Having spent enough time in that court and watching what goes on, I can say without hesitation that most litigants are unrepresented and have not sought a legal opinion on their case. I believe that people think they are saving money by not hiring a lawyer or agent to provide an opinion. I disagree vehemently with that premise and will explain why.

Some cases started in Small Claims Court fail because the law does not provide any relief in the circumstances. Sometimes, there is a legitimate claim but no evidence to support it. At times, plaintiffs sue the wrong people or companies, to name just a few difficulties. Despite what you see on television, prosecuting a claim even in Small Claims Court, is not easy. Lay people do not know the law, procedure or rules of evidence.

I highly recommend that before you start an action in Small Claims Court, you obtain a legal opinion from a lawyer. Most lawyers will meet with you and review your situation for a consultation fee. Even if you have to pay $500 for such a consultation, this could in the end save you much more in court costs and your time. You know the saying…penny wise, pound foolish.

If the lawyer you consult believes that you have a legitimate claim, you have several options as to how to proceed. You can retain that lawyer to act for you throughout the matter or you can retain the lawyer to draft the statement of claim but not act for you in the proceeding. I have done this a few times for clients of mine with cases worth less than $10,000. A properly drafted statement of claim is the road map that assists the Deputy Judge in knowing what the case is about and how you plan on proving it. The statement of claim will assist you in knowing what evidence you will need at trial. When you speak with a lawyer, ask him or her, which documents you will need at trial. Not every document you have in your file is necessary to prove your case. Most unrepresented litigants adduce far too many documents because they do not understand the issues and hence the documents needed to respond to the issues.

If you intend on using documents at your trial, there are two basic principles you should remember. Firstly, all the documents you intend to rely upon at trial should be bound in a document brief with tabs and a spine. The entire document brief can then served on the opposing side no later than 14 days before trial. At trial, you can submit into evidence the document brief as “Exhibit 1”. What you should absolutely not do, is go into the witness box with a file of loose papers not having thought about your documents beforehand and then start fishing around for them as you give your testimony. This does not leave a good impression on the Deputy Judge. I have seen many judges become very frustrated with this behavior because it is a waste of the court’s time. The court time in this province is too hard to come by and is not there to be squandered by the public.

If your claim involves unpaid rent for example and you have a series of NSF cheques that you intend to submit into evidence, make photocopies of your cheques. The photocopies along with the tenancy agreement if there is one, should go into your document brief. In addition to that, set out on one piece of paper for the judge’s use, the cheque numbers and the amount of each cheque that went NSF. The amount column should be tallied at the bottom of it so that there is no question as to how much you are claiming for at trial. Don’t make the judge take out a calculator and do the math for you.

At any level of court, the litigants or their representatives must understand that their primary task is to educate the judge. While it is true that judges have a command of the law, they will not do your job for you. You must present your evidence and your damages in an organized manner so that the judge does not have to work at figuring out your case. The judge’s role is to make a finding of fact as to liability and damages. You should be doing everything you can to make the judge’s job easier so that he or she can find in your favor.

If you need advice on a matter that you are intending to take to Small Claims Court, please contact me.

The starting point for any discussion about evidence in Small Claims Court is section 27 of the Court of Justice Act, Ontario. That section states firstly that with certain exceptions, the Small Claims Court may “admit into evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious”.

The evidence must be relevant and non-repetitious.

Whenever you are trying to decide upon the relevance of a document or oral testimony, ask yourself several questions. Firstly, what is the point of this evidence? What does this document or witness say? How does this evidence relate to the subject matter? How does it support the theory of my case?

In my view, relevant documentary evidence can be more persuasive than oral testimony about the subject matter. If the document makes the point, then you don’t necessarily need the author of the document to say the same thing.

Determining whether your various pieces of evidence including oral testimony is repetitious, is a little easier. A guiding principle would be that if a document or a witness makes the point, don’t clutter up the proceeding with additional evidence that says the same thing. The court is not more persuaded because you have three witnesses when one will suffice.

