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Wrongful Dismissal

Court finds lawyer personally liable for costs

Topics: - Wrongful Dismissal
Jurisdiction: - British Columbia
Sector: - Education

The BC Supreme Court recently ruled on a complicated cost application in Davies v. Canada Shineray Suppliers Group Inc., 2017 BCSC 1729. At trial the plaintiff was successful in obtaining wrongful dismissal damages and aggravated damages, but did not succeed in voiding a termination clause. 

The court considered six separate cost applications, from both the plaintiff and defendant, all of which stand on their own as discrete but important issues that can arise around the awarding of costs. 

As summary, the court rejected the defendant's argument that the plaintiff had not achieved substantial success. However, it did agree to an application by the defendant that the defendant's original trial lawyer be personally liable for costs awarded against the defendant. While it found the lawyer's conduct did not warrant special costs, not being "reprehensible conduct that requires punishment, but rather neglectful conduct that requires compensation", party and party costs were awarded for three of the nine days of trial.   read more »

Secret recordings by employee of meetings with management found to constitute misconduct

Jurisdiction: - Manitoba
Sector: - Agriculture

In Hart v. Parrish & Heimbecker, Limited, 2017 MBQB 68, the Manitoba Court of Queen's Bench considered whether an employee's secret recordings of meetings with management constituted misconduct. The court framed the recordings as a breach of the employee's duty of confidentiality and privacy obligations. 

Most plaintiff lawyers will agree that secret recordings are a common occurrence, and there has been little jurisprudence to assist in advising on whether such recordings could backfire into allegations of misconduct or even after-acquired cause. Prior court and administrative tribunals have permitted such recordings to be admitted as evidence, but this decision adds a layer of complexity. 

BC Court of Appeal affirms medical evidence not required to prove aggravated damages

Jurisdiction: - British Columbia

In Lau v. Royal Bank of Canada, 2017 BCCA 253, the British Columbia Court of Appeal overturned a $30,000 aggravated damages award attached to a wrongful dismissal judgment. During the initial trial the plaintiff gave evidence of the effects the termination had on his mental well-being but presented no medical evidence to substantiate his claims of mental distress. The court found the plaintiff was not harassed, scolded or or otherwise mistreated, and his testimony did not provide a sound basis for finding he suffered injury beyond the hurt feelings and distress that accompany any termination.

This decision affirms several important points surrounding mental distress claims in wrongful dismissal actions: actual bad faith conduct is a critical element of an award of aggravated damages; mental distress claims do not need to be accompanyed by proof of a psychiatric illness; and a plaintiff's own testimony absent medical corrobation is a valid consideration for the court. 

Probation clause could not be relied on where employment offer rescinded

Jurisdiction: - British Columbia
Sector: - Media

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the BC Supreme Court ruled that a defendant could not rely on a probation clause to justify early termination where the offer of employment was rescinded after the contract was entered into, but before the official first day of employment. The court found that the probation clause had not yet taken effect as employment had not started. Additionally, there was no means for the employer to have assessed the employee’s performance and terminated them for lack of suitability. The court awarded the plaintiff damages of six weeks’ salary. 

Employee failed to mitigate by retraining rather than apply for comparable roles available at former employer

Jurisdiction: - Ontario
Sector: - Manufacturing

In Benjamin v Cascades Canada ULC, 2017 ONSC 2583, a decision issued on April 27, 2017, the Superior Court of Justice - Ontario found that the plainitff former employee, Benjamin, failed to reasonably mitigate his damages by choosing to retrain rather than apply for the comparable positions available to him at his former employer, Cascades.

Specifically, the court stated:

[161]      It is not contested that there were comparable jobs available for Benjamin to seek at Cascades, given the comparable remuneration and his work experience as an unskilled general labourer. It is not contested that Benjamin "could have" procured any of the three available comparable positions.  read more »

Aggravated damages awarded in absence of medical evidence

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Cottrill v. Utopia Day Spas and Salons Ltd., 2017 BCSC 704, aggravated damages of $15,000 were awarded against a defendant for failing to be fair in its assessment of the plaintiff’s performance in the lead up to its decision to terminate her for cause.

This continues a recent trend in wrongful dismissal cases of aggravated damages being awarded for treatment seen by the court as unfair in the absence of medical evidence (see also Johnson v. Marine Roofing Repair & Maintenance Service (2003) Ltd., 2015 BCSC 472 for a similar result).