Case Law Round Up 2024

Stay informed on recent BC, Alberta and Ontario court decisions. Get access to past and future cases you need to know about.   

2024 -06.  Ontario. Octapharma ordered to pay $105k for not accommodating care of worker’s ill mother.

L.C., a sales representative for Octapharma Canada Inc., was awarded over $100,000 by the Human Rights Tribunal of Ontario after being terminated for needing accommodations to care for her cancer-stricken mother during the COVID-19 pandemic.

The tribunal found that Octapharma failed to accommodate her family status and retaliated against her by terminating her employment. The tribunal ordered Octapharma to compensate L.C. for lost wages, benefits, and injury to dignity, totaling $104,806.88.

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2024 -05.  FEDS. Air Canada wins right to test flight attendant's hair for pot use.

A federal labour arbitrator has given Air Canada the green light to test a strand of a flight attendant's hair for drugs after two of the man's housemates — and fellow employees — claimed he was smoking a bong and making jokes about hijacking.

According to a decision, the flight attendant — known as CB — was expelled from a home housing 14 Air Canada employees, following a group meeting prompted by his behaviour.

Two of CB's fellow cabin crew members wrote reports which made their way to a Vancouver-based service director manager for Air Canada — sparking a request for a strand of CB's hair along with a battle between the airline and the Canadian Union of Public Employees.

The decision provides a window into the lives and responsibilities of the cabin crew members tasked with looking after the safety of passengers on the country's largest airline.

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2024 -05.  Ontario. Student Violence Forms Basis for a Teacher’s Lawful Work Refusal.

In Ontario English Catholic Teachers’ Association v Dufferin-Peel Catholic District School Board, three teachers engaged in a work refusal after a student with multiple disabilities assaulted an educational resource worker with whom he worked. The student had a history of violent behaviour.

Section 43 of the Occupational Health and Safety Act (OHSA) provides that a worker may refuse work where the worker has reason to believe that (amongst other things) the worker is likely to be endangered by workplace violence. For teachers, this right to refuse work does not apply if “the circumstances are such that the life, health or safety of a pupil is in imminent jeopardy” (Regulation 857).

The Ministry of Labour inspector (Inspector) found that the refusals were unfounded because they did not meet the requirements of Section 43. When the Inspector attended the workplace, the Inspector believed the refusing teachers were not able to clearly articulate the reason they were in danger. Their comments were directed more to concerns with the proposed safety plan. Further, the refusal occurred after the incident and on a subsequent day when the student was not yet at school and, as such, the teachers could not have anticipated that there would necessarily be any workplace violence on that day.

On appeal, the OLRB overturned this finding with respect to two of the teachers, whom the OLRB was satisfied were both genuinely afraid for their safety.

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2024 -05.  BC. Worker terminated after 2.5 years receives 12 month’s notice.

A British Columbia employer must pay a worker with two-and-a-half years of service 12 months’ pay in lieu of notice because it induced the worker to leave a secure position with few comparable jobs, a BC court has ruled.

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2024 -05.  FEDS. Arbitrator: Canada Post found unreasonable in suspending unvaccinated remote workers.

A labour arbitrator has struck down part of Canada Post’s mandatory COVID-19 vaccine policy for employees, ruling it was unreasonable to suspend staff without pay who worked remotely simply because they did not confirm they were vaccinated.

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2024 -05.  Ontario. $50k award for manner of termination, upheld despite mental distress evidence only provided by family members. 

A recent Court of Appeal decision provides an illustration of when an employee may successfully claim they were unable to mitigate due to physical incapacity. It also provides a reminder of the factors a court will examine to determine if an employee is entitled to aggravated damages for the manner of dismissal.

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2024 -05.  Ontario. Supreme court rules 'No just cause dismissal despite serious breach of conduct by bank employee.'

This decision affirms that dismissing an employee for just cause is a very high bar to meet. When assessing if there is after-acquired cause for dismissal, the courts will consider the misconduct in question and all relevant factors are considered. If it is determined that the misconduct is not sufficiently serious to give rise to a breakdown in the employment relationship, then after-acquired cause cannot be established.

Even when there is a breach of an employer’s Code of Conduct, it is not always a straightforward conclusion to establish just cause. This case demonstrates that issues of dismissal with just cause are complex, and courts will consider the surrounding circumstances, and decide whether dismissal is a proportional response

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2024 -05.  BC. Supreme Court upholds Covid-19 vaccine mandate for healthcare workers  - continues to be in effect today.

The B.C. Supreme Court upheld the province's COVID-19 vaccine mandate for health-care workers, deeming it justified due to the significant public health risk when the mandate was renewed in October 2023. Justice Simon Coval ruled against most of the workers' claims, including those related to Charter rights, but ordered a reconsideration for remote and administrative workers.