Let me now address a few practical tips about handling documentary evidence at trials.

If you intend to rely upon more than a few documents at trial or you have a few documents with multiple pages, I strongly suggest binding the documents in a spiral-bound book, placing them in the order in which you intend to rely upon them at trial or in chronological order. Like a storybook with chapters, your document book will help the judge understand the story and the order in which it occurred. Make sure to use tabs and number each page in the top right hand corner. This will assist the judge and/or witness in turning immediately to a particular document. The document book may then be entered into evidence as one entire exhibit. Keeping your document in this manner will also ensure that they do not get misplaced.

You should make four copies of your document book: 1 for yourself, 1 for the witness (if applicable), 1 for your opposing litigant and 1 for the judge. If you want your witness to review the documents, he/she should have a document book with them in the stand. The judge will find this system much easier to deal with as opposed to you walking back and forth to the witness stand with one document at a time. Remember that you are there to promptly get to the point of your case and not waste the court’s time and therefore, resources.

Before your next visit to Small Claims Court, spend considerable time thinking about and gathering your evidence. Ensure it is relevant, not repetitious and presented in an organized fashion. This will greatly assist you and the court.

At the same time that the Keays case was making its way to the Supreme Court of Canada, the Ontario Court of Appeal rendered a decision a similar case entitled Mulvihill v. The Corporation of the City of Ottawa. In the fall of 2004 Ms. Mulvihill, an employee of the City of Ottawa, took a stress leave from work claiming she was suffering harassment at the workplace. The City investigated the complaint and found nothing. Ms. Mulvihill was not satisfied with the results of the investigation and refused to return to work unless she was re-assigned to a different department. She complained about her supervisors in an email message addressed to the City Manager and the Mayor. On November 16, 2004, the City terminated Ms. Mulvihill’s employment claiming just cause (insubordination with respect to the email).

Just prior to the trial, the City withdrew its defence of just cause and paid Ms. Mulvihill 3 months of salary in accordance with her employment contract. At the trial, Ms. Mulvihill was awarded 4.5 months of pay in lieu of notice plus 5.5 months salary and benefits on account of “Wallace damages”. The Trial Court awarded “Wallace damages” because the City engaged in bad faith dismissal tactics when it terminated Ms. Mulvihill’s employment during her stress leave and because the City initially terminated her employment with cause but then later withdrew its defence.

The City appealed, inter alia, on the issue of the “Wallace damages”.

The Court of Appeal of Ontario held that in terminating Ms. Mulvihill’s employment with cause for the reason of insubordination, the City was acting on an honest and reasonably held belief that the employee’s insubordination led to the claim of just cause. Secondly, the Court held that Wallace damages could not be awarded merely because Ms. Mulvihill’s employment was terminated during her sick leave. The Court held that the employer made a “mistake” in terminating employment during the leave of absence and that the legal standard for awarding Wallace damages is not whether an employer made a mistake but rather, whether the employer engaged in bad faith.

The upshot of the Mulvihill and Keays cases is that it is now very difficult for an employee to succeed on a claim for Wallace damages. In addition, a successful employee will have to show actual harm caused as a result of the alleged bad faith conduct by the employer.

If your employment has been terminated with or without just cause, please contact me to review your situation. Every situation is different and should be reviewed by a lawyer.

The OPGT considers itself a guardian of last resort, meaning they do not wish to step in to become a guardian but will only do so if the incapacitated person does not have a Power of Attorney and there is no one willing to apply to be a guardian or they are unaware that the person has a valid Power of Attorney for Property (“PoA”).

