This Email Newsletter contains just a few of the many new cases and findings detailed for the Canadian Law community quarterly in David Harris's Canadian Cases On Employment Law Quarterly, available for purchase online from Carswell.
Introduction The facts of Whiten are reproduced elsewhere and need not be repeated. These were exceptional facts and are unlikely to be repeated. Nonetheless the court’s approval of the jury award has created a new higher edge against which other claims, even though of a lesser degree, will be measured. Prior to Whiten, awards of punitive damages in excess of $100,000 were noteworthy and few. Way back when ( 1989 ) The Ontario Court of Appeal in Ribeiro v CIBC, did increase the trial award of $10,000 to $50,000, but that decision was then considered exceptional, even against a chartered bank, which would be unlikely, it is submitted, to be a deterrent. Ribeiro’s fact situation was also unusual. Criminal charges were laid against the plaintiff as a result of “an unholy alliance” between the police and the security personnel employed at the bank. These charges were dismissed at the preliminary inquiry. A recent Ontario Court of Appeal decision in Khazzaka v. Commercial Union followed the pattern set by Whiten and sustained a jury award of $200,000 for punitive damages, oddly enough, also against an insurer raising an arson defence. The court found that the insurer had acted unfairly to the plaintiff by persisting in denying the claim when it had no credible evidence to do so, even when its defence had “crumbled”. The award of $200,000 was sustained on appeal. What Does All This Have To Do With Employment Law, Given Wallace? This is a good question. Although there is nothing in Wallace which prevents an award of punitive damages, even where there has been an extension of notice granted, no decision at an appellate level has allowed both the extension and an award of punitive damages. Marshall v Watson Wyatt is a good example. The Wallace extension however is of no value when the plaintiff has mitigated the loss. Even if there is a finding of unfair conduct on the part of the defendant, this will be of little solace to the plaintiff. The Ontario Court of Appeal did deal with this issue, albeit obiter dicta, in its recent decision of Prinzo v. Baycrest Centre. Prinzo had mitigated her lost income. Justice Weiler, speaking for the unanimous court, addressed the issue that perhaps the Wallace extension could be treated as a severance payment which does not require mitigation offset. This would be a stronger agrument, in particular, given the recognition in Wallace that the extension is designed also to compensate for injured feelings and intangible losses. The court’s aside was clearly obiter as that argument had not presented to it. This is all very interesting, but also one would speculate that in such circumstances an award of punitive damages may be more likely. Let's Go Back To McKinley...Way back a few pages or mouse clicks, we looked at McKinley and BC Tel. You may recall that the trial judge determined, as was approved all the way up, that there was not sufficient evidence to let the punitive damage case go to the jury. With the shake up in punitive damages, this deserves a little closer look. The Supremes did state in McKinley, again with that nasty obiter comment attached, that a breach of human rights statue could give rise to a punitive damage claim. For those of us watching Human Rights cases proceed with breathtaking snail like pace, this could be a sigh of relief. In appropriate cases, such a claim could be used to support a Wallace extension and/or a punitive damage claim. With Whiten now in place, it could be a new era…. For an extensive reference library of cases and findings in Canadian courts, subscribe now to Canadian Cases On Employment Law (C) 2002 David Harris L.L.B. Barrister &
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