Header graphic for print
British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Category Archives: Damages

Subscribe to Damages RSS Feed

Make Whole Remedies and Good Faith Crucial to Mitigation

Posted in Best Practices, Damages, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.

In Fredrickson v. Newtech Dental Laboratory Inc.,  Leah Ann Fredrickson had worked for Newtech, a specialty dental laboratory, for about 8.5 years, when she took a leave of absence in connection with her husband’s illness and an accidental injury to her son. Newtech’s owner, Vince Ferbey, took issue with the manner in which Ms. Fredrickson took the leave and the effects on Newtech’s operations. When Ms. Fredrickson returned to work on July 20, 2011, Mr. Ferbey … Continue Reading

Maternity leave was no reason to reduce bonus

Posted in Damages, Employment Standards, Termination, Wrongful Dismissal

Employment agreement interpreted in light of statutory right to maternity leave

The recent decision of the B.C. Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court’s reluctance to allow an employer to use an employee’s maternity leave as a reason to reduce her bonus payment.

Janice Sowden was a regional marketing director for Manulife Canada Ltd. (“Manulife”). Her remuneration was made up of a base salary plus a variable bonus, calculated partly on her success in recruiting new financial advisors to work for Manulife. In essence, … Continue Reading

Reassignment of CN Employee a Constructive Dismissal

Posted in Constructive Dismissal, Damages, Litigation, Termination

A BC employee has successfully asserted a claim for constructive dismissal after being reassigned to a new position. Younger v. Canadian National Railway Company is a good reminder for employers that the courts may find there has been a constructive dismissal where an employee has been reassigned to a new position involving fewer responsibilities and a reduction in pay.

Younger had been a railway employee since graduating high school in 1973. He started working as a labourer and eventually advanced to a management position at CN. In 2004, CN assigned Younger to the position of Assistant Superintendent Mechanical (“ASM”), which … Continue Reading

What Do Your Policies Say About Termination?

… and does it matter?

Posted in Damages, Employment Standards, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause.  It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.

Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed.  The employer tried to limit its liability by reference to the policy set out in the employee handbook.  The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:

I Continue Reading

Damages for Injury to Dignity Significantly Increased by B.C. Human Rights Tribunal

Case signals Tribunal’s willingness to increase this kind of damages award in the future.

Posted in Accommodation, Damages, Discrimination, Human Rights

In Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, the B.C. Human Rights Tribunal awarded the complainant, Dr. Carl Kelly, $75,000 in damages for injury to dignity. This is more than double the previous highest award of $35,000, set in Senyk v. WFG Agency Network (B.C.) Inc., 2008 BCHRT 376.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. Between November 2005 and August 2007, Dr. Kelly experienced significant difficulties integrating with and passing his residency program rotations. He continuously consulted a psychiatrist and numerous … Continue Reading

Pension Benefits Not Deductible from Wrongful Dismissal Damages

More like private insurance

Posted in Benefits, Compensation, Pensions, Damages, Litigation, Termination, Wrongful Dismissal

The Supreme Court of Canada has decided that pension benefits received by a dismissed employee are not to be deducted from an award of wrongful dismissal damages.  The decision in IBM Canada v. Waterman affirms an earlier ruling of the BC Court of Appeal which we discussed here.

Mr. Waterman was a long-service employee who was terminated with two months’ notice when he was 65.  He rejected a severance offer that would have provided him some wages and some pension.  He sued for wrongful dismissal but in the meantime began to get payments under the defined benefit pension plan … Continue Reading

No Double Recovery by Employee

Employment Standards Damages Deducted from Wrongful Dismissal Damages

Posted in Damages, Employment Standards, Termination, Wrongful Dismissal

A British Columbia employer has won a case to avoid double recovery of Employment Standards and wrongful dismissal damages.  The decision in Roy v. Metasoft Systems Inc. is another piece of good news for employers to go with our recent post about the BC Human Rights Tribunal helping to discourage forum hopping.

