Just Cause for Dismissal, According to the Saskatchewan Court of Appeal

by Stacey R. Ball| January 25, 2022August 13, 2023 | Cause For Dismissal| | General

In a recently released decision, the Saskatchewan Court of Appeal was tasked with determining whether or not an employer, the Saskatchewan Indian Gaming Authority Inc., had just cause to terminate an employee by the name of Mr. Thomas. In answering this question, the Court of Appeal provided a helpful outline of the legal principles governing just cause terminations.

Why Was Mr. Thomas Fired?

In the summer of 2018, Mr. Thomas was one of three candidates for a promotion to a management position with the employer. By this time, he had already been with the employer for eight years. Unfortunately for Mr. Thomas, he was not selected for the promotion. It went to another candidate – a woman. Upon hearing this news, Mr. Thomas allegedly became “angry and aggressive.” He accused his superior of being a racist and argued that he would have had a better chance of being promoted if he had “cut his own balls off.” In his opinion, the employer’s explanations as to why he was not selected were “bullshit.” The entire ordeal left Mr. Thomas’ superior “quite shaken up” and fearful that Mr. Thomas would follow him to his home.

Mr. Thomas was ultimately fired from his employment on October 22, 2018 with cause, twelve days after his angry outburst.

Trial Judge: Just Cause for Termination

Mr. Thomas disagreed with the decision and filed a Statement of Claim with the Court of Queen’s Bench on November 19, 2021. His claim was dismissed. According to the trial judge, the employer had just cause to dismiss him as a result of the meeting he had with his superior. During that meeting, the trial judge found that Mr. Thomas had “engaged in misconduct that is incompatible with the fundamental terms of the employment relationship.” Mr. Thomas was found to have been insubordinate by threatening and belittling his superior. His conduct destroyed the capacity for he and his employer to trust one another and to work together, two aspects that are fundamental to continued employment. In the end, the employer had just cause to terminate Mr. Thomas without notice or severance pay.

On Appeal: Termination Upheld

The Saskatchewan Court of Appeal was tasked with deciding whether or not the trial judge had erred in finding there had been just cause to terminate Mr. Thomas. In doing so, the Court provided a very useful summarization of the law surrounding just cause. They raised several points, which I will summarize here:

1) Determining whether an employee’s conduct amounts to just cause for dismissal involves a contextual analysis with an eye to proportionality;
2) The key question is whether, in the circumstances, the behavior of the employee was such that the employment relationship could no longer viably exist;
3) Dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship;
4) Whether misconduct amounts to just cause for dismissal is a question of mixed fact and law;
5) The particular label attached to the category of misconduct (i.e., whether it be characterized as insubordination or insolence) does not govern the determination; and
6) The applicable standard of review is one of palpable and overriding error, unless an extricable error of law or principle is identified.

In applying these principles to Mr. Thomas’ termination, the Court of Appeal found that the trial judge had made no error in their determination, other than that they likely should have said Mr. Thomas was insolent rather than insubordinate. Nevertheless, the trial judge “kept his focus in the right place, namely, the seriousness of the misconduct and its effect on the continuing viability of the employment relationship.” Therefore, the Court dismissed Mr. Thomas’ appeal and upheld the trial judge’s determination that he had been dismissed for just cause.

Age Isn’t Everything: 61-Year-Old Gets 2 Months Notice

by Stacey R. Ball| January 23, 2022August 13, 2023 | Employment Law| | General

We often think of an employee’s old age as being a very commanding consideration in the determination of reasonable notice periods. After all, it is often more difficult for older employees to find new work, not to mention the stress of having to start over somewhere new late in one’s life. However, in Flack v. Whiteoak Ford Lincoln Sales Limited, a recent decision of the Ontario Superior Court, we see that old age does not always guarantee a lengthy period of notice.

Assessing Reasonable Notice

In determining the proper amount of reasonable notice, the Court turned to the typical test set out in Bardal v. The Globe & Mail. There, it was acknowledged that a determination of reasonable notice must always be decided with reference to each particular case, and considering a number of factors including not only an employee’s age but also their length of service, the character of employment, and the availability of similar employment. Although it is true that like cases should be treated alike, there are often good reasons for distinguishing between similar cases such as to arrive at different conclusions. The Bardal factors are not exhaustive, and the weight allocated to each may vary.

