Canada Labour Code Adjudicator Awards Costs in Unjust Dismissal Case This blog is co-written by our former articling student, Janet Son. In P.D. and The Bank of Nova Scotia, Re, 2020 CarswellNat 640, Adjudicator Kaufman considered the issue of whether the Canada Labour Code (the “Code”) authorized adjudicators to award costs in unjust dismissal cases. The complainant P.D. worked as a customer service representative at the Bank of Nova Scotia (the “employer”). She was dismissed due to allegations that she misappropriated $1,000.00 of the Bank’s funds and attempted to cover up the theft while serving customer Mr. X. Counsel for the employer argued that there were no grounds under the Code for a costs award in an unjust dismissal claim, citing Canadian Human Rights Commission and Mowat v. Canada (Attorney General), 2011 S.C.C. 53 (CanLII) (“Mowat”). Employer’s counsel argued since “costs” is a legal term of art, if Parliament intended to confer the authority to award costs then it would have been explicitly stated in the legislation. However, Adjudicator Kaufman found that Mowat was decided specifically in the context of the Canadian Human Rights Act and the absence of a specific authority to award costs should not be generalized to other administrative bodies. Adjudicator Kaufman reviewed the post-Mowat decision of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII) and found that the Justices of the Supreme Court confirmed that as part of the remedial scheme set out in section 242(4) of the Code, adjudicators have the authority to award costs. The applicable provision being: “Unjust dismissal (4) If the Board decides under subsection (3) that a person has been unjustly dismissed, the Board may, by order, require the employer who dismissed the person to (a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person; (b) reinstate the person in his employ; and (c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.” Adjudicator Kaufman concluded that the wording “do any like thing that is equitable…” conferred a broad discretion for adjudicators to award costs as is appropriate. As such she applied the factors set out in Rule 400 of the Federal Court Rules, to determine a costs award. The appropriate scale of costs was also canvassed, based on the following factors: adjudication is a fact-finding process, the onus is on the employer to establish just cause for dismissal on a balance of probabilities if just cause is not proven the employer is at risk of compensating the complainant for their legal costs, and the purpose of costs is not to punish the employer but to “make whole” the complainant that spent resources to test their unjust dismissal. Adjudicator Kaufman concluded that partial indemnity costs would be insufficient since P.D. had “done little to contribute to the costs she incurred, other than to have been misjudged by the employer.” As a result she awarded substantial indemnity costs in the amount of $90,466.40. Key Takeaway: Employees under the Code may have an increased chance of being awarded substantial indemnity costs in the adjudication of their matter as compared to commencing a wrongful dismissal claim at the Superior Court where costs awards are typically made at the partial indemnity rate. If you have more questions about your wrongful dismissal, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Labour LawMay 26, 2020September 30, 2020
The Canada Labour Code & Employer Releases THE REMEDY The Canada Labour Code applies to employees working in companies which are governed by federal law, as opposed to provincial law. This includes industries such as public broadcasting, railroads, trucking companies which cross provincial borders, banks, federal government employees and public harbours, to name the most evident. The legislation, among other things, gives every federally regulated employee the right of arbitration when they are dismissed for cause, and in some cases when they are dismissed absent of any allegations of cause. The arbitration process can lead to an award for lost income to the date of the hearing as well as reinstatement and, in certain situations, an award of aggravated damages for injured feelings where the termination was the result of seriously unfair conduct. THE RELEASE ISSUE Many of these arbitration decisions have held that it is illegal for the employer to require the employee to sign a release waiving their rights under the Canada Labour Code as a term of a settlement offered at the time of termination. Notably, this was the case in the 1998 Court of Appeal decision National Bank of Canada v. Canada (Minister of Labour). In that decision, the ONCA upheld the arbitrator’s decision that the employee was entitled to bring a complaint notwithstanding the fact that they had signed a release, stating: Section 168 protects the right of an employee to complain of an unjust dismissal even if that employee has signed a contract by which his or her employment is terminated. Indeed, it is not difficult to envisage a situation where an employee could, after having signed such a contract, realize that the termination of his or her employment is not the result of a legitimate business restructuration as he or she was led to believe, but is instead a coloured or disguised attempt at wrongfully dismissing her or him. This shows the wisdom of the Code in protecting an employee’s access to the remedies against unjust dismissal notwithstanding the signature of a termination contract between the parties. This issue was revisited recently by the Federal Court in Bank of Montreal v. Li. In this case, the employee was presented with and accepted a severance offer. She signed a release by which she gave up all rights to file an “unjust dismissal” complaint under the Canada Labour Code. After she signed the release document and was paid the settlement sum, she proceeded to do what the release document specifically prohibited and she succeeded in court on her right to pursue her remedy. THE RIGHT WAY It is possible for an employer to settle such a case before proceeding to arbitration, but it requires that the employee file the complaint and then proceed to a mediation settlement with the Department of Labour, which is indeed a cumbersome procedure. Employees’ Take Away As has been stated many times before, the words in a contract may not be determinative of your rights. This remedy, in particular, may be quite powerful and supersede any contract in which you expressly agree not to pursue this option. It is always advisable to seek the opinion of a skilled employment lawyer before signing any release or other termination documents. However, even if you have, you may still have the option to seek further remedies. GET ADVICE AND KNOW YOUR RIGHTS This is an important issue to understand both sides. For advice on this and similar issues and, indeed, any employment issue, contact Elyse Mallins of Devry Smith Frank LLP. We regularly advise employees and employers on legal workplace issues. By Fauzan SiddiquiBlog, Employment LawMarch 19, 2020September 30, 2020
Minimum Wage Embedded In New Law By: Nicolas Di Nardo With the new minimum wage increase set to become $15 an hour in 2019, it would require the Progressive Conservatives to change labour laws in order to get rid of it. The new wage increase will take effect six months after the June 2018 election. The Liberals have embedded it in the new Fair Workplaces, Better Jobs Act which is still to be studied by all-parties this summer, which is expected to pass in the fall. For more information on the details of this Act, please read our previous posts: Is A $15 Minimum Wage, More Unionization and a Minimum 3 Week Vacation On the Horizon? Update: Ontario Liberals Announce Changes to Labour Law—And a $15 Minimum Wage The Act looks to increase minimum wage to $14 an hour on January 1st, and to $15 an hour on January 1, 2019. It is expected that the Liberals will campaign on this Act as well as the proposed pharmacare plan which is also going to launch on January 1st. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawJune 26, 2017June 22, 2020