Wrongful Dismissal Roundup: The year in review

Leading counsel will review the past year’s most significant wrongful dismissal decisions and explain how they will affect you in the coming year. The panel will also flag significant ongoing litigation. Final selection of topics will take place a few weeks before the audio conference to ensure up-to-date coverage of the most consequential developments. Specific cases to be discussed include the following:

Reasonable notice periods:

• Dawe v. The Equitable Life Insurance Company of Canada (Ontario Court of Appeal): Are courts increasingly willing to award notice periods in excess of 24 months, or are such notice periods still generally reserved for exceptional cases?

Termination clauses:

• Andros v. Colliers Macaulay Nicolls Inc. (Ontario Court of Appeal); Movati Athletic (Group) Inc. v. Bergeron (Ontario Divisional Court): What steps do courts follow in determining whether a contractual provision sufficiently rebuts the presumption that an employee is entitled to common law reasonable notice? Will a contract that provides for employment standards minimums be sufficient to rebut the presumption of entitlement to common law reasonable notice?
• Heller v. Uber Technologies Inc. (Ontario Court of Appeal); Ariss v. NORR Limited Architects & Engineers (Ontario Court of Appeal): Will courts uphold an agreement that contracts out of the minimum employment standards entitlements if both parties voluntarily agree to its terms? Will a change in an employee’s position or duties invalidate an agreement restricting the length of notice?

Calculating length of service:

• Valle Torres v. Vancouver Native Health Society (British Columbia Supreme Court): How are gaps in service treated when assessing the appropriate period of reasonable notice, which is based in part on length of service?
• Kerzner v. American Iron & Metal Company Inc. (Ontario Court of Appeal): Is a successor employer required to count an employee’s service prior to the purchase of the business when calculating employment standards entitlements upon termination? Will an attempt to waive this obligation amount to an illegal contracting out of employment standards legislation?

Constructive dismissal:

• Halifax Herald Limited v. Clarke (Nova Scotia Court of Appeal): Should courts exclude evidence created after an employee’s departure, such as actual sales figures, or is such evidence relevant to assessing the reasonableness of the former employee’s subjective beliefs that income would be reduced in the new position?

Punitive damages:

• Nassr c. Rogers Communications Inc. (Quebec Superior Court); Hampton Securities Limited v. Dean (Ontario Court of Appeal): What are some examples of conduct that is deserving of punitive damages?
• Ruston v. Keddco MFG. (2011) Ltd. (Ontario Court of Appeal): Will the fact that the trial judge referred to the same misconduct as forming the basis for both aggravated and punitive damages automatically give rise to objectionable double recovery?

Aggravated damages:

• Cottrill v. Utopia Day Spas and Salons Ltd. (British Columbia Court of Appeal); Colistro v. Tbaytel (Ontario Court of Appeal): Are plaintiffs required to lead evidence demonstrating that they suffered actual harm as a result of the manner of dismissal in order to recover aggravated damages? Can an employer’s conduct, in itself and without any assessment of the harm on the employee, be sufficient to award damages for bad faith and/or aggravated damages?