In this case, the employee at issue was an older employee, being 61 years’ old at the time of his termination. However, he had only been with the employer for 9 months, meaning his length of service was relatively short. He was working as a Finance Manager at the employer’s car dealership, but was responsible for selling financial products as opposed to the cars. His salary in this position was $156,000 per annum (although he worked less than a year). These are the factors the Court had to consider in determining reasonable notice, although his age and length of service were perhaps more central than any other factors.

Length of Service

The employee, aware that his 9 months of service was a rather short period of time, attempted to argue before the Court that short service employees have, in recent years, attracted lengthier notice periods. Unfortunately, the Court disagreed. In the Court’s view, an employee’s length of service indicated the degree of investment employer and employee have made to each other. The Court noted that the employee, prior to working with the defendant employer, had three other positions of a relatively short duration. This appeared to support the employer’s assertion that their industry is characterized by a fluid job market, where turnover occurs relatively frequently. In cases such as this, where the employee’s short length of service suggests low investment in the employer, the employer will have less of a responsibility to assist the employee while they search for alternative employment.

The Court noted that the employee was not enticed away from a long-term employer, or from a position where he enjoyed significant job security. If that had been the case, then the investment the employee had made would have been greater, and thus the employer would have owed the employee more. This was not the case here. His length of service, therefore, favoured a shorter period of notice.

Age of the Employee

Could the employee’s short length of service be offset by his more senior age? According to the Court:

“It cannot be said that older employees are for that reason alone entitled to a greater notice period than younger employees. Indeed, there are very strong policy reasons that would militate against such a principle. Such a principle would quickly become a self-fulfilling prophecy. If hiring older employees brings along greater risk and greater commitment to a potential employer, the rational employer will discount applications from older employees in favour of younger ones unless other advantages outweigh that additional risk.” (emphasis added).

Therefore, the simple fact that an employee is older will not guarantee them a longer notice period. Even when considering the age of the employee, you must evaluate the weight to be given to that factor on a case-by-case basis. Here, the employee’s age was not prohibitive of his reemployment. For that reason, his age did not automatically attract a greater notice period because it did not make it more difficult for him to secure alternative employment.

Mandatory Vaccine Policy Does Not “Force” Employees to be Vaccinated, Says Federal Court

by Stacey R. Ball| January 21, 2022August 13, 2023 | General

In a recent decision, the Federal Court refused to grant an interlocutory injunction against a COVID-19 vaccination policy. The Applicants seeking the injunction were employees of the Government of Canada who refused to be vaccinated for a multiplicity of reasons. In their view, the mandatory vaccine policy infringed their rights at common law and under the Canadian Charter of Rights and Freedoms.

The Vaccination Policy

The vaccine policy in question was the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police.” According to the Policy, failure or refusal to be vaccinated in accordance with the policy would result in administrative leave without pay or even termination. However, the Policy does provide for some accommodation, but only to those who are “unable to be fully vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act …”. Therefore, employees who simply do not wish to be vaccinated are not entitled to accommodation, as this would not amount to a prohibited ground of discrimination as defined under the Canadian Human Rights Act.

Should the Injunction be Granted?

Ultimately, the Federal Court declined to grant an injunction against the vaccination policy. To begin with, the Court did not believe they should exercise their residual discretion to intervene in a labour dispute that is barred by s. 236 of the Federal Public Sector Labour Relations Act. Instead, the employees should have pursued their individual grievances through that Act.

Nevertheless, the Federal Court went on to determine whether or not their refusal to grant an injunction against the Policy would result in irreparable harm to the Applicants that could not be compensated for in damages. According to the Applicants, this is not just a case about losing employment, but rather about preserving their “right to refuse medical treatment, without the threat of financial reprisal, stigma, and social isolation.”

In the Federal Court’s view, this mischaracterizes the harm at issue. According to the Court, the harm the Applicants may suffer, in reality, is being placed on unpaid leave or terminated if they refuse the vaccine. Notably, the Court said:

“They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other […] Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.”

Although it may seem as though mandatory vaccine policies at workforce employees to receive vaccines, they are not truly being forced because they retain throughout the ability to choose between the vaccine and their employment. The loss of employment, while a serious consequence, is reparable harm that can be compensated in monetary damages. It does not itself justify the imposition of an injunction such as that sought in this case.

As a result, the motion for an injunction against the vaccine policy was refused.

