The Canadian Abridgment eDigests - Employment Law

The Canadian Abridgment eDigests -- Employment Law

2016-40 October 03, 2016

LAB.II.2.b.v

Subject Title: Labour and employment law

Classification Number: II.2.b.v

Employment law -- Elements of employment relationship -- Duties of employee to employer -- Miscellaneous

Employee decided to rehire employee who had quit if he agreed to be responsible for some of damage he allegedly caused, and employee signed assignment of wages form -- Employee made complaint to Ministry of Labour for unpaid wages, and it was determined that employee was owed $2,078.56 -- Employer brought action claiming employee owed $4,309.14 for assignment of wages and damages -- Action allowed in part -- Pursuant to Saskatchewan Employment Act, employer held wages in trust for employee -- Employer was trustee holding wages in trust for employee and it was conflict of interest and breach of fiduciary duty to execute assignment of wages -- Pursuant to s. 9-2 of Act assignment of wages to secure payment of debt was invalid and could not be relied on by employer -- Employer proved he incurred $200 on behalf of employee for damage that employee had done to hotel bed, but he failed to prove any other legitimate debt clam -- Employer had not established employee negligently or wilfully caused damage to equipment -- Employer was entitled to damages of $200.

101211532 Saskatchewan Ltd. v. Cronan (2016), 2016 CarswellSask 536, 2016 SKPC 91, D. Kovatch Prov. J. (Sask. Prov. Ct.) [Saskatchewan]

LAB.II.3.k

Subject Title: Labour and employment law

Classification Number: II.3.k

Employment law -- Interpretation of employment contract -- Miscellaneous

Wages -- Rotational assignment allowance falls within definition of "wages".

Pisko v. Trican Well Service Ltd. (2016), 2016 CarswellAlta 1679, 2016 ABQB 500, J. Farrington, in Chambers Master (Alta. Q.B.) [Alberta]

LAB.II.6.b.iii

Subject Title: Labour and employment law

Classification Number: II.6.b.iii

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Employment law -- Termination and dismissal -- Notice -- Effect of contractual terms regarding notice

Employee worked for employer for more than 11 years -- Employee’s employment was terminated and he was given 16 days of working notice and 60 days of payment in lieu of notice, which was more than amount required under terms of employment contract and more notice than statutory minimum under terms of Employment Standards Code (Alta.) -- Employment contract excluded rotational assignment allowance (RAA) from calculation of payment in lieu of notice upon severance -- Employee brought action for damages for wrongful dismissal claiming that employment contract breached Employment Standards Code which provides that severance payments must be calculated based on "wages" -- Employee argued that employment contract was therefore void and unenforceable, thereby preserving common law position on notice -- In any event employer did include RAA in severance payment it made to employee -- Employer brought application for summary dismissal of employee’s action -- Application granted -- RAA fell within definition of wages -- Employer more than met its obligations under employment agreement, as affected by Employment Standards Code (Alta.) and exceeded minimum standards required under Code when wages were properly calculated -- There was enforceable notice period provision in employment contract and it was not necessary to sever any portion of employment contract -- Employer paid 60 days of payment in lieu of notice (including RAA) when it was obliged to pay 44 days (including RAA) having given 16 days of working notice -- No further issues remained -- Offending provision of employment contract dealt with calculation of wages and remedy for that type of breach was to calculate wages properly, not to rewrite agreement of parties regarding applicable notice period when that notice period complied with Code.

Pisko v. Trican Well Service Ltd. (2016), 2016 CarswellAlta 1679, 2016 ABQB 500, J. Farrington, in Chambers Master (Alta. Q.B.) [Alberta]

LAB.II.6.b.v.O

Subject Title: Labour and employment law

Classification Number: II.6.b.v.O

Employment law -- Termination and dismissal -- Notice -- Considerations affecting length of notice -- Multiple factors considered

