Update on Recent Appeal Decisions

Update on Recent Appeal Decisions

mediationA number of interesting cases have been handed down by the Court of Appeal and the Supreme Court of Canada in the last few months.  The following is a summary of these cases to bring you up to  speed.

Moore v. Getahun, 2015 ONCA 55 – Reviewing Expert Reports

When this case was decided at trial, litigators all over Ontario were at a loss.  The long-standing practice of assisting expert witnesses in framing their reports during the drafting process was held to be no longer acceptable.  Fortunately, the Court of Appeal set things right and litigators across the province breathed a collective sigh of relief.

In the reasons for the decision, the Court of Appeal stated, “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case… Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”

Imagine proceeding to trial, needing an expert witness’ opinion, but your lawyer is unable to provide guidance on how the witness’ expert report should be presented.  Luckily, the Court of Appeal has made certain that this is not a concern for litigants.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 – Right to Strike

Preventing essential services from taking strike action is a hot-button topic.  At the end of January, the Supreme Court of Canada dealt with the issue of the constitutionality of a collective bargaining unit’s right to strike.

In December 2007, the Government of Saskatchewan enacted legislation to limit the ability of public sector employees in essential services from participating in strike action. However, section 2(d) of the Canadian Charter of Rights and Freedoms provides for the fundamental freedom of association.  The Supreme Court of Canada found that a prohibition on designated employees participating in strike action was a substantial interference with a meaningful process of collective bargaining and therefore a violation of the freedom of association.

The Supreme Court of Canada also concluded that this violation of section 2(d) was not a reasonable limit allowable under section 1 of the Canadian Charter of Rights and Freedoms.  Although the maintenance of essential public services is a pressing and substantial obligation, the legislation went beyond what is reasonably required to ensure the uninterrupted delivery of essential services and failed to provide a meaningful alternative mechanism for resolving bargaining impasses, like arbitration.

Union members should not take this case to mean that the right to strike is absolute.  Rather, the right to strike of employees in essential services may be restricted, provided that the limit is reasonable and allows for other ways to resolve deadlocks in negotiating collective agreements.

Arnone v. Best Theratronics Ltd., 2015 ONCA 63 – Bridging Until Retirement

I wrote about the trial decision in October 2014.  In this case, the plaintiff, Mr. Arnone, was 53 years old with 31 years of service when his employment as a manager ended. At that time, he was 16.8 months away from retiring with an unreduced pension.  The trial judge emphasized this in assessing the appropriate notice period to be 16.8 months.

In his reasons, the trial judge stated, “Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” From this, it appeared as if the court was stating that the assessment of a notice period could include factors outside of those cited in Bardal v. Globe & Mail Ltd., namely “the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

I was somewhat surprised by this decision.  As I wrote last year, it seemed that “This decision underscores that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.”

Thankfully, the Court of Appeal clarified that “The Bardal analysis remains the approach courts must apply to determine what constitutes reasonable notice of termination, an approach which has not included a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension.”

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
Bhasin V. Hrynew: Good Faith In Contractual Performance

Bhasin V. Hrynew: Good Faith In Contractual Performance

Employment LawUntil last month, there was no one conclusive decision in Canadian case law as to whether or not there was a common law duty of good faith in the performance of contractual obligations.  The Supreme Court of Canada’s decision in Bhasin v. Hrynew, 2014 SCC 71 last month changed that.  This case stands for the proposition that the common law does indeed impose a duty on parties to perform contractual obligations honestly based on a general organizing principle of good faith contractual performance.