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2024 -05.  Ontario. Court of Appeal upholds $50k aggravated damages award for manner of dismissal leading to mental stress.

In Krmpotic v. Thunder Bay Electronics Limited Ontario Court of Appeal upheld a decision awarding $50,000 in aggravated damages to a 59-year-old employee who was terminated shortly after returning from back surgery, deeming the dismissal manner as lacking good faith. The Court confirmed the employee could not mitigate his damages due to physical incapacity, accepting evidence from the employee and his family over the need for expert medical testimony. Additionally, the Court ruled that aggravated damages for mental distress do not require a diagnosable medical condition but can be based on broader harm caused by the employer's conduct.

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2024 -04.  Ontario. Unenforceable termination clause does not void fixed-term contract

In Kopyl v. Losani Homes, the Court of Appeal for Ontario affirmed that an invalid without-cause termination clause doesn't affect a fixed-term clause in an employment contract. The court ruled that upon termination before the fixed term's end, the employee is entitled to compensation for the remaining term without a duty to mitigate. The decision emphasizes that despite an invalid termination clause, the fixed-term clause remains valid and requires the employer to pay the employee for the duration of the term.

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2024 -04.  Ontario. Court overturns reinstatement of bus drivers fired for vulgar texts about co-workers

The Ontario Superior Court of Justice overturned an arbitrator’s decision that reinstated five GO Transit bus drivers terminated by Metrolinx for workplace harassment via WhatsApp chats.

Despite not dismissing the grievances, the court directed them to be re-evaluated by a different arbitrator. The court deemed the arbitrator’s ruling unreasonable, emphasizing that workplace harassment policies extend to all employee interactions impacting the workplace environment.

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2024 -03.  Alberta. Calgary Police Services suing HR Director over multiple public disparaging comments & seeks injunction

The Calgary Police Chief filed a lawsuit against the former director of human resources for allegedly threatening confidential information about the police service on social media. The former director, Angela Whitney, raised allegations of bullying and harassment within the police service on social media and in an interview, describing a culture contrary to best HR practices.

The lawsuit claims Whitney's comments caused irreparable harm to the Calgary Police Service (CPS) and seeks to prevent further posts or interviews related to the matter, citing confidentiality agreements.

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2024 -03.  Ontario. Directors fined $720,000 for failure to pay wages and produce records. Also imposed a 25% victim fine surcharge

Three corporations and three individuals acting as directors were convicted of multiple offences under the Employment Standards Act for failing to pay wages and provide records.

The convictions resulted in fines totaling $720,000, with the corporations fined $545,000 and the directors fined $175,000. The offences occurred between July 2021 and December 2022, and despite orders to pay issued by an employment standards officer, the defendants failed to comply.

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2024 -03.  Ontario. Dufault vs Township of Ignace, another landmark case regarding termination provisions

A recent Ontario court ruling has brought employment contracts under further scrutiny, emphasizing the importance for employers to review and revise their agreements. The case of Karen Dufault, a terminated employee of the Township of Ignace, highlighted the pitfalls of fixed-term agreements and termination provisions deemed unenforceable by the court.

Notably, the court rejected the notion of employers having absolute discretion in termination, signaling a shift in how termination clauses are interpreted. It is now established by the Court of Appeal that there are three categories of cause or dismissal rights in Ontario… but ‘cause’ does not mean that the employee gets nothing. Ontario has a different standard to get to nothing.

OPINION

It is now established by the Court of Appeal that there are three categories of cause or dismissal rights in Ontario … but ‘cause’ does not mean that the employee gets nothing. Ontario has a different standard to get to nothing.”

If someone is dismissed for cause in Ontario, they are only entitled to statutory severance, not common law.

This level of pedantry makes most people's heads hurt. It's far beyond common knowledge — employees don't understand it and employers don't understand it. Until recently, it appears the courts also don’t fully understood it. It is hyper complicated and I don't think anyone's enjoying it.

It requires an examination of too many concepts to answer the question posed by both sides: ‘How much do I owe this person?’ which is really the bottom line that anyone cares about. And answering that question has become significantly harder in Ontario.

There are 2 ways of dealing with the post-Waksdale obligations of the employer:

1. to ensure that the only way that you express a dismissal for cause matches exactly the words of the ESA.

2. Or if you're offering more than ESA entitlements, you can say that a dismissal for cause will result in no payments other than your ESA minimum

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2024 -03.  BC. Tribunal rules in favour of company in termination during medical leave case 

In Complainant v. Company and others, an un-named employee filed a human rights complaint against her former un-named employer after being terminated while on medical leave.