Section 16 of the Substitute Decisions Act (Ontario) (“SDA”) states that “a person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section”. The section stipulates however that no assessment will be made unless the person requesting the assessment has made reasonable inquiries about whether the incapacitated individual made a Power of Attorney for Property or if not, whether a spouse, partner or relative intends to make an application under s. 22 of the Substitute Decisions Act for to replace the OPGT as guardian of property. In other words, if your spouse, partner or relative becomes incapacitated and has no valid Power of Attorney and you or another relative are not prepared to act as that person’s guardian of property, you may request a capacity assessment which will then be sent to the OPGT at which point that office will become that person’s guardian of property (called “statutory guardian”).

The statutory guardianship of property is terminated if the “incapable person gave a continuing power of attorney before the certificate was issued and the power of attorney gives the attorney the authority over all of the incapable person’s property and the OPGT receives a copy of the PoA and a written undertaking signed by the attorney to act in accordance with the PoA and if someone has replaced the OPGT as a statutory guardian (s.16.1). The OPGT may refuse to appoint the applicant however, unless the applicant provide security in the manner and amount fixed by the OPGT. If the OPGT refuses to grant the application, the OPGT shall apply to the court to decide the matter. The court may order such conditions as is necessary.

Only the incapable person’s spouse, partner or relative, attorney named in a PoA or a trust corporation if the incapable person’s spouse or partner consents in writing, may apply to replace the OPGT as a guardian (s.17(1)). Note that this section contemplates that even if a person has a PoA, the OPGT can still become a statutory guardian, presumably before the OPGT finds out that the person has a PoA. In other words, if you have a PoA, give a copy to your attorney(s) named in it so they can produce it quickly if necessary.

The upshot of all of this is that it is easier, less expensive, more expedient and more convenient for everyone, if people would simply attend at a lawyer’s office to prepare a Power of Attorney for Property and Personal Care and be able to produce it when necessary in order to avoid the involvement of the OGPT.

Since then, judges consider two aspects when deciding upon “Wallace” damages: 1) the nature of the employer’s bad faith and 2) the impact of this conduct on the employee’s ability to find alternative employment. Since then, “Wallace” damages have been awarded in a variety of circumstances including false allegations that an employee’s termination was due to his/her inability to perform the job or was for cause, the employer persists in its allegations of cause up to the time of trial, spreading throughout the employee’s industry that his or her employment was terminated because of dishonesty or reprehensible conduct and firing an employee immediately following a return from disability leave due to major depression.

A recent decision from the SCC however has now significantly changed the “Wallace” landscape. In Honda Canada Inc. v. Keays, the SCC changed the test for “Wallace” damages. Keays was a 14-year employee of Honda. Keays suffered from chronic fatigue syndrome which led to frequent absences. He was on a company disability programs that permitted employees to take absences if they provided a doctor’s note confirming that the absence related to their disability. The employer eventually requested Keays to meet with the company’s occupational medical specialist to evaluate whether he was missing work due to his disability. When Keays refused, Honda fired him. The trial court said that was “hardball” and awarded Keays nine (9) additional months in notice based on “Wallace”.

The SCC disagreed that Honda’s conduct was “egregious” and set aside the “Wallace” damages. Now, an employee must demonstrate to the Court that he/she suffered actual psychological harm as a result of the bad faith manner in which the employment was terminated. The SCC also reminded the lower courts that punitive damages are restricted to “exceptional” and “egregious” cases and must not duplicate aggravated damages. Punitive damages will only be awarded where the employer engages in acts that are “so malicious and outrageous that they are deserving of punishment on their own”, states the Court. The SCC also overturned $100,000 in punitive damages awarded to Keays.

If you have an employment law case, please call me to review it. Each case is different and must be individually reviewed.

For employees who earn commission income, the courts must determine what future commissions which might have been earned during the notice period, if any. To do this, the court will review previous earnings and often will look at commission earnings during the same months in which the notice period falls. At other times, the court will take an average of the commission income and award that during the notice period. If the employer’s revenue drops through the notice period, the presumption is that commission income might also have been less. In some cases, if an employer does not diligently pursue an opportunity, which would have garnered commission income to the employee through the notice period, the court may award commission income that is presumed to have been earned.

