Avelin v. Aya Lasers Inc.

Given the apparent financial fragility of the appellant, it would not be fair to the respondent to prevent her from taking whatever steps are open to her to execute on the judgment.

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Corey v. Kruger Products L.P., 2018 BCSC 1510

Blair represented our client, Mr. Corey, in BC Supreme Court and obtained an award of 8 months of pay in lieu of notice. The Court rejected the employer’s position that 3 months was sufficient in light of our client’s short service.

Our client was 57 years old at the time of his dismissal and had worked for the employer for 2.5 years in a supervisory (first tier of management) role. The employer’s argument that any notice award our client received from the Court should be reduced for the possibility that he would find a job after the trial (a “contingency” reduction) was also rejected by the Court. The Court considered the employer’s argument – based on government statistics of unemployment rates – that our client was no worse off in the job market at age 57 than a younger person would be; however, Blair’s “cogent” arguments against the application of such statistics convinced the Court otherwise.

In the result, Blair obtained for our client an 8-month award comprised of: salary, expected overtime pay, employer pension contributions, medical expenses, interest, and costs.

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Nowak v Biocomposites Inc., 2018 BCSC 785

Blair represented an employee who brought a wrongful dismissal lawsuit in British Columbia against his former employer.

The employer applied for an order that the British Columbia Court decline jurisdiction in favour of the courts of North Carolina. The employer argued that the employee had been provided with an employment contract after he started working that said that his employment was governed by the employer-friendly laws of North Carolina and subject to the jurisdiction of the courts of North Carolina.

Blair defeated the employer’s application and kept the case in British Columbia, and the decision clarified a number of important points of law.

The Court found that the employer did not have consideration for a new employment contract presented after the employee had already started work simply because the employer had included some fringe benefits in the new contract.

The Court applied the Douez v. Facebook decision of the Supreme Court of Canada to an employment context for the first time ever in British Columbia, and in doing so confirmed that assessing a forum selection clause in a contract (a clause that stipulates where disputes must be brought/heard) requires consideration of all the circumstances including convenience, fairness, interests of justice, public policy, and the unequal bargaining power employees have when negotiating contracts with employers.

Finally, the Court confirmed that a termination provision in an employment contract is void if it would have become contrary to the statutory minimums at a future date even if the provision complied with those minimums at the time of termination. This is important law in British Columbia, which the Court in this case set out in a clear and decisive way.

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E.P. v. SAP Canada

Blair Curtis worked on this case to obtain a judgment for 12 months’ notice for his client, who was a 45 year old manager with just under 10 years of service.

Madam Justice Beames ruled that the employee was entitled to compensation for the following items on top of his base salary for his notice period: a pro-rata portion of an annual bonus; employer contributions through a stock option plan; and pension contributions.

The judge rejected the former employer’s argument that the employee had failed to mitigate his losses.

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IAMAW District Lodge 140 v. Air Canada 06-23

TGC lawyer Kemily Ho succeeded on a judicial review of an arbitrator’s decision that a long-term Air Canada employee should be terminated for cause for taking discarded nuts from a first class cabin.

In setting aside the arbitrator’s decision, the Judge expressed “grave doubts” about the arbitrator’s assessment of the employee’s conduct and found that the decision “failed to address” basic questions such as whether the employee’s conduct was so serious as to justify termination after years of service.

TGC lawyers have experience dealing with termination for cause. If you are an employer or an employee dealing with such a situation then you can contact us here.

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S.D. vs Canada Shineray (Costs Decision)

Martin Sheard and Steven Barker were successful on a recent application for the costs of a trial for wrongful dismissal.

Martin and Steven successfully represented the plaintiff at trial and were now applying to Court for an order that the defendant, and its trial counsel, pay the plaintiff the costs of trial.

In the result, the Court ordered that the defendant had to pay costs on an elevated scale. This means that the costs that the defendant had to pay to the plaintiff were calculated on a scale that was higher than the scale normally used to calculate costs.

The Court found that: “the manner in which the defendant conducted this litigation turned a matter of ordinary difficulty into one of more than ordinary difficulty”.

The Court also ordered that the defendant’s trial counsel, who came from a different firm, should be personally liable for part of the defendant’s costs as he “caused costs to be incurred without reasonable cause through delay and neglect”. It is rare for the Court to award costs against counsel in this fashion.

If you believe that you have been wrongfully dismissed you should contact the experienced lawyers at TGC.

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S.D. v Canada Shineray

This case involved a rare award of wrongful dismissal, aggravated damages, and just cause allegations.

Steve Barker and Martin Sheard were successful counsel on the case.

The defence of just cause failed.

Aggravated damages are not commonly awarded in employment law cases. That being so, they were appropriate here and our client was most deserving.

The case also involved an argument for the invalidation of a termination clause due to its apparently pre-emptive circumvention of the Employment Standards Act and the Human Rights Code. This argument was not successful because in the court’s view the clause in question was intended to have narrow application, regardless of its broad wording.

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