Strong Start to 2022 for COVID-19 Vaccine-Related Terminations

by Stacey R. Ball| January 19, 2022August 13, 2023 | Employee or Dependent Contractor| | Employment Law

Throughout the previous year, we have seen many workplaces adopt controversial COVID-19 vaccine mandates. To some, it is a necessary measure to protect the workforce and the Canadian public at large. To others, it is a violation of bodily autonomy and human rights. Given this divide, it is unsurprising that many individuals have refused to become vaccinated notwithstanding the risk to their employment.

As of the first week of the New Year 2022, we have already begun to see the effects.

City of Toronto Terminations

On Wednesday, January 5th, the City of Toronto announced that they had fired 461 city employees for their refusal to receive the COVID-19 vaccine. These 461 employees either had not received any COVID-19 vaccine, or did not report their vaccination status as required (perhaps for perceived privacy reasons, although the feasibility of this argument appears shaky in light of a recent labour arbitration decision). Notably, approximately 98.6% of the City’s employees (representing approximately 32,478 active employees) did receive their vaccinations and were in compliance with the mandate, meaning that the 461 terminations represented a very small fraction of the City’s workforce.

As for employees who remain partially vaccinated, their future with the City remains uncertain. There are currently 248 City employees who have only received their first shot. According to the City’s statement:

“Starting this week, those 248 employees with one dose will have a vaccination status meeting with their manager and, if applicable, their union representative. If at that meeting the employee is found to still not have two doses of a COVID-19 vaccine, employment could be terminated that day. Consideration will be given to employees who have an appointment booked for their second dose.”

It appears, therefore, that partially vaccinated employees must act quickly to secure their second dose, otherwise they may find themselves terminated as well.

There are also 37 City employees on temporary leave awaiting a decision on accommodation requests. These likely are accommodations requested under the Ontario Human Rights Code, R.S.O. 1990 and would include requests such as medical or religious accommodation. Interestingly, the Ontario Human Rights Commission released a statement in September, 2021, suggesting that personal beliefs relating to vaccines is not a protected ground under the Human Rights Code and will not protect employees from termination.

To conclude, I will leave you with a quote from the City Manager, Chris Murray:

“With the rapid increase in COVID-19 cases across the city, driven by the Omicron variant, it is good to know the City’s employees are doing all they can to protect each other and the people of Toronto.”

Toronto Police Officers Placed on “Indefinite” Unpaid Leave

While the City proceeds to terminate over 400 employees, it appears as though they may not be terminating their police who refuse vaccines. Instead, Toronto police who refuse vaccination will remain on indefinite unpaid leave. When they become fully vaccinated and disclose their updated vaccination status, they will be able to return to work.

Lawvin Hadisi, a spokesperson for Mayor John Tory, had this to say:

“Recognizing that much of employee relations when it comes to policing, including terminations, is governed and bound by the provincial Police Services Act, the Mayor is confident Chief Ramer is doing all he can to protect the health and safety of all members of the police service and encourage members to get vaccinated.”

What Makes a Great Law Firm Website in 2021?

by Stacey R. Ball| January 19, 2022August 13, 2023 | General

If there’s one thing that doesn’t stay still, it’s technology. Ever wondered what makes a great law firm website in 2021? With new trends coming in every year, it’s not surprising that many site owners are looking at ways to remain ahead of their competition. We asked the team at dNovo Group to break down some of the noteworthy features of a high-performing law firm website. This article will look at these key features that will help your law firm website dominate in 2021 and beyond.

Quick loading pages

Did you know that 50% of your website visitors will leave the page if it’s not fully loaded within 10 seconds? In fact, patience is less among desktop users who abandon a site that takes more than 3 seconds to load. Some commonly known culprits of slow loading pages are heavy images and videos on the site or unnecessary elements like flash players. Use a page speed tool to always keep track of your loading times and take steps to optimize your site speed.

Easy to read and navigate

One rule of thumb for any website, not just legal ones, is to ensure that every visitor can read and navigate – this creates a positive image for your brand. Simple things like making sure your contrast text and background have high contrast, carefully selecting your font size, type & weight and making good use of whitespace can enhance the page’s readability.

