Resources: Litigation

  • Back To School — Does Retraining Count As Reasonable Mitigation Of Damages?

    August 2018

    In Benjamin v. Cascades Canada ULC, 2017 ONSC 2583, the plaintiff had worked as an unskilled labourer with the defendant company for 28 years.  The company had eliminated all of its production functions at one of its plant locations, resulting in the dismissal of 41 employees, including the plaintiff.

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  • “Investigation is the New Arbitration”: Thoughts on Our Changing Workplaces

    July 2018

    by Gavin Marshall

    Every seasoned human resources professional is aware that “investigation is the new arbitration”. When addressing issues of all but the most serious and blatant misconduct, employers are now routinely counselled that if they shoot first and ask questions later, they do so at their peril.

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  • Big News About Small Claims

    March 2017

    by James D. Kondopulos

    Civil Resolution Tribunal.  As of June 1, 2017, with just a few exceptions, civil claims of up to $5,000 will no longer be heard and decided by the B.C. Provincial Court (Small Claims Court).  Instead, they will be resolved through British Columbia’s new online tribunal, the Civil Resolution Tribunal.  This will be mandatory.

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  • Breach of Duty of Good Faith results in Award of Punitive Damages and Sends Message to Employers

    December 2016

    by Gabrielle Scorer

    A recent decision of the Ontario Superior Court saw the court award $50,000 in punitive damages to a plaintiff in a wrongful dismissal action. The court concluded that the defendant employer breached its duty of good faith to its former employee by asserting cause for dismissal when there was no reasonable basis for such an assertion and by engaging in behaviour calculated to financially impact the plaintiff.

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  • Is that “Confidential” Investigation Report actually Confidential?

    May 2016

    by Graeme McFarlane

    If not set up properly, that “confidential” investigation report may not be so confidential after all. An Ontario arbitrator has ruled that an investigation report prepared by a lawyer is not covered by solicitor-client or litigation privilege as a matter of right. In Durham Regional Police Association v Durham Regional Police Services Boardthe arbitrator ordered production of an investigation report to the union which was dissatisfied with the employer’s handling of a harassment situation.

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  • Back to Mitigation Basics: A Must-Read for Anyone Prosecuting or Defending a Wrongful Dismissal Action

    May 2016

    by James D. Kondopulos

    In the recent case of Steinebach v. Clean Energy Compression Corp., 2016 BCCA 112, the B.C. Court of Appeal provided an excellent overview of first principles when it comes to an employee’s duty to take reasonable steps in mitigation of damage or loss flowing out of termination of employment.

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  • Aggravated Damages in Wrongful Dismissal Claims

    March 2016

    by Michael R. Kilgallin

    Two recent B.C. court cases illustrate the type of evidence employees will need to produce to establish a claim for aggravated damages related to the termination of their employment.

    In Honda Canada Inc. v. Keays, the Supreme Court of Canada affirmed the ability of employees to seek aggravated damages in addition to pay in lieu of termination notice (common law or contractual).


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  • Major Clarification in Law around Dismissal of Non-Union, Federally Regulated Employees: Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17

    March 2015

    The Federal Court of Appeal recently clarified that without cause dismissals of employees covered by the Canada Labour Code (the “Canada Code”), such as those working in banking, broadcasting, telecommunications and the railways, are not automatically “unjust” simply by virtue of the fact that no cause is asserted.

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  • Expensive Secret Telling: When Damages May Be Available for Breach of a Confidentiality Clause in a Settlement Agreement

    November 2014

    by Sandra Guarascio

    Employers often enter into settlements in order to avoid litigation. Sometimes, the confidentiality of the settlement is crucially important to the employer. While simple confidentiality clauses are often included in settlement terms and coupled with enforcement mechanisms (what happens if a breach occurs), it is uncommon to see cases that address..

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