Div Court Finds No Frustration of Contract after 29-Month Disability Leave; Upholds Awards of Human Rights Damages and “Punitive” Costs

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Some decisions are just textbooks on employment law. They are ‘must read’ decisions for anyone looking to practice in this area. Boucher v Black & McDonald Ltd., 2016 ONSC 7220 is a key example of how to approach the following subjects: long-term absence; frustration of contract; human rights damages; and off-set of benefits for the receipt of long-term disability benefits.

The facts of the case are easy to understand and the statement of law is first-principles stuff. For anyone wondering what to do with an employee who has been absent from employment for a considerable period of time, here is a lesson in what not to do.

“An employer can only dismiss a probationary employee for just cause” – Why that statement may have been correct, but it doesn’t mean what you think.

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Does an employer require “just cause” to terminate the employment of an employee “on probation”? For the reasons that will follow, I would submit that, in Ontario, provided that the employer is provincially regulated, they do not.

I agree that my position would appear to stand at odds with the following statement made by the Honourable Justice Epstein in Mison v. Bank of Nova Scotia, 1994 CanLII 7383 (ON SC):

[43] … an employer can only dismiss a probationary employee for just cause.

Stay with me, this is about to get complicated.

Refusal to Hire Foreigners in Order to Keep the “White Man Working” both Morally Repugnant and Illegally Racist

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Is it “illegal” to refuse to hire an immigrant simply because he is a “foreigner”? Of course it is. That question should be an absurd way to start a post on a blog about Ontario employment law. And yet, here I am.

Since the election of Donald Trump as the president-elect of the United States, there has at least been a perception of an increase, if not an actual increase, in the number of hateful acts being perpetuated on both sides of the border. Many point to Trump’s election as a form of license to engage in such shameful, ignorant behaviour.

Typically, racism in the employment world has been more subtle. Systemic preferences have yielded predictable but less overt results.

Sometimes, however, racist motivations are patent and obvious. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 is the quintessential archetype of overt, unabashed racism in employment. I highlight this case at this time for three reasons:

1. I feel it important that Canadians stop lauding themselves as somehow above racist tendencies and address the systemic barriers in our own employment practices;
2. I feel it important to remind Canadians that the election of Donald Trump did not suddenly create racism; and
3. I feel it important to remind those who believe that they may now be permitted to engage in such ignorant behaviour that Ontario’s laws will not condone such actions. Period.

When the Most Qualified Candidate Does Not Win

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Sometimes the most-qualified candidate for a position is not successful in her application. Where that candidate is also a member of a historically disadvantaged group, suspicions will arise that the candidate’s membership in that group was at least a factor in the decision to award the position to someone else. This suspicion can arise – and be quite legitimate – even in cases where the incumbent is also a member of a different historically franchised group. For example, where a woman is applying for a job currently held by a person of colour.

In cases of private employment, applicants who believe that their membership in a historically disadvantaged group was a factor in the decision to award the position to someone else can make an application to the Human Rights Tribunal of Ontario alleging discrimination in employment.

The case of Hussain v. Ottawa Police Services Board, 2016 HRTO 1386 demonstrates the challenges sometimes inherent in advancing such an argument.

Employment Contract Deemed Void Ab Initio for Failing to Account for Hypothetical Severance

If an employment contract makes no mention of the payment of statutory severance in the event of a termination without cause, is the contract legally unenforceable regardless of whether the employee is actually entitled to severance at the time of dismissal? That is to say, must an employment agreement account for all future hypothetical scenarios in order to be legally binding?

In the case of Garreton v Complete Innovations Inc., 2016 ONSC 1178 the Honourable Mr. Justice Laurence A. Pattillo endorsed the words of Justice Low in Wunderman, “It is not that difficult to draft a clause that complies completely with the Act, no matter the circumstance” and held that, unless an employment contract would always be valid, no matter what the reality at the time of termination, it is void from the start.

Trial Judge Finds Mitigatory Earnings too Insignificant to be Deducted from Wrongful Dismissal Award

The application of the duty to mitigate to the post-termination earnings of wrongfully dismissed employees is probably the most reviled subject that an Ontario employment lawyer will have to discuss with his employee clients. (By contrast, it is a favourite subject of employers.) In short, the doctrine essentially provides that an employer is entitled to the set-off of any post-termination dollars earned by the dismissed employee during the reasonable notice period. As the case of Davidson v. Tahtsa Timber Ltd., 2010 BCCA 528 demonstrates, sometimes by virtue of an employee’s success in finding new employment, an employee can be completely shut out from being awarded anything notwithstanding being wrongfully dismissed.

But what happens when an employee takes a new job not so much to “mitigate her damages”, but rather to survive? More to the point, what if that new position is so much beneath the wrongfully dismissed employee’s previous position that to deduct such earnings would work a disservice to the employee?

In the case of Brake v PJ-M2R Restaurant Inc., 2016 ONSC 1795, the Honourable Justice Kevin B. Phillips of the Ontario Superior Court of Justice sitting at Ottawa held that a wrongfully dismissed employee’s ability to find employment did not take away from the loss she suffered from being dismissed without cause. Moreover, her new position, that of a cashier, was so substantially inferior to the managerial position she held with the defendant that, “the former does not diminish the loss of the latter.” As a result no deduction was applied on account of the mitigatory earnings.

Deletion of Browser History in Failed Attempt to Protect Privacy Not Spoliation of Evidence

Is deleting your browser history, so as to attempt to conceal the fact that you had visited "adult" websites, in the face of a court order to "preserve all records relevant to a lawsuit" “spoliation” of evidence?

That was one of the questions that the Honourable Mr. Justice Frank J. C. Newbould of the Ontario Superior Court of Justice was asked to resolve in the case of Catalyst Capital Group Inc. v Moyse, 2016 ONSC 5271.