The following is a summary of some of the highlights from this decision:

  1. At paragraph 33 of the decision, the Supreme Court of Canada concluded that it was time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just:
    • The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance.
    • The second step is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty of honesty which applies to all contracts to act honestly in the performance of contractual obligations.
  2. According to Mr. Justice Cromwell, writing for the majority, these two steps “will put in place a duty that is just, that accords with the reasonable expectations of commercial parties and that is sufficiently precise that it will enhance rather than detract from commercial certainty.”
  3. The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner.
  4. At paragraph 60, Mr. Justice Cromwell states, “Commercial parties reasonably expect a basic level of honesty and good faith in contractual dealings.  While they remain at arm’s length and are not subject to the duties of a fiduciary, a basic level of honest conduct is necessary to the proper functioning of commerce.  The growth of longer term, relational contracts that depend on an element of trust and cooperation clearly call for a basic element of honesty in performance, but even in transactional exchanges, misleading or deceitful conduct will fly in the face of the expectations of the parties.”
  5. Since the duty of honesty in contractual performance is a general doctrine of contract law that applies to all contracts, parties are not free to exclude it.

One of the questions raised by this decision is, “How does this affect employment law?”  The simple answer is that it does not.  As noted by Mr. Justice Cromwell at paragraph 54, the above-noted principles are entirely consistent with the Supreme Court of Canada’s earlier decisions in Honda Canada Inc. v. Keays, 2008 SCC 39 and Wallace v. United Grain Growers, 1997 CanLII 332 that all employment contracts have an implied term of good faith in the manner of dismissal.  This decision merely serves to reinforce what we already knew about the employer’s duty of good faith and fair dealing – which is one of the things that the Supreme Court of Canada was looking to achieve with this decision.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  
A Child’s Legal Guide to Separation and Divorce – Resource

A Child’s Legal Guide to Separation and Divorce – Resource

Separation and Divorce in Ontario Child's Guide

Separation or divorce is the result of problems between parents and not the fault of the child. But it does affect children and they may have questions about the law of separation and divorce. It is often difficult to answer questions in terms that children will understand. The Ministry of the Attorney General published a well rounded resource that explains legal terms relating to all aspects of separation and divorce and child matters in an easy to understand format.

 

 

The guide,  “A Child’s Legal Guide to Separation and Divorce” contains sections covering;

  • Separation and Divorce
  • Custody
  • Access
  • Parental Disagreements
  • Changes in Custody and Access
  • Parents’ New Partners
  • Money Issues
  • Getting Help
  • Dictionary of Terms

Also included is a list of the books you might want to read about how most children feel when their parents separate or divorce.

Download the Guide:
A Child’s Legal Guide to Separation and Divorce

Published by the Ministry of the Attorney General  Source – Family Law in Ontario

Separation & Divorce – Documents Required to Change a Child Support Order

Separation & Divorce – Documents Required to Change a Child Support Order

child-supportIf you need to get or change a child support order under the Child Support Guidelines, the court will require income information.

Child Support Guidelines are determined by a support table based on the support paying parent’s annual income and number of children entitled to support.

Departing from the support table amount is allowed in certain circumstances, shared custody costs, or in some cases of undue hardship.

Documents must be provided by the parent receiving support, only in cases where the amount of child support requested is different from the amount on the support table or in addition to the table amount. 

If the request for the amount of child support is the same as the amount on the applicable Child Support Guidelines support table, without variation or any claim for contribution to special or extra-ordinary expenses, then only the parent paying child support is required to supply this information.

  • A copy of your personal income tax returns filed with the Canada Revenue Agency for each of the three most recent taxation years together with all material that was filed with the returns.
  • A copy of every notice of assessment and re-assessment that you have received from the Canada Revenue Agency for the three most recent taxation years.
  • (For those who are an employee) The most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not available, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
  • (For those who are self-employed) The following documents for the three most recent taxation years:
    1. the financial statements of your business or professional practice, other than a partnership; and
    2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom you do not deal at arm’s length.
  • (For those who are partners in a partnership) Confirmation of your income and draw from, and capital in, the partnership for its three most recent taxation years.
  • (For those who control a corporation) The following documents for its three most recent taxation years:
    1. the financial statements of the corporation and its subsidiaries; and
    2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
  • (For those who are a beneficiary under a trust) A copy of the trust settlement agreement and copies of the trust’s three most recent financial statements.
  • (For those who receive income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source) The most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.