Interactivity features

Does your law firm website keep users engaged? Law firms haven’t invested in interactive website features, unlike other professional industries like real estate industries, banks and insurance firms. Your website should allow users to carry out an action of some sort. It could be as simple as booking an appointment with one of the partners online or an interactive piece of content that provides unique information to every user. Interactive content on your law firm website will result in a longer time spent on the page and reduce the bounce rate compared to static content. In fact, research has shown that sites with interactive content get higher conversions than those with passive content.

Minimalist look

Invest in a law firm website with a simplistic look. A clean, minimalist design is especially important for websites that are content-heavy. Make use of whitespace and a flat design that allows users to scroll through your content without feeling distracted. In fact, the minimalistic web design has become a trend for law firm websites, which has made many users expect this when they land on different law firm pages. If your website was done more than 3 years back, consider hiring the experts at dNovo for a redesign project to revamp its look and improve functionality.

Mobile First

The first rule of thumb in making your website search-worthy is investing in a mobile-first design. Your site’s pages should adjust to remain just as interactive when accessing them with a mobile device. Google has a mobile friendly test that allows you to check how mobile-first your web pages are.

Sokoloff Lawyers Successful Injunction Against Former Employee

In a recent decision of the Ontario Superior Court, popular personal injury law firm Sokoloff Lawyers won an injunction against six former employees who had been working out of the firm’s Brampton office. Notably, Savannah Chorney, the leading lawyer at the Brampton office, had plans to start her own firm and intended to work out of the very same office location.

The Takeover of the Brampton Office

According to the Court, “Ms. Chorney conducted a planned and deliberate operation to take over the Brampton office.” On October 8th, 2021, she closed the office early, changed the locks on the doors, had the Sokoloff Lawyers sign removed from the building, and instructed her employees to leave their computers on without password protection. Ms. Chorney and her team downloaded client files and precedents from the computers.

It was three days after this takeover, on October 11th, 2021, that Ms. Chorney advised her employer that she was resigning and would be starting her own practice out of the Brampton office.

On October 12th, Sokoloff Lawyers began receiving client file transfer authorizations. A number of Sokoloff Lawyers clients had decided to transfer to Ms. Chorney’s new practice. This occurred suspiciously quickly. According to Sokoloff Lawyers, this indicated that Ms. Chorney had started contacting clients before she had resigned from the firm. At the time of the Court’s decision, over 200 clients had provided authorizations to transfer. The Court ultimately agreed with Sokoloff Lawyers that Ms. Chorney had contacted clients about the transfer of filed before resigning from the firm.

Granting an Interlocutory Injunction

In deciding whether to grant an interlocutory injunction, such as the one requested in this case by Sokoloff Lawyers, a Court must apply the test laid out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General). There are three parts:

There is a serious issue to be tried;
The moving party will suffer irreparable harm if the relief is not granted; and,
The balance of convenience favours granting the injunction.

Here, the Court easily found that there were serious issues to be tried. Among them was the claim that Ms. Chorney had breached her good faith and fiduciary duties to Sokoloff Lawyers.

Secondly, on the issue of irreparable harm, the Court was of the view that this factor was less important given the strength of the plaintiff’s case. Nevertheless, the Court held it would be unfair and unreasonable for Ms. Chorney and the defendants to force Sokoloff Lawyers to carry the cost of disbursements on the files that had been transferred. Effectively, this would result in Sokoloff Lawyers financing their direct competitor. The unfair competition that would be result would indeed be difficult to calculate.

Finally, in considering the balance of convenience, the Court was tasked with deciding which of the two parties would suffer the greater harm from either granting or refusing the injunction pending a determination on the merits. The Court concluded that the balance of convenience favored granting the injunction. Requiring Ms. Chorney and the defendants to pay the cost of disbursements at the time of the file transfers would level the playing field and prevent Sokoloff Lawyers from having to carry the cost of both its files and the files handled by its direct competitor, Ms. Chorney.

Conclusion

Ultimately, all three aspects of the test for an interlocutory injunction were met. The Court ordered that, among other things:

The Defendants refrain from initiating communication with or soliciting any current clients of Sokoloff Lawyers;
The Plaintiffs refrain from initiating communication or soliciting clients who have delivered file transfer authorizations;
The Defendants reimburse Sokoloff Lawyers all outstanding disbursements on transferred files within five months of Sokoloff Lawyers delivering a full accounting of claimed disbursements to the Defendants;
The legal fees associated with each transferred file be divided 25% to Ms. Chorney, 25% to Sokoloff Lawyers, and 50% to trust, with the entitlement of either party to this amount being determined later by consent of the parties or by an order of the Court.

