annual base salary of $57,500, was awarded a notice period of nine months.

Notice Period

The court noted that the law is clear that a dismissed employee cannot be compensated in damages for the loss of a job or for the pain and distress that follows as a result of the dismissal. The court also stated that the "unique" factor relating to the impact of the dismissal on the employee's family was not one to be given much weight in determining the length of the notice period.

That said, the manner in which the employee was dismissed and the impact it had on him and his family were undoubtedly what led to the court to award a notice period of nine months, which was at the high end of what the employee was seeking. Specifically:  read more »

Sexual harassment allegations not supported but abusive behaviour by manager led to constructive dismissal

In Cooke v. HTS Engineering Ltd., 2009 CanLII 73907 (O.N.S.C.), the court found that the former employee's allegations of sexual harassment were not supported, but that the manager's abusive behaviour supported a finding of constructive dismissal.

By way of contrast, in a recent decision out of Alberta - Pawlett v. Dominion Protection Services Ltd., 2008 ABCA 369 - the Alberta Court of Appeal upheld the trial judge's decision that sexual harassment by the boss led to a constructive dismissal. 

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 »

"Is Wallace Dead? The Keays to the Mystery Damages in Wrongful Dismissal Revisited"

Two lawyers at Filion Wakely Thorup Angeletti LLP in Toronto have co-authored a paper entitled "Is Wallace Dead? The Keays to the Mystery Damages in Wrongful Dismissal Revisited" (2009). It addresses the following cases:

  1. Vorvis v. Insurance Corp. of British Columbia,
  2. Wallace, v. United Grain Growers Ltd.,
  3. Honda Canada Inc. v. Keays, and
  4. the Ontario Superior Court of Justice's decision in Piresferreira v. Ayotte and Bell Mobility Inc.

Ontario's "10th Annual Employment Law Summit"

I attended the Law Society of Upper Canada's "10th Annual Employment Law Summit" in Toronto today.

The keynote speaker was the Honourable Mr. Justice Marshall Rothstein of the Supreme Court of Canada. He focused his comments on two recent cases in which the SCC has addressed fiduciary duties in the employment context:  read more »