In April 2009 employee accepted position as Chief Financial Officer (CFO) with employer -- In November 2009 employee took on position of both CFO and Chief Operating Officer (COO) but COO duties and title were dropped in March 2012 -- From that time, employee was to work three days per week at salary of $75,000 and raise capital for expansion ventures -- Employee was paid commission of 4 per cent on all capital that he raised -- Relationship continued until early November 2012, when employee was terminated from CFO position -- Employee brought action for wrongful dismissal -- Action allowed -- Employee was employed by employer from April 2009 and until he was effectively terminated without cause on November 15, 2012 -- Over that span of time, his responsibilities and rate of remuneration changed from time to time -- Given duration and particulars of employment relationship and considering employee’s age and qualifications, appropriate term of notice was nine months, which equated to damages in amount of $56,250 -- Employee was also entitled to damages for lost opportunity to earn commission from raising capital in amount of $75,000 -- Employee was able to work on other contracts while working for employer -- Total damages were reduced by amount of $23,356.67 to reflect amount earned by employee from other sources -- Employee was awarded total damages in amount of $107,893.33 as result of termination.

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TCF Ventures Corp. v. Cambie Malone’s Corp. (2016), 2016 CarswellBC 2308, 2016 BCSC 1521, J. Williams J. (B.C. S.C.) [British Columbia]

LAB.II.6.c.i.D

Subject Title: Labour and employment law

Classification Number: II.6.c.i.D

Employment law -- Termination and dismissal -- Remedies -- Damages -- Commissions

In April 2009 employee accepted position as Chief Financial Officer (CFO) with employer -- In November 2009 employee took on position of both CFO and Chief Operating Officer (COO) but COO duties and title were dropped in March 2012 -- From that time, employee was to work three days per week at salary of $75,000 and raise capital for expansion ventures -- Employee was paid commission of four per cent on all capital that he raised -- Relationship continued until early November 2012, when employee was terminated from CFO position -- Employee brought action for wrongful dismissal -- Action allowed -- Employee was employed by employer from April 2009 and until he was effectively terminated without cause on November 15, 2012 -- Over that span of time, his responsibilities and rate of remuneration changed from time to time -- Given duration and particulars of employment relationship and considering employee’s age and qualifications, appropriate term of notice was nine months, which equated to damages in amount of $56,250 -- Employee was also entitled to damages for lost opportunity to earn commission from raising capital in amount of $75,000 -- Employee was able to work on other contracts while working for employer -- Total damages were reduced by amount of $23,356.67 to reflect amount earned by employee from other sources -- Employee was awarded total damages in amount of $107,893.33 as result of termination.

TCF Ventures Corp. v. Cambie Malone’s Corp. (2016), 2016 CarswellBC 2308, 2016 BCSC 1521, J. Williams J. (B.C. S.C.) [British Columbia]

LAB.II.6.d.i

Subject Title: Labour and employment law

Classification Number: II.6.d.i

Employment law -- Termination and dismissal -- Practice and procedure -- Jurisdiction

Claimant was employed as motor coach operator from May 2014 to July 2015 -- Claimant drove workers to and from mine sites during construction of mine expansion -- Employer laid off claimant and other drivers at conclusion of project -- Claimant filed unjust dismissal claim and human rights complaint -- Employer objected adjudicator lacked jurisdiction under s. 242(3.1)(b) of Canada Labour Code -- Objection granted -- Both complaints related to claimant’s employment and termination -- Human rights complaint accused employer of discrimination in employment -- Until claimant became aware of jurisdictional issue, unjust dismissal claim also included allegations of discrimination on bases of gender and disability -- Essence of both claims was the same -- Human rights complaint was substantially similar -- Canadian Human Rights Act provided real redress -- Complaint dismissed.

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Kingsfield and Prince Albert Northern Bus Lines (Unjust Dismissal), Re (2016), 2016 CarswellNat 3618, Anne M. Wallace Adjud. (Can.Adjud.(CLC Part III)) [Federal]

LAB.III.3.a

Subject Title: Labour and employment law

Classification Number: III.3.a

Employment standards legislation -- Definitions -- Employee

Applicant provided industrial and commercial cleaning services -- Applicant applied for review of order to pay claimant cleaner for unauthorized deduction from wages -- Employer deducted cost of repairing broken scrubber from claimant’s wages -- Applicant took position claim was independent contractor, not employee -- Application dismissed -- Claimant was employee, not independent contractor -- Claimant was not in business for self -- Applicant billed clients, received payment for claimant’s services, then paid claimant -- Claimant was dependent on applicant for client referrals -- Opportunity for profit was determined by applicant -- Claimant had no shares in business or discretion in conduct of business -- Applicant provided cleaning supplies -- Applicant exercised considerable control over claimant -- Applicant did not have claimant’s written authorization to deduct from wages.

