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.