Doctors' Notes - Better Late than Never

Doctors are very busy people.  What doctors are primarily busy with are sick people.  Unfortunately, in addition to treating to the sick doctors are asked to complete a lot of paperwork confirming that those people are sick.  What happens, however, when a doctor is late in providing the necessary information to an employee’s employer or disability insurer?  Can the employer reasonably assume that because no medical note has been provided the employee has abandoned his position?

In a decision released June 26, 2012, Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448, the Court of Appeal for Ontario made two important rulings: (1) the contextual approach in McKinley remains the appropriate approach for unjust termination cases; and (2) concerns a labour arbitrator expresses about an employee’s lack of candour in the arbitration process are not relevant to the wrongful dismissal analysis as any dishonesty on the claimant’s part at that stage played no part in the employer’s decision to terminate his employment.

Protecting Employee Reputations

Reputations are fragile things.  They take forever to build, but very little time to destroy.  In the recent case of Tipple v. Canada (Attorney General), 2012 FCA 158, reasons for decision released May 29, 2012, the Federal Court of Appeal was asked to answer the question of whether an employer has a free-standing duty to protect an employee’s reputation at the time of termination.

The answer was a “no, but...”

Fixing the Duty to Mitigate

(c) istock/AndreyPopov

Is an employee, who is terminated without cause, required to mitigate his or her loss when entitled to a fixed term of notice or pay in lieu, and the contract of employment is silent with respect to mitigation?

In reasons for decision released June 21, 2012, Bowes v. Goss Power Products Ltd., 2012 ONCA 425, the Court of Appeal for Ontario answered that question in the negative.

I quit! You sue?

There are several ways to become “suddenly unemployed;” one of the ways not frequently canvassed in the employment law realm is that of voluntarily resignation. Although many are familiar with the concept of “wrongful dismissal,” the concept of “wrongful resignation” is much less frequently considered.

The first thing to observe with respect to resignation is that nowhere within the Ontario Employment Standards Act, 2000 will one find the legal requirement for an employee to provide two weeks’ notice of resignation. In fact, the word “resignation” barley appears within that law. This fact may lead some to believe that there is no duty to provide any notice of resignation; like many assumptions about the law, that belief may be incorrect.

Deducting WSIB from Wrongful Dismissal

One of the joys of being a “lawyer for the suddenly unemployed” is that one gets to work in the field of overlapping insurance policies and acronyms: LTD, CPP, WSIB, EI, and occasionally SABS. While issues concerning the deductibility of various payments from other entitlements is often enough to make one reconsider his career choice, a recent decision from the Ontario Superior Court does supply some clarity with respect to the issue of an employer’s right to set of WSIB (Workplace Safety & Insurance Board) benefits as against wrongful dismissal damages.

In a decision welcomed by employers’ counsel (see others’ commentary here and here) the Honourable Justice Roland Haines, in his reasons for decision in Jensen v. Schaeffler, 2011 ONSC 1342 held that an employee’s receipt of WSIB income replacement benefits was to be deducted from her common-law, but not statutory, wrongful dismissal damages.

Employee Should Have Taken Test Drive

Car dealerships have no shortage of gimmicks to get potential buyers to take a ‘test drive.’  The sales theory goes that if someone tries a car, he is more likely to buy it.  “There is no harm in testing it out,” the dealer will claim.  A recent Ontario Superior Court ruling concerning a car dealership parts and service manager’s constructive dismissal case appears to confirm that as much might be true.

 

In reasons released June 15, 2012, Ghanny v 498326 Ontario Limited, 2012 ONSC 3276, the Honourable Justice Edward Belobaba held that an employee that refused a similar job at the same rate of pay had failed to mitigate his damages with the result being that his wrongful/constructive dismissal claim was dismissed and he was ordered to pay costs of $15,000 to his employer.

No Costs for You!

One consequence of the increase to the jurisdiction of the Ontario Small Claims Court, from $10,000 to $25,000, is that some litigants – especially those commencing wrongful dismissal actions – are now being told that they are in the ‘wrong place, at the wrong time.’

In a decision released March 16, 2012, Shakur v. Mitchell Plastics, 2012 ONSC 1780, (the facts of which I earlier canvassed in my post titled "No finding of just cause notwithstanding workplace assault") the Honourable Justice David A. Broad held that a plaintiff who won $12,514.00 in a Superior Court action should be denied his costs because he received an amount within the jurisdiction of the Small Claims Court, notwithstanding the fact that when he commenced his case the limit of the Small Claims Court was only $10,000.