Loss of fringe benefits such as medical, dental and health benefits do have value, according to case law. The Ontario Court of Appeal has held that the dismissed employee is entitled to the value of lost benefits flowing from the dismissal. The pecuniary (monetary) value of those benefits has been determined based on the employer’s contribution to maintaining those benefits.

Bonuses, profit sharing and stock options are treated much like medical benefits provided they are integral to the employee’s remuneration. For example, a non-discretionary bonus that has become part of the employee’s income is usually awarded through the notice period. To determine the amount of the bonus to be paid through the notice period, the court will consider whether the employer would have paid the employee had he/she worked throughout the notice period. If the employer paid bonuses to other employees during the notice period, courts have generally awarded it to the dismissed employee. Some cases have said it is unconscionable for an employer to deny a bonus to an employee during the fiscal year for the reason that the employee was not in active service when the bonus was paid out. Courts have held that it is suitable to pro-rate a bonus over the notice period. If an employee is deprived of exercising a stock option he/she would have had, had reasonable notice been provided, the court will assess and award damages based on the loss of opportunity.

Sometimes an employee is scheduled for a pay raise but the employer fails to pay it because it falls during the notice period. The cases have been quite clear that employers are liable for pay increases that are set to occur during the notice period provided the increases were part of the employment contract. Where a salary increase was negotiable or discretionary, it is usually not awarded during the notice period.

With respect to a company car, the courts treat it differently depending on the circumstances. For example, a taxable car allowance that is considered as income, is generally awarded during the notice period. If the employee is given a car to use during employment, the courts have awarded the value of the personal use of the car including any related expenses paid by the employer. If a car allowance was used strictly for business use of the car, the value of that is not awarded during the notice period since no loss has occurred during that time.

Housing benefits and real estate losses can sometimes be recovered during the notice period. Mortgage subsidies that would have been paid had the employee worked throughout the notice period have been awarded as part of pay in lieu of notice. In one case, an employer was required to pay the employee losses on the sale of his property, sales commissions, carrying costs and interest when the employee was required to move to a different city to continue working and then once he moved, was dismissed. The key to this kind of recovery however, is whether the losses were reasonably foreseeable as flowing from the breach of the employment contract. A few cases have allowed moving costs so that new employment could be commenced.

Damages for loss of reputation and compromise of competitive position will usually only be awarded where the dismissal itself was done in such a manner as to cause the employee harm in the workplace. There is some traditional case law that prevents recovery under this head of damage but it is not impossible.

I have provided a summary of the few more popular heads of damages obtainable in a wrongful dismissal action. There are certainly other types of damages available that space does not permit examining.

If you have been fired and need a severance package reviewed or a lawsuit commenced, please call me at 905-845-0767 to discuss your situation.

The above is not legal advice and should not be relied upon. You should consult a lawyer to have your specific situation analyzed.

Firstly, progressive discipline is widely understood to mean the process by which an employer evaluates, measures performance and addresses any deficiencies in performance with the employee. The objective of sincere progressive discipline programs, is to raise the employee’s level of competence or correct disruptive behavior, for example. It is also to ward off any allegations of condonation should the employee reject the discipline, resign and claim damages for constructive discipline.

Despite what seems like a practical solution to an employee problem, the employer who engages in progressive discipline often finds themselves being sued for constructive dismissal. The typical argument by an employee who is suspended without pay as an example, is that an unpaid suspension was never an express term of the employment contract.

In the recent Ontario Court of Appeal decision of Haldane v. Shelbar Enterprises Ltd., however, there appears to be an evolution in this area of law. In the Haldane case, the employee was suspended for three days for being “obscenely insolent” with her employer. Haldane suggested that the employer deduct three days pay from her vacation instead or suspending her. When the employer refused that proposal and ordered Haldane to commence her suspension, she resigned and claimed constructive dismissal.

