FAQ's Cases - Stewart McKelvey

- 22 -[146] The plaintiff’s explanation was that she had to work a year to earn vacation time.The ten days were earned in 2005 and used up in 2006. In 2006, she earned two more weeks ofvacation for use in 2007.[147] Roberta Pozniak’s evidence was that the pattern the plaintiff alleges in which hervacation pay is earned in one year for use in the next had been in place for a few years, but hadchanged at some point. After that, the plaintiff was using the vacation time in the year that sheearned it. Therefore, the plaintiff had used her 2006 vacation in 2006. She had been paid thevacation pay earned in January and February, 2007 (i.e. up to the day the plaintiff left thedefendant’s employment).[148] However, Exhibit 6 is a January, 2007 calendar showing ten vacation days at thetop of the page.2011 ONSC 2148 (CanLII)[149] Roberta Pozniak’s explanation is inconsistent with the notations on the calendars,and the plaintiff’s explanation is preferred. The plaintiff’s version is also consistent with s. 33(1)of the Employment Standards Act, which says:“An employer shall give an employee a vacation of at least two weeks after eachvacation entitlement year that he or she completes.[150] The plaintiff’s income tax return for 2006, found at Exhibit 1, Tab 27, showsemployment income of $24,450. She is entitled to four percent of that for vacation pay, being$978, payable forthwith.[151] COSTS[152] In view of the mixed success and the apparent modest financial resources of theplaintiff, each party shall bear its own costs.**********___________________________Justice James A. S. Wilcox