Ms. Roy was a software sales associate.  She complained to her employer about not getting all the commissions she thought she had earned.  She threatened to file a complaint for unpaid wages with the Employment Standards Branch.  The employment relationship went downhill from there and her employment was … Continue Reading

Duty to Mitigate is Alive and Well

Plaintiff should have pursued job opportunity

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal

There was a job opportunity for the terminated employee.  He didn’t pursue it and he didn’t provide a reasonable excuse.  His claim for wrongful dismissal damages was denied.

Rod Koenig had been hired by Brandt Tractor in 1987 and was terminated 22 years later.  He was given 9.5 months of working notice in January 2009, finished work in October 2009 and didn’t start new employment until April 2010.

But in June 2009 he was approached by a former work colleague, Mr. Jones, about a comparable position.  Mr. Koenig expressed no interest and did not pursue the opportunity.  Mr. Jones considered … Continue Reading

More Punitive Damages

Posted in Damages, Just Cause, Litigation, Termination, Wrongful Dismissal

Another BC employer has been hit with punitive damages.  There have been cases where flawed investigations have led to punitive damages (see the Vernon case in BC, and Home Hardware in Alberta), and there have been jury awards for bad employer conduct (see Babine Forest Products in BC, and Wal-Mart in Ontario).  Now another BC Supreme Court case – Kelly v. Norsemont Mining Inc. – has awarded punitive damages for the conduct of the employer.

Kelly sued and complained he was dismissed for insisting the company adhere to securities regulations.  The employer vigorously defended.  Not only did it say … Continue Reading

Workplace Investigations – Part 2

Posted in Damages, Discipline, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In an earlier post, we discussed when employers may wish to conduct workplace investigations.  In this post we’ll discuss who should conduct the investigation.

Being lawyers, we usually have a quick answer to this:  legal counsel. We recognize, however, that clients don’t have unlimited funds.  So practically speaking, each situation will have to be assessed on its own facts.

In situations where a simple fact finding determination and assessment of credibility are all that is needed, the skilled manager can suffice, with counsel in the background to point them in the right direction and give legal advice based on any … Continue Reading

Workplace Investigations – Part 1

Posted in Damages, Investigations, Just Cause, Termination, Wrongful Dismissal

With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations.  When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation.

In this and subsequent posts, we will review some key legal issues that arise in conducting or directing a workplace investigation, including privacy, confidentiality, and the issue of legal privilege.

We will also discuss who should conduct the investigation, including when to use counsel, and when investigating counsel should be different than an employer’s usual employment counsel.

Finally, we’ll discuss some … Continue Reading

Wal-Mart Ordered to Pay Over 1 Million in Damages

Posted in Damages, Discrimination, Just Cause, Litigation, Termination, Wrongful Dismissal

On October 10, 2012, a jury awarded a former Wal-Mart employee over $1.4 million dollars in damages.  The jury found that the employee was constructively dismissed due to an abusive work environment at the Windsor Wal-Mart store.  This is the largest such award in Canadian history and, as expected, will be appealed by Wal-Mart.

Summary of the Claim

Although the case is not publicly available, we can glean some facts from media reports and the Statement of Claim.

Meredith Boucher was an assistant manager at a Wal-Mart in Windsor, Ontario with nine years service. She alleged abuse by the store … Continue Reading

Month in Review

Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.

Visit the summary here.

 … Continue Reading

Limitation Act

Posted in Damages, Termination, Wrongful Dismissal

The Government of British Columbia is introducing a new Limitation Act, setting out the time limit people have to file civil law suits in British Columbia.  On October 2, 2012, the Government announced that the new Limitation Act will come into effect on June 1, 2013.

This is relevant for employers who may be subject to court actions for breach of an employment contract, such as wrongful dismissal.  Presently in British Columbia, such a claim can be made up to six years from the date of the termination or other incident giving rise to the claim.  The new Limitation Continue Reading

Jury Trials in Employment Cases

Another US/Canada Difference

Posted in Damages, Litigation, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Jeff Polsky has responded on the issue of at will employment and we’ll accept that there is good and bad in both systems.  The most important thing for employers from either the US or Canada operating in the other country is to understand the difference and make appropriate adjustments in hiring and firing practices.