Source: Ontario Ministry of the Attorney General

“WHAT ABOUT MY PENSION?!” – TERMINATION WHEN RETIREMENT IS IN SIGHT

“WHAT ABOUT MY PENSION?!” – TERMINATION WHEN RETIREMENT IS IN SIGHT

pension“I can’t wait for the day when I reach the Magic Number!” This thought often runs through the minds of employees with 20 or more years of service, and fortunate enough to be vested in a pension. With each passing year, these employees give more and more thought to the sum of their age plus years of service – that Magic Number which many pension plans require for participating employees to retire and begin receiving benefits.

For example, the terms of a pension plan may require a Magic Number of 90 in order to retire with an unreduced pension. A 63 year old employee with 27 years of service meets that requirement. However, a 62 year old employee with the same years of service does not. While the former employee can look forward to retirement, the latter employee may be in a precarious position until his next birthday or his next completed year of  service. Until that point in time, the latter employee has to worry about the possibility of termination and the potential loss of that unreduced pension.

The recent decision of the Ontario Superior Court of Justice in Arnone v. Best Theratronics Limited, 2014 ONSC 4216 highlights this concern.

Facts of the Case

The plaintiff, Mr. Arnone, was a 53 year old sales and customer support manager with 31 years of service. At the date of his dismissal, he was 16.8 months away from being able to retire with an unreduced pension.

In his Claim, Mr. Arnone sought damages based on a notice period of 24 months. He also sought damages of $65,000 which represented the actuarial calculation of the amount needed to compensate for the loss of the unreduced pension.

Although Justice James disagreed that Mr. Arnone was entitled to a notice period of 24 months, the judge noted that “the fact that the plaintiff was less than two years away from being entitled to an unreduced pension should not be ignored in the factual matrix surrounding his termination. Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” In other words, Mr. Arnone’s impending retirement was a factor to consider in assessing the appropriate notice period.

Justice James concluded that, absent the fact that Mr. Arnone’s retirement was on the horizon, the appropriate notice period was 22 months. Nevertheless, the judge limited damages for pay in lieu of notice to the equivalent of the 16.8 months Mr. Arnone would have needed to retire with an unreduced pension. To account for the fact that Mr. Arnone would no longer receive pension benefits, Justice James also awarded damages of $65,000 to compensate for that loss.

Interestingly, Justice James did not deduct the income earned by Mr. Arnone after dismissal. In support of this, the judge held, “An arrangement to bridge an employee to the point he or she would receive an unreduced pension in circumstances where this period of time is less than the appropriate common law notice period would reasonably include a concession on the part of the employer not to require mitigation efforts.”

Practical Considerations

The take-aways from this case include the following:

  1. A pension is often an employee’s most significant asset.  In cases where the termination of employment is without cause and  retirement with an unreduced pension is on the horizon, it is important for the employer to consider the interplay between the range of reasonable notice the employee’s Magic Number.
  2. This decision underscores that fact that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.
  3. Where the loss of pension benefits is claimed, an actuarial calculation based on correct assumptions is essential.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Separation & Divorce – Creating a Parenting Plan

Separation & Divorce – Creating a Parenting Plan

Creating a Parenting Plan

parenting-planA parenting plan outlines more information and flexibility than traditional custody agreements because they are negotiated and discussed between the parents and address all aspects of child custody. Parents can incorporate as much or as little information as needed and  agree to change the plan as your situation requires. A parenting plan outlines the parenting arrangements for a child including a schedule of the times each parent will spend with the child and information about who will make major decisions about education, medical care and more.

The parenting plan needs to be practical, according to each parent’s situation and in your child’s best interests. It’s important to set out ground rules about what information you will share with each other about the children and to decide how you will discuss parenting issues that come up from time to time. This includes information about education and school work, health and dental care, counselling, and who can attend school events, parent-teacher meetings and extra-curricular activities.

