Employment Law Case Analysis
Employment mediation is shaped by the legal risks that each party brings to the table.
Questions of just cause, constructive dismissal, compensation, restrictive covenants,
exceptional damages and statutory remedies can materially alter settlement value.
The materials below review selected employment-law decisions and developments that may
affect liability, damages and the practical assessment of settlement risk.
Dismissal, Cause & Workplace Conduct
Just Cause in False Expenses of $250 – President of Operations
A British Columbia Court of Appeal decision upholding just cause where a senior executive
submitted false expense claims and then repeated the false account when confronted.
The modest dollar amount was outweighed by the employee’s seniority, responsibility
and breach of trust.
Tape Recording at Work – Alberta King’s Bench & BCSC
A review of decisions considering surreptitious workplace recordings and whether
such conduct may constitute just cause. The cases illustrate the importance of context,
purpose and the resulting impact on the employment relationship.
Kickback Scheme – Mareva Injunction and Punitive Damages
An Ontario decision involving an employer counterclaim against a former employee who
received substantial kickbacks. The employer recovered the illicit funds, punitive damages
and costs, and had previously obtained a Mareva injunction restricting the employee’s assets.
Non-Solicitation Clause Upheld
A review of the enforceability of a post-employment non-solicitation covenant and the
distinction between a reasonable restriction on solicitation and a broader restraint
on competition.
Compensation, Benefits & Wrongful Dismissal
CERB Benefits – BCCA & Alb CA
A review of appellate decisions from British Columbia and Alberta addressing whether
CERB payments should be deducted from wrongful dismissal damages. Both courts concluded
that the CERB payments should not reduce the employee’s notice-period award.
Equity Derivative Plans & Wrongful Dismissal – Alberta
An examination of the Alberta approach to equity-based compensation during the notice
period, including the application of the Supreme Court of Canada’s analysis in
Matthews and subsequent Alberta appellate decisions.
Ontario – RSU – A Review of Wigdor v Facebook – Not Applicable to Alberta
A review of the treatment of restricted share units following termination and the
distinction between employment compensation and separate equity rights, together with
the significance of that distinction under Ontario employment standards legislation.
Employment Law Claims in Bankruptcy
A review of the impact of bankruptcy and insolvency on employment-law claims,
including the practical difficulties that arise when an employee has a valid
wrongful dismissal claim against an insolvent employer.
Exceptional Damages, Costs & Remedies
Summary of Exceptional Damage Awards post Honda
A review of aggravated, moral and punitive damage awards following
Honda v Keays, focusing on the kinds of employer conduct that may
significantly increase exposure beyond ordinary wrongful dismissal damages.
Federal Court of Appeal Raises Bar on Reviews and OK’s Full Costs
A review of a Federal Court of Appeal decision restoring an unjust-dismissal adjudicator’s
substantial costs award and considering the standard of review applicable to such decisions
under the Canada Labour Code.
COVID-19, Vaccination & Workplace Policies
COVID-19 & Impact on Notice Period
A review of whether the economic consequences of the pandemic affected the
assessment of reasonable notice and the availability of comparable employment
following termination.
Refusal to Wear Mask
An Alberta decision rejecting a constructive dismissal claim after an employee
who refused to comply with a workplace masking requirement was placed on unpaid leave.
Mandatory Vaccine Policy
A British Columbia decision considering the reasonableness of a mandatory vaccination
policy and the placement of a non-compliant employee on unpaid leave. The court rejected
the constructive dismissal claim.
Doctrine of Frustration due to Vaccine Refusal
A review of Croke v VuPoint Systems, where the court accepted frustration
as a defence after a third-party vaccination requirement prevented the employee
from performing the essential duties of the job.
Vaccine Exemption Based on Creed
An arbitral decision recognizing a religious-creed exemption from a mandatory
vaccination policy where the employee’s objection was found to be sincerely
connected to her religious beliefs.
Employer Vaccine Leave Policy Fair
An Alberta Court of Justice decision finding an employer’s mandatory vaccination
policy reasonable and rejecting a constructive dismissal claim arising from
the employee’s placement on unpaid leave.