The complainant, a female carpenter, alleged discrimination based on sex and disability. However, the tribunal dismissed the complaint, finding no evidence to support discrimination claims. The company argued that it was unable to accommodate the employee during her leave, and the termination was unrelated to her injury.

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2024 -03.  Federal. Transgender employee awarded $18,000 after being deadnamed and misgendered at work

In the case of Bilac v. Abbey, Currie and NC Tractor Services Inc., the Canadian Human Rights Tribunal found that misgendering and deadnaming an employee who requested respect for their gender identity violated the Canadian Human Rights Act.

The tribunal affirmed that employers must uphold the dignity of their employees and respect their gender identity or expression.

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2024 -03.  Ontario. Court decision highlights employee duty to mitigate damages in wrongful dismissal cases 

In the recent case of Gannon v. Kinsdale Carriers, the Ontario Superior Court of Justice ruled that a terminated employee failed to mitigate damages by refusing an offer of comparable employment.

Despite the employee's 22-year tenure with the company and her age at the time of termination, the court found she could have mitigated her losses by accepting the offered position.

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2024 -03. BC. Court orders employer to pay fired worker 18 months notice & $25,000 in punitive damages

In Klyn v Pentax Canada Inc., 2024 BCSC 372 (CanLII) A British Columbia court has ruled in favor of a fired worker, ordering their employer, Pentax Canada, to compensate them with 18 months' pay in lieu of notice and $25,000 in punitive damages.

The worker had signed an employment agreement specifying compensation as 100% commission plus benefits, subject to termination clauses. Despite this, Pentax altered the worker's compensation structure, leading to a breach of contract and subsequent legal action.

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2024 -02. Alberta. Employer ordered to release “privileged” records after investigation into harassment leads to dismissal

The Alberta court ordered Industrial Alliance to share documents related to a wrongful dismissal case where an employee was fired over harassment allegations.

Despite Industrial Alliance's claims of privilege, the court ruled that the investigation records were not solely for litigation and must be disclosed. 

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2024 -02. BC. Flight attendant cites PIP as a traumatic stressor in Appeal Tribunal

The British Columbia Workers’ Compensation Appeals Tribunal rejected a flight attendant’s claim for workers’ compensation related to workplace bullying and harassment.

Despite several incidents, the tribunal ruled they didn’t meet criteria for compensation, citing a lack of evidence linking the attendant’s mental disorder to the workplace events described.

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2024 -02. Ontario.  Businessman faces ongoing wage theft allegations, still owes $290,000 years after convictions

Despite a prior conviction for wage theft, Toronto businessman continues to face new claims of unpaid wages totaling $290,000, prompting calls for harsher penalties for employers.

Former employees and worker advocacy groups highlight the failure of Ontario's enforcement system to adequately protect workers and demand stronger deterrents against repeat offenders.

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2024 -02. Ontario. Paying newcomer below minimum  wage amounts to citizenship-based discrimination

In L.N. v. Ray Daniel Salon & Spa, a landmark decision resulting in the second-largest damages award in the tribunal's history, the Ontario Human Rights Tribunal found that paying a non-citizen worker below the minimum wage constitutes a form of citizenship-based discrimination.

The ruling, which stemmed from a case involving Ray Daniel Salon & Spa, underscores the vulnerability of racialized newcomers who often face exploitation while trying to establish themselves in Canada.

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2024 -02.  BC.  College instructor loses human rights complaint over controversial YouTube videos

The British Columbia Human Rights Tribunal has rejected a complaint from a former college instructor who was terminated for posting YouTube videos advocating extreme views on topics like abortion, transgender rights, and religion.

Gleb Glebov, a math instructor at Fraser International College, claimed his Christian beliefs justified his actions, but the tribunal found he failed to demonstrate that disseminating such views was a necessary part of his religious practice.

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2024 -02.  Federal.  14 Jewish PSAC members filed human rights complaints against their union

Fourteen Jewish members of the Public Service Alliance of Canada (PSAC) have filed complaints with the Canadian Human Rights Commission, accusing the union of fostering a culture of discrimination and harassment following the Oct. 7 Israel terror attacks.

The complaints allege that PSAC used the attacks to promote biased views against Israel, creating a hostile environment for Jewish workers. The complainants assert that PSAC's actions violate the Canadian Human Rights Act, and they are seeking orders for the union to abandon its alleged anti-Israel platform, among other forms of relief.

