Jeff Polsky has responded on the issue of at will employment and we'll accept that
there is good and bad in both systems. The most important
thing for employers from either the US or Canada operating in
the other country is to understand the difference and make
appropriate adjustments in hiring and firing practices.
Jeff's post also asked about jury trials in Canada, and
specifically whether it was really true that employment claims
don't go to juries and don't result in punitive damage
Both jury trials and punitive damages are possible in Canada,
but they are rare and limited. We recently wrote about a
jury case in British Columbia in which more than $800,000 was
awarded to the terminated employee, including $573,000 in punitive
damages. From the Canadian perspective, it is an
extraordinary case, both because it is so unusual to have a
jury trial in the first place, and because the damage award
was unusually high.
There are two very important constraints on the number and
consequences of jury trials in employment matters. First,
jury trials are expensive and risky undertakings. In
British Columbia, the plaintiff must pay significant fees
in advance of having a jury trial. A five day jury
trial will require at least $5,000 up front. If the
plaintiff is not successful, there is no way to recover those costs
and almost always there will be an order to pay costs to
the defendant employer. An unsuccessful plaintiff will
typically face a bill in the tens of thousands of dollars.
Second, the Supreme Court of Canada has set strict rules on when
punitive damage awards are appropriate, and how much they should
be. We're talking about hundreds of thousands of dollars
at the high end, not the millions we hear about being awarded by US
In short, employers in Canada need to know that a badly handled
termination can lead to significant damages – whether
awarded by a jury or a judge – but we are unlikely to see
a large number of jury trials in employment cases, and when we do,
the damages will be relatively modest.
On behalf of Canadian employers with operations in
the US, my question to Jeff is: How do you minimize the
risk of a runaway jury?
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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