New Federal Statutory Holiday on September 30, 2021

New Legislation Enacted

On June 3, 2021, the federal government’s Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation) received Royal Assent. This bill amends the Canada Labour Code to provide for annual observance by the federal government and federally regulated workplaces (e.g., airlines, banks, interprovincial transportation companies, telecommunication companies, etc.) of a new statutory holiday on September 30, the National Day for Truth and Reconciliation. While provincially regulated workplaces are not subject to this new statutory holiday, some employers may voluntarily decide to recognize it.

Employer’s Liability for Severance Depends on Size of Global Payroll

Precedential Decision by Judiciary or Regulatory Agency

The Ontario decision (docketed 2021 ONSC 4290) establishes that to determine whether liability for statutory severance pay under the Ontario Employment Standards Act, 2000 will attach, employers must consider the size of their global payroll. If an employer’s payroll in Ontario is less than $2.5 million but its global payroll is $2.5 million or more, the employer will still be liable for severance pay under the ESA (as long as the employee in question has at least five years of service).

Punitive Damages for Supervisor’s Conduct

Precedential Decision by Judiciary or Regulatory Agency

In the Ontario Court of Appeal (OCA), an employer appealed a jury’s $150,000 punitive damage award against the employer. The OCA denied the appeal. This decision puts employers on notice that if the conduct of a supervisor in their workplace demonstrates that the supervisor has little regard for the safety of an employee, the supervisor’s conduct may be considered the employer’s conduct, potentially resulting in liability for significant punitive damages.

Viability of Constructive Dismissal Claim Due to COVID-19 Layoff

Precedential Decision by Judiciary or Regulatory Agency

Just six weeks after holding that Ontario Regulation 228/20 (IDEL Regulation) under the Employment Standards Act, 2000 did not remove an employee’s common law right to claim constructive dismissal arising from a layoff during the COVID-19 pandemic, the Ontario Superior Court of Justice (SCJ) came to the opposite conclusion. In a decision (docketed 2021 ONSC 3135), the SCJ decided that the IDEL Regulation precludes an employee who was laid off during the pandemic from claiming constructive dismissal at common law. We will report further on any appeal or important development.

Whether CERB Should be Deducted from Damages for Wrongful Dismissal

Precedential Decision by Judiciary or Regulatory Agency

To date, few decisions in Canada have considered whether the amount of the Canadian Emergency Response Benefit (CERB) employees receive after their job termination should be deducted from their damages in lieu of common law reasonable notice. CERB was a program, now closed, the federal government set up to provide financial support to employed and self-employed Canadians who were directly affected by COVID-19.

In Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, the Ontario Superior Court declined to reduce the employee’s entitlement to damages in lieu of reasonable notice by the amount of Canada Emergency Response Benefit (CERB) he received. In Hogan v. 1187938 B.C. Ltd., 2021 BCSC 1021, the Supreme Court of British Columbia recently distinguished Iriotakis when it deducted the employee’s CERB payments from his damages for wrongful dismissal. Based on the reasoning of the Ontario and BC courts in these cases, it appears that the decision whether to deduct CERB payments may depend on whether they will put the employee in a better position economically than they would otherwise be.