Ontario Court of Appeal confirming the Ontario Superior Court of Justice, 2009
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.