Jeff’s post also asked about jury trials in Canada, and specifically whether it was really true that employment claims don’t go to juries and don’t result in punitive damage awards.

Both jury trials and punitive damages are possible in Canada, but they are rare and limited.  … Continue Reading

Reputation Damages for Terminated Employee

Tipple Case Follows Wallace

Posted in Damages, Termination, Wrongful Dismissal

Yes, an employee can recover for damage to his reputation caused by the manner of termination of his employment.  This is not a surprising outcome based on the principles established by the Wallace decision of the Supreme Court of Canada, but it took a Federal Court of Appeal review of an earlier decision to get there.  (Tipple v. Attorney General of Canada, 2012 FCA 158)

Douglas Tipple was a senior executive in the federal public service.  He was terminated amidst some controversy but an internal investigation cleared him of wrongdoing.  Unfortunately for Tipple, that message was never … Continue Reading

At Will Employment: What’s the Big Deal?

Posted in Damages, Employment Standards, Just Cause, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Employment in Canada is not “at will”. But is at will employment really all it’s cracked up to be? Does it make the United States a friendlier place for employers?

We don’t think so and we are happy to engage Jeff Polsky in the discussion.

Jeff started this on the California Employment Law blog with a post, Like a Whole Different Country, suggesting that being an employer without at will employment was too scary to contemplate. Well, the fact is that employers in Canada are doing just fine, thank you very much, having traded the lottery of at will … Continue Reading

When Changing a Bonus Can be Constructive Dismissal

Posted in Benefits, Compensation, Pensions, Constructive Dismissal, Damages, Termination, Wrongful Dismissal

A judge in BC has ruled that a unilateral change to an employee’s bonus was constructive dismissal:  Piron v. Dominion Masonry.  That was despite the employer’s plea that the bonus was discretionary, and despite the evidence that the bonus varied widely from year to year and project to project.

The case highlights the need for employers to be careful about how incentive compensation is determined, especially if they want to be able to claim it is discretionary in any way.

James Piron was a 44 year old masonry foreman who had worked for Dominion Masonry for 19 years.  He … Continue Reading

Jury Awards Punitive Damages

Posted in Damages, Just Cause, Litigation, Termination, Wrongful Dismissal

A jury in Prince George, British Columbia has awarded $573,000 in punitive damages to a terminated employee.  It may be the highest such award in Canadian employment law history.

The employee had worked for Babine Forest Products for 34 years.  The company was acquired by Portland, Oregon based Hampton Lumber Mills in 2006.  The employee was then dismissed for cause without notice or compensation.

A jury trial does not result in reasons for decision, but it seems the jury was convinced that there was no cause for dismissal, that the employer had cooked up the cause excuse to avoid severance … Continue Reading

Termination Clauses and Mitigation

Posted in Damages, Employee Obligations, Employment Standards, Litigation, Termination, Wrongful Dismissal

A recent Ontario Court of Appeal decision sounds a warning to employers – if you want to have a set amount of notice or compensation for termination without cause, AND you want to require the former employee to mitigate, you need to say so explicitly in the contract.

Goss Power Products had a written contract with its employee Bowes that stipulated that he would get six months notice or salary in lieu of notice if he was terminated without cause.  On termination, Bowes was told he would get six months salary continuance if he looked for other employment.  He was … Continue Reading

Deduction of Pension Benefits from Wrongful Dismissal Damages

Posted in Benefits, Compensation, Pensions, Damages, Termination, Wrongful Dismissal

In Waterman v. IBM Canada [2011] S.C.C.A. No. 427 (QL), the Supreme Court of Canada has granted leave to appeal a decision of the BC Court of Appeal deciding that pension benefits are not deductible from wrongful dismissal damages.

The Plaintiff Waterman was terminated without cause by IBM after approximately 42 years of service.  Upon termination, he began receiving full pension benefits under IBM’s defined benefit pension plan, which was entirely funded by IBM.

Waterman gave evidence that did not want to retire at the time his employment was terminated, even though he had the right to retire on full … Continue Reading