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Difference between revisions of "Employment Law Issues (9:V)"
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Prior to the ''Honda v Keays'' decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to which the employee would otherwise be entitled. This practice was based on the Supreme Court of Canada’s decision in ''Wallace v United Grain Growers Ltd'', [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”. Following the ''Honda v Keays'' decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, one must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress. | Prior to the ''Honda v Keays'' decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to which the employee would otherwise be entitled. This practice was based on the Supreme Court of Canada’s decision in ''Wallace v United Grain Growers Ltd'', [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”. Following the ''Honda v Keays'' decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, one must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress. | ||
What constitutes “bad faith” is for the courts to decide, and has in the past centred on deception and dishonesty. Mere “peremptory” treatment is not sufficient: see, for example, ''Bureau v KPMG Quality Registrar Inc'', [1999] NSJ No. 261 (NSCA). Sexual harassment has been held not to give rise to additional damages (''Chiang v Kejo Holdings Ltd'', 2005 BCSC 414). See, however, ''Sulz v Minister of Public Safety and Solicitor General'', 2006 BCCA 582 where punitive damages were awarded for sexually harassing conduct in the employment context. “Bad faith” has been found in cases the following cases: i) where the employer lied to the employee about the reason for dismissal (see Duprey v Seanix Technology (Canada) Inc, 2002 BCSC 1335, where an employer told a commissioned employee he was being released due to financial hardship, when it was found he was being released so the employer would not have to pay owed commission); ii) where an employer has deceived the employee about representations of job security (Gillies v Goldman Sachs Canada, 2001 BCCA 683); iii) where a senior employee was induced to leave his position under the promise of job leading to retirement; and iv) where an employer promised an employee he would keep his job after a merger, although he knew differently (Bryde v Liberty Mutual, 2002 BCSC 606). In one case, a response by employer’s counsel to an employee’s counsel containing an allegation of just cause where none existed was held not to constitute bad faith (Nahnychuk v Elite Retail Solutions Inc, 2004 BCSC 746). However, in another province, a letter threatening to allege just cause where none existed, for the purpose of forcing a settlement, even though just cause was not plead in court, was held to give rise to additionaldamages (Squires v Corner Brook Pulp and Paper Ltd,[1999] NJ No 146 (Nfld CA)). | |||
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