What to Consider When Making a Parenting Plan

  1. Living arrangements and parenting schedules
  2. Vacation, holidays and special days
  3. Health care
  4. Education
  5. Extra-curricular activities
  6. Religion
  7. Culture
  8. Grandparents and extended family
  9. Travel
  10. Communication between parents
  11. Making changes to parenting plan
  12. Solving Problems
  13. Child support

Source for detailed discussion points on each topic: Department of Justice

Resources

Legislation

Separation & Divorce – Daycare Part 3

Separation & Divorce – Daycare Part 3

daycare3There is an end in sight when it comes to daycare expenses.  But parents don’t always agree on the age at which daycare is no longer necessary.  Daycares are usually licensed to take children up to and including the year they turn 12 years old.  Some parents are comfortable leaving a child alone at home as early as age 10; some prefer to have them in care until age 12.    Perhaps a parent feels that it is not necessary to pay for before and after school daycare for an 11 year old, if the child is alone for only a half hour.  Maybe it makes a difference if the child would be left alone before, or after, school.  

Childcare then becomes not only a financial issue, but a parenting decision.  If possible, include a provision in your separation agreement about when you expect payments for daycare to cease.  Knowing how long each of you is prepared to contribute to childcare impacts both the child and the parent and should be part of any settlement discussions.    

As in most custody and access cases, the facts are specific to your situation and decisions are best made by you, the people who know your children best.  Whenever possible, try to prevent future arguments by planning ahead and negotiating child support issues, including when the childcare obligation ends, well in advance.  Separation agreements should look to the future and deal with foreseeable situations comprehensively.

Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact Simonetta A. Lanzi 

Related Links:

Family Law & Divorce

The Matrimonial Home & Divorce

Separation & Divorce – Issues Relating to Day Care – PART 1

Separation & Divorce – Issues Relating to Day Care – PART 2

Separation & Divorce – Daycare Part 2

Separation & Divorce – Daycare Part 2

Daycare costs change substantially over time, particularly in the early childhood years.  Depending on how young your child is, daycare will be for the full day and for the full year; once the child starts kindergarten, which is now full day in our jurisdiction, the cost will decrease to before and/or after school only.  Some daycares allow part-time arrangements, but most require full-time enrollment even if the child does not attend every day.  If you are sharing custody a week at a time, and only one parent requires daycare, special arrangements would have to be made if possible.

For the summer, daycare attendance will likely increase to full day again, depending on the parents’ work schedules.  Even if you have vacation time and plan to be home with the children, the daycare may require you to pay either a portion or the full amount of the daycare cost for the summer to keep the spot.  If you choose to put the child in camps, instead of daycare, this expense would likely be considered a childcare expense to be shared.  

If, however, you choose to put your child in a camp during your week or two of extended access, rather than staying home with him or her, the cost of camp would likely be only your responsibility.  If you either share the summer or each have a dedicated week or two of ‘vacation’ access, the presumption is that you will spend it with your child and have no need for daycare.  It may be your choice to have the child attend camp during the day in any event — don’t assume that the other parent will share the expense in that case.  Talk about it and try to agree ahead of time on how you plan to handle holiday childcare costs so that you both have a full understanding of the child support obligations.

Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact Simonetta A. Lanzi 

Related Links:

Family Law & Divorce

The Matrimonial Home & Divorce

Separation & Divorce – Issues Relating to Day Care – PART 1

Time To Take Workplace Harassment and Abuse Seriously

Time To Take Workplace Harassment and Abuse Seriously

The Ontario Court of Appeal’s decision inBoucher v. Wal-Mart Canada Corp., 2014 ONCA 419, is an excellent example of the consequences that can follow from failing to handle claims of workplace harassment and abuse carefully.

Facts of the Case

Meredith Boucher started working for Wal-Mart in 1999.  After 9 years, she rose to the position of Assistant Manager at a store location in Windsor.  In May 2009, her working relationship with her supervisor and Store Manager, Jason Pinnock, deteriorated after she refused to falsify a temperature log.  According to the decision, thereafter Mr. Pinnock continuously humiliated and demeaned Ms. Boucher, often in front of other employees and using profane language.

Ms. Boucher eventually filed a complaint about Mr. Pinnock’s conduct under Wal-Mart’s Prevention of Violence in the Workplace Policy.  However, in November 2009, senior management concluded that Ms. Boucher’s complaints were unsubstantiated and informed her that she would held accountable for making the allegations.