Constructive Dismissal Resulting in High Damage Award Upheld by Ontario Court of Appeal

McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home) is a case unlike many others, in the sense that it involved a particularly large award of wrongful dismissal damages: $1,274,173.83. There are not many scenarios in the context of employment law which could support such an immense award of damages. So alarmingly high was the award that the defendants actually appealed the ruling on the grounds that there had been an error in calculating the damages (among other grounds of appeal).

Ultimately, the Ontario Court of Appeal upheld the trial judge’s decision and the high award of damages.

Factual Background

The employee in this case was formerly the owner of the McGuinty Funeral Home – a family business that had originated with his grandfather. This was the only business the employee had ever known. At the age of 55, he made the difficult decision to sell the business. The sale agreement provided that the employee would remain with the funeral home for an addition ten years as a General Manager. Thus, the former owner became an employee of the company that bought the business.

Despite this agreement, there was a serious lack of trust between the new employer and the employee. The new employer changed the locks to the funeral home under the belief that the employee was throwing away funeral home files without authorization. Furthermore, the employer took away the employee’s use of the company vehicle, which had been a term of their agreement.

Eventually, the employee commenced a medical leave as set out in a doctor’s note. The employee was clear that during this medical leave, he would not be stepping down from his posiiton. During that leave, the employer removed the employee’s desk and pictures of the employee’s family. The employee also identified a number of unresolved concerns: unpaid commissions and wrongful deductions from his pay.

In analyzing these facts, the trial judge found that the employee had been constructively dismissed. The trial judge made five findings of fact, holding that the employer:

Improperly terminated the employee’s use of his company vehicle;
Recruited a subordinate to track the employee’s time at work, without notifying him;
Failed to pay the employee commissions to which he was entitled;
Removed the employee’s photograph from the funeral home; and,
Changed the locks to the funeral home without notice or explanation.

As a consequence, the trial judge found the employee was constructively dismissed. The employee was awarded the controversial amount of $1,274,173.83.

No Error in Calculating Damages

The employer subsequently took the position that the trial judge had erred in their calculation of damages. The employer proposed three arguments, all of which were ultimately rejected by the Ontario Court of Appeal. There was, in their opinion, no basis upon which to interfere with the trial judge’s decision. As a result, the large award of damages was upheld.

This, obviously, was a very welcome decision for the employee – and a very costly lesson for the employer.

Three Days of Work, Three Months of Pay: Dalton v. Fraser Valley Fire Protection Ltd.

Employers should expect to provide some compensation to employees they terminate without cause. The amount of compensation depends on a number of factors, such as the nature of the employment, the availability of similar employment, the age of the employee, and the amount of time the employee spent working for the employer. These factors are not always given equal weight. The relatively recent case of Dalton v. Fraser Valley Fire Protection Ltd. is a good example of this, where the weight given to the employee’s age far outweighed that given to their extremely short length of service.

What Happened?

This case involved an action for wrongful dismissal brought by an employee, Mr. Dalton, against his former employer, Fraser Valley Fire Protection Ltd. Interestingly, Mr. Dalton had only worked with this employer for three days prior to his dismissal. One would expect that an employee who has worked for such a short period of time would not be entitled to much notice, and typically this would be true. However, Mr. Dalton was also of a rather senior age, being 67 years old at the time of his termination.

Mr. Dalton’s age was a significant factor in this case. In assessing what amount of notice would be reasonable, the trial judge stated:

“Age is a factor that bears so importantly upon the prospects for other similar employment and employers who terminate the employment of older employees must appreciate the difficulty that is thrust upon older employees who are on the receiving end of a wrongful dismissal.”

Consequently, the trial judge noted that the consequences of terminating Mr. Dalton without notice were more severe than they would have been for many other employees. With this in mind, the trial judge concluded that three months’ notice was appropriate and awarded Mr. Dalton $11,440, plus costs. Not so bad for only three days of work!

The Duty to Warn

This case was also interesting because it reinforced the idea that employers should give their employees warnings, and then an opportunity to improve their behavior, before making the decision to terminate them without notice. There were undoubtedly many issues with Mr. Dalton’s work. Mr. Dalton was allegedly unproductive, uncooperative, and argumentative. The employer certainly had good reason to be concerned. However, the trial judge noted, quite instructively, that:

“Where there is an accumulation of a number of minor failings on the part of the employee, there is generally a duty on the employer to warn the employee. The employer must treat its employee fairly and with good faith, and must disclose to the employee the errors she or he is making, and give the employee an opportunity to correct the errant behaviour.”

