By Howard Levitt
Here are some of the court cases that stood out in 2023
Jardine v. Phoenix Petroleum
Subject to employment standards minimums, employees can only seek their actual lost income over whatever period of time the court assesses damages. In other words, if a court decides that an employee is entitled to 12 months severance, all they will be entitled to is what they lost during those 12 months. From the 12 months will be deducted what the employer already paid in severance and any income earned during those 12 months. But not only new income an employee earns will be deducted from damages for wrongful dismissal: any income they could have reasonably earned as a result of the employee’s duty to mitigate — by seeking and accepting comparable work — will be deducted, too.
The fact that the employee did not look very hard for work is not sufficient to reduce their severance entitlement — there must be proof of an actual missed opportunity.
Donovan v. Quincaillerie Richelieu Hardware
This New Brunswick case dealt with a situation which was common during the pandemic. Donovan was laid off and then, months later, fired and sued for both the period of the layoff and for additional wrongful dismissal damages from the firing.
Incognito v. Skyservice Business Aviation
This Ontario case involved an employee suing their employer as a result of being allegedly sexually harassed by a coworker.
The court, however, found that one cannot sue in court for sexual harassment in Ontario but must proceed to the Human Rights Tribunal for redress instead. As well, in Ontario, an employer is not liable for the actions of its employees, agents or officers respecting harassment. This is despite the fact that the Code makes the employer responsible for other forms of discrimination by employees in section 46.3.
Harassment could, however, form the basis of an action for negligence or for constructive dismissal. If the workplace is intolerable to the objective employee as a result of serious harassment, that can form a constructive dismissal case. If the employer knows of the harassment or should know of it and takes no action, that could result in an action for negligence against the employer.
Rahman v. Cannon Design Architecture
This is significant if the titular employer has no assets capable of paying a judgment. Prudent counsel will sue all potential “employers.”
The Ontario Court of Appeal case also confirmed that, in Ontario, if a termination provision provides a right to terminate without severance for cause, the entire termination provision will be invalid. This is because the Employment Standards Act states that not all “cause” entitles an employer to dismiss without severance but only wilful misconduct.
Employers should carefully review their contracts because even such terms as confidentiality provisions, conflict of interest provisions or non-competition provisions which permit dismissal without notice or severance but are not limited to only wilful violations, could also invalidate the entire termination clause.