As stated in the decision, shortly thereafter, Mr. Pinnock once again humiliated Ms. Boucher in front of other employees.  This time, he grabbed Ms. Boucher by the elbow and told her to prove to him that she could count to ten by counting out loud ten pallets of products that had yet to be unloaded.  This caused Ms. Boucher to resign and a constructive dismissal action followed two weeks later.

Trial Decision

At trial, the jury concluded that Ms. Boucher was constructively dismissed and awarded her damages for pay in lieu of notice equivalent to 20 weeks of salary, aggravated damages of $200,000.00 and punitive damages of $1,000,000.00 against Wal-Mart.  The jury also awarded her damages for mental distress of $100,000.00 and punitive damages of $150,000.00 against Mr. Pinnock.

Both Wal-Mart and Mr. Pinnock appealed on the basis of liability and the quantum of damages for mental distress, aggravated damages and punitive damages.  Ms. Boucher cross-appealed the dismissal of her claim for future loss of income.

Appeal Decision

Mental Distress

In order to succeed on a claim for intentional infliction of mental distress, the employee must show:

  1. the defendant’s conduct was flagrant and outrageous;
  2. the defendant’s conduct was calculated to produce harm to the employee; and
  3. the defendant’s conduct caused the employee to suffer a visible and provable illness.

Although the Court of Appeal found the award of $100,000.00 very high, it was not so plainly unreasonable that it should be set aside.  The award reflected the fact that the jury, representing the collective conscience of the community, was deeply offended by Mr. Pinnock’s misconduct.

Aggravated Damages

Aggravated damages compensate an employee for additional harm suffered as a result of the bad faith or unfair way in which the employment agreement was terminated.  Wal-Mart argued that an award of aggravated damages in addition to damages for mental distress amounted to double recovery for the same wrong.  The Court of Appeal rejected this argument on the basis that the unfair way Wal-Mart handled Mr. Pinnock’s misconduct and Ms. Boucher’s complaint constituted a separate wrong from the actions of Mr. Pinnock.

Wal-Mart also argued that the award of $200,000.00 was excessive.  Nevertheless, while the quantum of the award was unprecedented in Canadian employment law, the Court of Appeal concluded that it was not so inordinately high that it was plainly unreasonable and upheld the jury’s award.

Punitive Damages

Unlike damages for mental distress and aggravated damages, punitive damages are not compensatory.  They are intended to act as the court’s denunciation where a defendant’s conduct has been malicious, oppressive and high-handed.  The employee must also show that the award is rationally required to meet the objectives of retribution, deterrence and denunciation.

The Court of Appeal, at paragraph 61, had no difficulty in concluding that Mr. Pinnock’s conduct amounted to “a marked departure from the ordinary standards of decent human behavior.”  Yet, having regard to the fact that the damages for mental distress already carried a strong punitive component, the Court of Appeal concluded that an additional award of $150,000.00 was not rationally required to achieve the purpose of punitive damages.  The amount, as awarded against Mr. Pinnock, was reduced to $10,000.00.

In cases of breach of contract, such as an employment agreement, an award of punitive damages also requires an actionable wrong independent of the underlying breach of contract claim.  Vicarious liability for the actions of another employee is not enough.  The actionable wrong must be committed by the employer and requires more than just negligent conduct.  In this case, the Court of Appeal concluded that Wal-Mart breached its duty of good faith and fair dealing towards Ms. Boucher, a separate actionable wrong that justified an award of punitive damages against Wal-Mart.

However, the Court of Appeal also noted that Wal-Mart was liable for $200,000.00 in aggravated damages, damages for constructive dismissal, $140,000.00 in trial costs, as well as $100,000.00 in mental distress damages against Mr. Pinnock for which Wal-Mart was vicariously liable.  As such, a further award of $1,000,000.00 in punitive damages was not rationally required.  The Court of Appeal reduced this head of damages to $100,000.00.

Future Loss of Income

Ms. Boucher argued that the trial judge erred in failing to award her damages for future loss of income in the amount of $726,601.00.  The Court of Appeal upheld the trial judge’s decision.