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2024 -02.  BC. University awarded over $650,000 from deceased estate for wage fraud and theft

A recent B.C. Supreme Court decision ordered the estate of Wanda Barbara Moscipan, who passed away over a decade ago, to pay the University of British Columbia (UBC) more than $650,000 for wage fraud and theft.

Moscipan, who worked as an administrator for UBC and the Vancouver Coastal Health Authority, engaged in fraudulent activities including stealing money from a dormant bank account and receiving unauthorized pay raises.

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2024 -02.  Ontario.  Former nuclear plant employee arrested for leaking private information

A former nuclear operator at Ontario Power Generation (OPG) faces charges under the Security of Information Act for allegedly disclosing sensitive information that could endanger national security.

The RCMP's Integrated National Security Enforcement Team (INSET) arrested the suspect, who is accused of communicating safeguarded data to a foreign entity or terrorist group.

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2024 -02.  Ontario.  Court orders employer to pay retired VP $1.8 Million in deferred bonuses, stock options, & unused vacation

In Boyer v Callidus, 2024 ONSC 20, court rules in favor of retired VP, finding that the employer failed to communicate limiting language in bonus and stock option plans.

The unused vacation policy was deemed unclear and uncommunicated. Employer ordered to pay damages totaling $1,831,933.88 plus interest.

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2024 -02.  Ontario.  Labour Relations Board rules no termination pay for employee jailed during employment term

A farm manager was denied termination pay after incarceration frustrated employment contract.

The Ontario labour relations board ruled that employment was impossible to perform, exempting employer from termination pay obligation in Ontario Labour Relations Board - Adam West v J. Dowswell Farms Ltd., 2024 CanLII 3332 (ON LRB).

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2024 -02.  Alberta.  Arbitration finds that breach of trust an important factor in upholding termination for time theft

Arbitrator upholds dismissal of worker for time theft in Fujitec Canada Inc. v The International Union of Elevator Constructors, Local 130 Calgary, Alberta, 2024 CanLII 4119 (AB GAA).

Worker repeatedly took extended breaks not reflected in timesheets, leading to termination. Lack of remorse and breach of trust contributed to just cause for dismissal.

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2024 -02.  Ontario.  Court of Appeal rules Bill 124 unconstitutional for unionized public sector workers

Federal Court approves $817 million settlement in disability class action - Manuge v. Canada, 2024 CanLII 4119. Settlement addresses alleged miscalculation and underpayment of disability pension benefits for Canadian Armed Forces and RCMP members, among others.

Settlement amount includes significant sum for class counsel fees and disbursements. Court finds settlement fair and reasonable, in best interests of class members.

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2024 -01.  BC . tribunal dismisses caucasian workers' discrimination complaint over hiring practices

The British Columbia Human Rights Tribunal recently ruled against two Caucasian workers who alleged discrimination by their employer, Finale Entertainment.

The workers claimed they faced reduced hours and were not recalled after layoffs in favor of Chinese-speaking employees.

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2024 -01.  Federal.  Court approves $817 million settlement in disability class action for CAF and RCMP Members

Ontario Court of Appeal rules Bill 124 unconstitutional, citing violation of collective bargaining rights for unionized public sector workers.

The decision, released in Ontario English Catholic Teachers Association v. Ontario (Attorney General), confirms that Bill 124 breaches section 2(d) of the Canadian Charter of Rights and Freedoms.

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2024 -01.  BC.  Supreme court upholds BC labour relations board decision on Section 54 and mandatory vaccination policy

BC Supreme Court upholds BC Labour Relations Board decision on mandatory vaccination policy - Canadian Union of Public Employees, Local 7000 v. British Columbia (Labour Relations Board), 2024 BCSC 55.

Decision confirms section 54 of Labour Relations Code doesn't apply to vaccination policies, employers can introduce such policies without 60 days' notice or engagement with unions. 

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2024 -01.  Ontario.  Worker's layoff deemed a COVID emergency leave, but also constructive dismissal without an employment contract with an express term permitting lay-offs

The case concerned the plaintiff who sought summary judgment after being laid off by his employer. The employer later became an essential service, but the plaintiff was not recalled and believed he was constructively dismissed.

The Ontario Superior Court of Justice found that there was nothing in the evidence that hinted at an ulterior motive for the layoff in the case Webb v. SDT North America, 2023 ONSC 7170.

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2024 -01.  Ontario.  Employer's false allegation of murder ordered to pay $500k, 24 months' notice

In a recent case against Controlex Corp., a real estate development company in Ontario, the Ontario Superior Court awarded Martin Koshman 24 months notice and additional damages totaling $471,461.68.

The court found that false allegations of potential involvement in a murder, made by the company president's wife, Susan Dent, during Koshman's termination, warranted aggravated and punitive damages. 

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