The employer gave Mr. Dalton no such warning and no such opportunity to improve, instead opting to fire him sooner rather than later. This was a costly mistake. Had Mr. Dalton been warned that his performance and behavior was unacceptable, the employer may have been justified in terminating him without notice if he nevertheless continued with his substandard performance and behavior. As the employer gave no such warning, they were unable to terminate him without notice, ultimately resulting in the trial judge’s award of three months’ notice.

What Makes a Manager? Saunders v WestJet, an Alberta Partnership

Ms. Saunders was an agency sales representative with WestJet, her employer. She was terminated from this position on July 29, 2019. Following her termination, Ms. Saunders filed a complaint of unjust dismissal under section 240(1) of the Canada Labour Code (the “Code”). A finding that Ms. Saunders was unjustly dismissed under the Code would entitle her to reinstatement with back pay.

WestJet, however, objected to her complaint on the grounds that she was a manager. If true, this would be fatal to her case. This is because section 167(3) of the Code excludes employees who are managers from making use of the unjust dismissal provisions. If Ms. Saunders was truly a manager, she would be unable to bring her unjust dismissal complaint.

The problem, however, is that the term “manager” is not defined by the Code. The term has instead been defined over time by the jurisprudence of courts and adjudicators. How have they interpreted the meaning of “manager” for the purposes of the Code?

What Makes a Manager?

In determining whether somebody is a manager, courts and adjudicators have adopted a case-by-case approach which examines the specific context of the workplace and the nature of the work the employee actually performed. The employee’s title (i.e. “business development manager”) or rank within the employer’s organization is not determinative. This means that having the official title of “Manager” does not automatically make one a manager under the Code.

The term “manager” has been interpreted very narrowly so that the protections of the Code’s unjust dismissal provisions are applicable to as many employees as possible. This narrow interpretation reflects Parliament’s intent to extend the rights and standards enumerated in the Code to a broad range of employees.

In practice, the term “manager” is generally defined as an individual who acts as an administrator with the power of independent action, autonomy and discretion. To be a manager, the person must have the ability and authority to direct the work and make administrative decisions. According to the Federal Court, the “fundamental test” is whether the individual had significant autonomy, discretion, and authority in the conduct of the employer’s business. The Federal Court endorsed the following list of factors and guiding principles which should be considered in determining manager status:

“Guiding principles

the term “manager” has a narrow meaning;
the nature of the work actually performed must be examined;
the administrative element of the position in issue must be present;
the term “manager” is administrative rather than operational in nature;
the position can include managers at the upper or lower end of the management chain;
impressions and perception of the position by others as being part of management is insufficient;
title or place in the management chain in not determinative;
only exercising some managerial functions without authority is insufficient;
merely a conduit for higher body who is actual decision-maker or makes recommendation to higher body who approves or disapproves is insufficient.

Elements considered essential for a finding of “manager”

power to act and perform duties independently;
is part of management;
primary responsibility is to manage;
power or authority to hire, supervise, and otherwise be in charge of employees, including power to discipline and dismiss;
evidence of firing and disciplining must be proven;
responsibility for employer’s operations and managerial attributes required for that purpose, i.e., accountability for management functions;
sufficient or independent decision-making authority, though not absolute, and a certain measure of discretion;
authority to make final decisions of significance.” (emphasis added)

Was Ms. Saunders a Manager?
The adjudicator in Ms. Saunders’ case was tasked with deciding whether or not Ms. Saunders was a manager under the Code pursuant to the above jurisprudential tests and definitions. The burden rested on the employer WestJet to show that she was a manager and thus exempt from the unjust dismissal provisions.

Ultimately, the adjudicator found that Ms. Saunders was not a manager.

How did the adjudicator reach this decision?
The adjudicator focused on the nature of the work and duties performed by Ms. Saunders rather than her title or rank in the employer’s organization (the correct approach, as title and rank are not determinative of manager status). Ms. Saunders’ “primary responsibilities” included making sales calls and visiting traveling agencies to promote WestJet’s services. She represented WestJet at tradeshows and conferences and communicated marketing and sales initiatives. Significantly, she did not have any authority to hire, fire, discipline, promote, or determine compensation of any other employees, nor did she have any supervisory duties.