According to paragraph 103 of the reasons for the decision, “A claim for future loss of income can arise in an employment context where a plaintiff has not recovered from the effects of the wrongdoer’s action and the plaintiff has thus suffered a loss of any earning capacity because of the wrongdoer’s tortious conduct.”  In this case, Ms. Boucher recovered from her mental distress within two months of her resignation.  Thus, she was capable of earning an income, but simply could not secure comparable employment.

In essence, Ms. Boucher did not suffer a future loss of income, but a past loss of income.  The concept of reasonable notice is intended to assist the employee in securing comparable employment.  It is the writer’s opinion that if the employee is incapable of searching for new employment, due to the employer’s tortious conduct, the notice period should not start.  Until the employee has recovered from the employer’s wrong and the notice period can begin, the employee has a claim for the loss of income that would have been earned but for the termination of employment.

Practical Considerations

Some of the points to take away from this case are as follows:

  1.  This case reiterates that damages for mental distress are indeed a separate head of damages from aggravated damages which, in turn, are another separate head of damages from punitive damages.  Although the distinction may be seen as subtle, they are in fact discrete.
  2. Consequently, employers need to take claims of harassment and abuse in the workplace seriously and handle the investigation of such claims carefully.  Investigations should be handled by someone with the requisite training and skill set.  It is not enough to simply direct the matter to the HR manager or in-house counsel if he or she does not have any background in investigations.
  3. Since the Supreme Court of Canada’s decision in Keays v. Honda Canada Inc., personal injury litigation and employment litigation have become inextricably linked.  It is important to have employment counsel with knowledge and experience in both areas.  Medico-legal reports and subrogated OHIP claims are matters that employment lawyers have not always had to deal with.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

Gristey V. Emke Schaab Climatecare Inc.: The Effect Of Economic Factors On The Notice Period

Gristey V. Emke Schaab Climatecare Inc.: The Effect Of Economic Factors On The Notice Period

Wrongful Dismissal and Employer Notice

Justice Conlan’s decision in Gristey v. Emke Schaab Climatecare Inc. 2014 ONSC 1798 (Ont. S.C.J.) underscores the fact there is no complete catalogue of factors that go into determining the amount of notice that would be reasonable for an employee to receive.

By way of background, if an employee is let go without cause for dismissal, the employee is generally entitled to reasonable notice – either working notice or pay in lieu of notice.  There are, however, exceptions.  For instance, the employer and the employee can sign an employment agreement that limits the notice period to what the Employment Standards Act, 2000 provides.

The seminal decision in Bardal v. Globe and Mail tells us that there is no formula to determine how much notice of dismissal would be reasonable in any given case.  While the main considerations are the employee’s age, years of service, position and job market for comparable positions, the list of possible considerations is not fixed.

Facts of the Case – Wrongful Dismissal 

In this decision, the employer dismissed Mr. Gristey, a 54 year old gas technician with some supervisory responsibilities, after 12 years of service on a without cause basis.  The employer asserted that the basis for ending Mr. Gristey’s employment was a shortage of work.  Yet, the employer opted not to use a temporary layoff as provided for under theEmployment Standards Act, 2000.

Instead, the employer paid Mr. Gristey 8 weeks of termination pay and offered an additional 8 weeks as a gratuitous payment in exchange for a signed Full and Final Release.  Not surprisingly, Mr. Gristey refused the employer’s offer and sued for wrongful dismissal.

Issue Before the Court – Damages in Lieu of Notice

At trial, the main issue for Justice Conlan to consider was the appropriate amount of damages for pay in lieu of notice having regard to the fact that the employer no longer had enough work to keep Mr. Gristey busy.

Taking into account the Court of Appeal’s decision in Bohemier v. Storwal International Inc., Justice Conlan accepted the employer’s submission that its declining financial health should be a relevant consideration and discounted the initial assessment of a 12 month notice period by one-third to 8 months.  At paragraph 59 of the decision, Justice Conlan states:

Essentially, this is a recognition (as I have said above), had Mr. Gristey’s employment not been terminated, he would have likely worked less hours during the notice period.  Thus, it would not be fair to the Defendant to apply the full twelve-month notice period.

