FAQ's Cases - Stewart McKelvey

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Page: 14[37] When parties contract for a specified period of notice or pay in lieu they arechoosing to opt out of the common law approach applied in Bardal. In doing so,the parties should not be taken as simply attempting to replicate common lawreasonable notice. The Alberta Court of Appeal explained as follows in Brown v.Pronghorn Controls Ltd., 2011 ABCA 328, 515 A.R. 128, at para. 47:If the contract entitles the employee to payment ofmoney, howsoever calculated, on termination, that rightto that money is contractual. As such, the parties werenot bound to specify an entitlement that is equal or evenanalogous to the quantum of reasonable notice that thecommon law might require if the contract was silent.2012 ONCA 425 (CanLII)Damages for contractually stipulated notice or pay in lieu should not beanalogized directly to damages for common law reasonable notice. The partieshave specifically contracted for something different; it is an error to simply equatethe two.[38] This case demonstrates this point. Here, the maximum entitlement underthe agreement is twelve months, which is approximately half of the upper end ofthe range of damages for wrongful dismissal at common law. The agreementalso limits the damages to a quantum based on the appellant’s base salary.Therefore, the contractually stipulated damages exclude the bonus (valued at upto one-half the appellant’s base salary), car allowance and other benefits fromthe calculation, which would be included in total compensation under the
Page: 15common law (providing, in the case of the bonus, that the trial judge did not makea finding that it was discretionary, at the employer’s option).(2) Payment in lieu of a fixed term of notice, being liquidated damagesor a contractual amount, is not subject to a duty to mitigate[39] The application judge likewise fell into error when, in following Graham, heconcluded that: “[T]he mere fact that the parties have agreed on the period ofreasonable notice does not mean that the obligation to mitigate is ousted by2012 ONCA 425 (CanLII)agreement.”[40] Having concluded that the damages flowing from the breach of acontractually stipulated term of notice are indistinguishable from damages forbreach of reasonable notice at common law, the application judge found that theduty to mitigate applied to the contractual term as it did at common law. In soreasoning, the application judge’s initial error in conflating these two types ofdamages was compounded.[41] Appellate courts have held that mitigation does not apply to liquidateddamages or contractual amounts: J.G. Collins Insurance, at pp. 937-38. SeeHarvey McGregor, McGregor on Damages, 16th ed., (London, UK; Sweet &Maxwell Ltd., 1997), at pp. 322-23.[42] For instance, the language of the English Court of Appeal in Abrahams v.Performing Right Society Ltd., [1995] I.C.R. 1028 is instructive. Hutchison L.J.,
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The Labour Relations BoardSaskatche
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3unionized workforce at their plant
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5[15] In addition, there was some h
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7Employee “D”: He was on his pr
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9[37] The Board did not have the be
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11[48] Shortly after Mr. Copeland b
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13credible reason for the disciplin
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15outlined by the Board in RWDSU v.
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173. Order for captive audience mee
Page 19 and 20: 19for his failure to produce the wi
Page 21 and 22: 21[95] Similarly as noted in the qu
Page 23 and 24: 23[103] Also, in The Newspaper Guil
Page 25 and 26: 25rights under the Act. The Employe
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Page 29 and 30: 29respect to the section of the Alb
Page 31 and 32: 31meetings, would have been within
Page 33 and 34: 33[143] In respect of the complaint
Page 35 and 36: - 2 -[2] The plaintiff, Susan Chart
Page 37 and 38: - 4 -by the time she finished there
Page 39 and 40: - 6 -[24] Testimony was received fr
Page 41 and 42: - 8 -would feel grateful for the fo
Page 43 and 44: - 10 -[49] 2. Comfortable, even tem
Page 45 and 46: - 12 -[67] Another complaint was th
Page 47 and 48: - 14 -bottom of the problem and the
Page 49 and 50: - 16 -member about something amusin
Page 51 and 52: - 18 -[111] Given that the meeting
Page 53 and 54: - 20 -[130] Some of the plaintiff
Page 55 and 56: - 22 -[146] The plaintiff’s expla
Page 57 and 58: COURT OF APPEAL FOR ONTARIOBETWEENC
Page 59 and 60: Page: 3[5] In his application, the
Page 61 and 62: Page: 5(c) By the Employer at any t
Page 63 and 64: Page: 7continuation, in the amount
Page 65 and 66: Page: 9D. ANALYSIS[23] It is well-s
Page 67 and 68: Page: 11[28] The appellant submits
Page 72 and 73: Page: 16addressing the issue of a c
Page 74 and 75: Page: 18application of mitigation:
Page 76 and 77: Page: 202008 ONCA 479, 91 O.R. (3d)
Page 78 and 79: Page: 22[56] Notably, the concern e
Page 80 and 81: Page: 24termination without cause,
Page 82 and 83: Page: 26[64] The costs on the appli
Page 84 and 85: The parties agree this Board has th
Page 86 and 87: Mr. Wallace. The evidence is that M
Page 88 and 89: Mr. Mutter and Mr. Wallace each tes
Page 90 and 91: Mutter spoke. He testified he was a
Page 92 and 93: saw (or was told by the crew) Mr. K
Page 94 and 95: and heard, as well as other factors
Page 96 and 97: When viewed in that light, it is fa
Page 98 and 99: IN THE SUPREME COURT OF BRITISH COL
Page 100 and 101: Balogun v. Deloitte & Touche, LLP P
Page 113 and 114: Page 2of the immediate problem that
Page 115 and 116: Page 4- He admitted that he had pla
Page 117 and 118: Page 626 26. The Grievor's conduct
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Page 8he had a problem with was fro
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Page 10supervisor. Counsel argued t
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Page 12hope to gain a financial ben
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Page 1483 83. McKinley is an import
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Page 16(iv)Has the employer attempt
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] This is an Application under se
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[10] Sean McKay also testified on b
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THE LAW[19] Section 5 of the Code p
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that ensued. There is no evidence t
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] The applicant has filed two App
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CHRONOLOGY OF KEY EVENTS[11] The ap
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tasks beyond his functional limits
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do what they can and that if someon
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checking summaries before stating t
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Roehl in June or to the respondent
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Section 10 of the Code defines hara
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was assigned duties that required h
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-last portion of the day he levels
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[66] I recognize that some of the c
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was made aware on May 22/07 that hi
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“To be honest Tony I don’t know
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is older, or believed that the appl
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[91] The applicant also submitted t
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steps to address allegations of dis
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this period lessening, in my view,
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[109] The respondent submits that i
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that the events of May 22 may have
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Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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