1439787 Ontario Inc. v. Brockwell (2016), 2016 CarswellOnt 12789, Kelly Waddingham V-Chair (Ont. L.R.B.) [Ontario]

LAB.III.5.e.ii

Subject Title: Labour and employment law

Classification Number: III.5.e.ii

Employment standards legislation -- Wages -- Deductions from wages -- Miscellaneous

Truck driver (employee) quit his employment at D Farms Ltd. without notice -- Employee did not return truck to D Farms’ Lansdowne, N.B. facility, but to space D Farms Ltd. rented in Moncton, where he had initially picked up truck -- Charge for picking up truck at location other than specified location was set out in contract -- Employer deducted amount from employee’s paycheque -- Employee filed complaint under Canada Labour Code -- Inspector issued payment order -- Employer appealed -- Appeal dismissed -- Employer did not effectively obtain proper written authorization to deduct funds -- Contract language did not allow for reasonable conclusion that vehicle was to be returned to Lansdowne, N.B. facility, rather, it was to be returned to "D Farms" -- Contract was not signed on date of hire, and employee did not have opportunity to alter contract -- Charge set out in contract was not genuine attempt to quantify true cost of retrieving vehicle -- Employer was in Moncton 10 times per day, which suggested no significant financial loss would have been incurred to pick up truck in Moncton -- Contract required employee to return truck to "D Farms", which meant return it to his employer D Farms Ltd., not to specific geographic location or agricultural operation of some type.

Donnelly Farms Ltd. and Martin, Re (2016), 2016 CarswellNat 3790, Guy G. Couturier Member (Can.Adjud.(CLC Part III)) [Federal]

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LAB.III.15.b.iv

Subject Title: Labour and employment law

Classification Number: III.15.b.iv

Employment standards legislation -- Administration and enforcement -- Jurisdiction -- Miscellaneous

Inspector concluded truck driver (appellant) could not file wage recovery claim against D Ltd. under Part III of Canada Labour Code because appellant was covered by collective agreement between D Ltd. and bargaining agent (association) -- Appellant filed wage recovery appeal -- Respondent D Ltd. objected to jurisdiction of referee to hear appeal, alleging Part I of Code applied -- Referee lacked jurisdiction to hear appeal -- Appellant was covered by Part I of Code -- Appellant was represented by association, which had been recognized as bona fide trade union -- Appellant was employed by D Ltd. and was covered by valid collective agreement -- As appellant was not in common law employment relationship with D Ltd., he was not entitled to bring wage recovery claim under Code -- Appellant should have grieved any wage related matter.

Elazrag and Dynamex Canada Ltd. (Wage Recovery), Re (2016), 2016 CarswellNat 3934, Roger Gunn Referee (Can.Adjud.(CLC Part III)) [Federal]

LAB.III.15.j

Subject Title: Labour and employment law

Classification Number: III.15.j

Employment standards legislation -- Administration and enforcement -- Miscellaneous

Claimant filed claim for termination and overtime pay in August 2015 -- Employer proposed settlement including payment of termination and overtime pay -- Claimant signed Settlement Agreement and General Release and Resignation Agreement -- Employer paid amounts owing pursuant to settlement -- Ministry of Labour’s October 2015 correspondence recorded claim as withdrawn -- Claimant received October 2015 notice of overpayment of employment insurance payments -- Claimant accused employer of incorrectly recording settlement payments on Record of Employment -- Claimant filed November 2015 application to void settlement -- Claimant alleged he was tricked into signing settlement -- Application dismissed -- Claimant was not fraudulently tricked or coerced into signing settlement -- Claimant knew what he was signing, and signed agreement freely and voluntarily -- Dissatisfaction with having to pay portion of funds to Employment and Social Development Canada was not basis for vitiating settlement.

Dey v. Majestic Marble Import Ltd. (2016), 2016 CarswellOnt 12474, Roslyn McGilvery V-Chair (Ont. L.R.B.) [Ontario]

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