 Practical Considerations

There are a couple of take-aways from this decision.

First, paying an employee the bare minimum required by the Employment Standards Act, 2000 is not necessarily going to be enough of a deterrent to prevent the employee from starting a wrongful dismissal action.  There are other factors that must be considered.  Competent employment counsel can help you make this determination.

Second, judges deciding a case are ultimately concerned with arriving at a fair result.  This case is a good example of the analysis that a judge goes through in balancing fairness.  Employers and employees alike should keep in mind that the employer’s financial health is a factor that can tip a judge’s scales in assessing the reasonable notice period.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.

Separation & Divorce – Issues Relating to Daycare

Separation & Divorce – Issues Relating to Daycare

If you have young children, part of your financial obligation will involve some sort of childcare cost.  On divorce or separation, the parents will normally share this “special expense”, provided daycare is necessary due to work, education or health reasons.   If you are given receipts by the daycare provider, you can claim a deduction on your taxes for daycare expenses. The rule that the lowest income earner must claim the deduction while you are living in the same home no longer applies once you separate and live at different addresses.

Sharing Daycare Expenses in Divorce or Separation

When deciding how to share daycare expenses, the parents must first determine which proportion each of them will pay — will you share it 50/50 or in some other proportion?  Will you each pay your share directly to the caregiver or will one of you pay the caregiver or daycare centre and be reimbursed by the other parent?  In both cases, you have to take into account the tax deduction.  If one parent pays the whole amount, the other reimburses his or her share of the actual cost, once the deduction is taken into account.

Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact Simonetta A. Lanzi 

Related Links:

Family Law & Divorce

The Matrimonial Home & Divorce

Estate Administration Tax

Estate Administration Tax

Estate Administration Tax: An Overview Before Applying for a Certificate of appointment of Estate Trustee

If you require a Certificate of Appointment of Estate Trustee, the estate administration tax (EAT) must also accompany the application to the Ontario Superior Court of Justice. There are a few exceptions for paying EAT, as outlined under Rule 74.13(2)-(4) of the Rules of Civil Procedure. The EAT is paid to the Minister of Finance and is based on the value of the deceased’s property at the time of death. 

The Estate Trustee is obligated to pay a higher tax if it is established later on that the value of the estate is greater than what was originally submitted. The Estate Trustee may also get a refund if EAT was based on an estimate and was overpaid (s 3 of the Estate Administration Tax Act, 1998)

What is included in calculating the Estate Administration Tax? 

Generally, the fees are based on the deceased’s assets under his or her name alone. As an example, jointly held property that passes by right of survivorship is excluded from the calculation. Benefits payable to a designated beneficiary under a “plan,” as defined by Part III of the Succession Law Reform Act and proceeds from life insurance on the deceased payable to a designated beneficiary are excluded. Real property that is located outside of Ontario is also excluded from EAT calculations. Most debts and liabilities will not reduce the value of the estate for EAT purposes, with the exception of an encumbrance registered against the real property of the deceased: s 1 of the Estate Administration Tax Act, 1998. 

How are these taxes calculated? 

Section 2 of the Estate Administration Tax Act, 1998 states that if the value of an estate does not exceed $1,000, then no EAT is paid. 

The formula for calculating the EAT is as follows (s 2(6) of the Estate Administration Tax Act)

$5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate; and 

$15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000. 

The Ontario Ministry of Attorney General provides a chart detailing EAT amounts based on estates valued from $1,000 to $5 million: 

http://www.attorneygeneral.jus.gov.on.ca/english/estates/pre_calculated_estate_administration_tax_table.pdf

Written by Laura Chiu, Reilly and Partners. Laura joined Reilly & Partners Professional Corporation as an associate after her call to the bar in 2013. Prior to this, Laura gained experience as a summer and articling student in the areas of real estate, administrative law, commercial and civil litigation, and estates and trusts.