Employees who occupy a purely operational role within the organization are not “managers” under the Code. It is necessary that the employee have administrative functions, such as hiring and firing and promoting and budgeting. Ms. Saunders had none of these administrative functions – her role was purely operational. As a result, Ms. Saunders could not be a manager under the Code.

Taking into account all prior jurisprudence, this appears to have been the right decision. It has been positively relied on in subsequent decisions of the Canada Industrial Relations Board and will likely continue to prove influential in future manager cases.

CERB Continuing to be Deducted from Wrongful Dismissal Damages (Or Not?)

I wrote a blog post this past August discussing the potential impact of Canada Emergency Response Benefit (CERB) payments on wrongful dismissal damages. We looked specifically at the British Columbia Supreme Court’s decision in Hogan v 1187938 B.C. Ltd (“Hogan”), where Justice Gerow decided that CERB payments were deductible from wrongful dismissal damages. The rationale was that allowing the dismissed employee to be compensated for the reasonable notice period while simultaneously retaining the CERB payments they received but would not have been entitled to had they not been termination would amount to a “compensating advantage issue”. Effectively, this would compensate the employee for income he did not lose and would place the employee in a better position than he would have been in had he not been dismissed at all.

A Conflicting Approach: Not Deducting CERB Payments

As it turns out, this decision has not been universally adopted. For instance, in Snider v. Reotech Construction Ltd. (“Snider”), Justice Alexander of the British Columbia Provincial Court decided not to deduct CERB payments from the awarded wrongful dismissal damages based on the premise that the employee might have to repay the CERB payments in the same way one would repay EI benefits. Furthermore, allowing CERB payments to be deducted from wrongful dismissal damages only helps employers who already have other programs in place to assist them. It is better for the employee to receive the windfall avoided in Hogan than it is for the employer to be bailed out by the taxpayer-funded CERB payments through a reduced damages award.

With such conflicting approaches to the issue, it is hard to know which, if any, is “correct”. However, a more recent decision of the British Columbia Supreme Court appears to favour the approach in Hogan and may be of some guidance moving forward.

***Yates v. Langley Motor Sport Centre Ltd.: Affirming Hogan***

This was a case about an employee who, after only working 8.5 months with her employer, was temporarily laid off in response to the COVID-19 pandemic. After her temporary layoff expired, she was deemed to have been terminated on the day the layoff began. After considering all the facts, including the employee’s age (30) and relatively short length of service, the trial judge awarded the employee with 5 months’ compensation.

However, the evidence showed that the employee had already received $12,000 in CERB payments after her termination. The maximum monthly amount of CERB the employee could receive was $2,000 a month. The trial judge was therefore tasked with deciding whether $10,000 (i.e. 5 months’ worth of CERB payments) should be deducted from the wrongful dismissal damages. Whether or not the amount gets deducted depends on whether the trial judge adopts the reasoning in Hogan (i.e. avoiding the compensating advantage issue) or the reasoning in Snider (i.e. not using taxpayer money to bail out employers).

Ultimately, the trial judge opted to deduct the $10,000 in CERB payments from the award of wrongful dismissal damages. The trial judge found that the $10,000 would not have been paid to the employee had she not been terminated. Furthermore, the trial judge found that CERB payments were intended by the Government of Canada to indemnify employees for the loss of regular salary resulting from their employer’s breach of the employment contract (i.e. terminating the employee). Taken together, these two characteristics would make CERB payments “collateral benefits” as that term was described by the Supreme Court of Canada in IBM Canada Limited v. Waterman and would therefore justify their deduction from wrongful dismissal damages. Finally, contrary to what was argued in Snider, the trial judge found no basis upon which to conclude that the employee would be required to repay the CERB benefits if she obtained an award of wrongful dismissal damages.

As a result, the $10,000 received by the employee in the form of CERB payments was deducted from the award of wrongful dismissal damages.

Moving Forward

It appears as though there is not yet a consensus in the jurisprudence on the topic of CERB payments in the context of wrongful dismissal damages. Without any binding authority weighing in, we may continue to see inconsistent judgements being reached on the topic. We will have to wait and see whether the need arises for a Court of Appeal to weigh in.