Ontario Court of Appeal confirming the Ontario Superior Court of
The defendant Ivanov, a licensed real estate agent, dismissed
the plaintiff Slepenkova from her position as a real estate sales
person when the plaintiff refused to amend her employment
agreement. The proposed amendment would have eliminated the
plaintiff's entitlement to bonuses. The plaintiff was employed
through a series of one-year contracts that provided for
termination by the defendant upon two-week's notice. In light
of her refusal, the defendant terminated the employment agreement
by letter but also sent a pager message to the other agents saying
that the plaintiff was terminated for "non-production and
refusal to accept the new contract terms." The plaintiff
initiated an action seeking damages for wrongful dismissal.
The issues in this case were whether the plaintiff was employed
on an indefinite term, whether the two-week notice period provided
in the one-year employment agreement was enforceable, and whether
the defendant's actions were sufficient to increase the
plaintiff's award for damages in the wake of the Supreme Court
of Canada's decision in Honda Canada Inc. v Keays.
Post Honda v. Keays it was thought that damages based on
the Supreme Court of Canada's decision in Wallace v. United
Grain Growers Ltd. would be rare because employees would now
have to prove that the manner of dismissal, in and of itself,
caused actual mental distress.
The Ontario Court of Appeal upheld the trial court's finding
that the plaintiff was employed for an indefinite term and not as a
contractor, that the two-week notice period was unenforceable as it
was below the minimum legislative requirements, and that the
defendant's conduct was sufficient to sustain an increased
award for Wallace damages notwithstanding the release of
Honda v. Keays. The plaintiff was awarded 4 months'
pay in lieu of notice and an additional 2 months' pay in
Wallace damages by the trial court.
In upholding the award for Wallace damages, the Ontario
Court of Appeal relied on the trial judge's finding that the
defendant's pager message was unfounded and damaging to the
plaintiff's reputation. The Court held that this finding of
fact was sufficient to sustain the Wallace award
notwithstanding the Honda v. Keays decision was rendered
after the trial judge's decision.
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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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