In this session, seasoned counsel will review the most important recent wrongful dismissal decisions and explain their implications for workplace parties. They will also flag significant litigation on the horizon. Final selection of topics will take place a few weeks before the audio conference, ensuring coverage of late-breaking decisions. Specific cases to be discussed include:

Mitigation of damages

• Brake v. PJ-M2R Restaurant Inc. (Ontario Court of Appeal): Will income earned during the statutory entitlement period be considered mitigation income, making it deductible from damages? Does income earned while working a “second job” have to be deducted from damages?

Bonus payments following termination

• Bois v. MD Physician Services Inc. (Ontario Court of Appeal) and Kielb v. National Money Mart Company (Ontario Court of Appeal): When will an employee be entitled to a bonus that is scheduled to be paid out after his or her dismissal?

Termination clauses

• Wood v. Fred Deeley Imports Ltd. (Ontario Court of Appeal) and North v. Metaswitch Networks Corporation (Ontario Court of Appeal): When will a termination provision in an employment agreement be found unenforceable for failing to comply with the minimum requirements of employment standards legislation? Can a severability clause in an employment agreement be used to strike out part of a termination provision that violates the Employment Standards Act, rendering the rest of the clause enforceable?

Aggravated/moral damages

• Lau v. Royal Bank of Canada (British Columbia Court of Appeal), Colistro v. Tbaytel (Ontario Superior Court) and Galea v. Wal-Mart Canada Corp. (Ontario Superior Court): Is medical evidence required to establish a claim for moral or aggravated damages? What must an employee demonstrate in order to establish entitlement to damages for mental distress? What type of evidence is required to establish an evidentiary basis for such an award?

Wrongful dismissal prior to the start of employment

• Buchanan v. Introjunction Ltd. (British Columbia Supreme Court): Can the obligation to provide reasonable notice or pay in lieu thereof arise before an employee’s first day of employment? Can an employer rely on a probationary clause to terminate an employee without conducting a good faith assessment of the employee’s suitability for the position?

Tort of harassment

• Merrifield v. The Attorney General (Ontario Superior Court): Can a civil action be based on the common law tort of harassment? What is the test to establish harassment in this context? How does it differ from the tort of intentional infliction of mental suffering?