The trial judge found that Haldane had been constructively dismissed. Of note is the fact that at trial, Haldane did not argue that her employment contract did not permit suspensions. The Ontario Court of Appeal agreed with the trial judge but commented that a term permitting reasonably imposed unpaid suspensions could be implied into an employment under three circumstances: 1. through custom and usage; 2. in accordance with the presumed intention of the parties; and 3. as a matter of law by the courts. The Court however, left the decision on whether and when such a term should be implied to a later case when the issue could be fully argued. Thus, it appears that the Court has opened the door to an employer to argue that an unpaid suspension could be viewed as an implied term of the employment contract by way of custom and usage, by presumed intention of the parties or as a matter of law by the courts.

In an opt-quoted case McKinley v. BC Tel, the Supreme Court of Canada (“SCC”) made comments similar to the Ontario Court of Appeal in Haldane. The SCC stated that there may be situations where a lesser form of discipline other than termination, may be appropriate for an offending employee. The SCC’s comments were obiter (they were made as an aside) however and were not made in directly addressing the pre-existing common law that asserts that unpaid suspensions are a form of constructive dismissal.

The case law on this issue is mixed and evolving. Accordingly, if you are an employer considering using this form of discipline, you are well advised to consult a lawyer before employing progressive discipline and unpaid suspensions.

But what happens when long-term employment is governed by a series of fixed-term contracts? What amount of notice upon termination of employment is fair in this situation? Let’s look at a specific example: Ceccol v. Ontario Gymnastic Federation (Ontario Court of Appeal, 2001). In this case, Ms Ceccol was employed for 16 years pursuant to fifteen consecutive one-year contracts. Her yearly contracts concluded at the end of June each year. The contracts stated that any entitlement to notice of termination employment without cause would be governed only by the Employment Standards Act, which provides a minimum amount of notice upon termination of employment without cause. In December 1996, her employer advised her that in June 1997 her contract would not be renewed or extended. She was paid until June 30, 1997 and the company paid her ex gratia payments of three months of her salary provided she signed a release. She declined this offer and sued her employer hoping to have the Court find that she was really an “indefinite-term” employee and thus was entitled to reasonable notice as determined by the common law as opposed the minimum amount provided by the Employment Standards Act. The case turned on the characterization of the employment: whether “indefinite” or “term”.

The trial Court found that both Ms Ceccol and her supervisors believed and acted as if she was in fact a “full-time” permanent employee. In short, the Court looked behind the successive term contracts and found that Ms Ceccol was an “indefinite term” employee. She was awarded reasonable notice in accordance with the principles of common law, which the Court found was sixteen months. This was reduced by four months because she failed to properly mitigate her damages.

The employer appealed the trial Court decision to the Ontario Court of Appeal. The Court of Appeal stated that employers should not be able to avoid the traditional protection of the common law by “resorting to the label of ‘fixed-term contract’ when the underlying reality of the employment relationship is something quite different, namely continuous service…” In addition, the Court found that the language contained in the contract as it related to the extension of the contract was not clear enough to satisfy the Court that the contract was intended by the parties to be for a fixed term only.

If you have any questions regarding your fixed term employment contracts, please contact me at my office.

Firstly, I am addressing here the concept of “insolence” within the workplace. Put simply, being insolent usually involved making remarks or exhibiting behavior in the workplace that is clearly offensive and inconsistent with a professional work atmosphere. “Insolence” is sometimes also described as conduct so extreme as to interfere with the safe conduct of the employer’s business. In the case of Laird v. Saskatchewan Roughrider Football Club, an equipment manager was found to have been properly dismissed without notice on the grounds of “insolence” because he repeatedly make profane remarks and verbally abused officials, opposing players and head coaches despite being warned not to.

In attempting to determine whether the employer was justified in summarily dismissing an employee on the basis of “insolence”, the court will review the employer’s responsibility in contributing to the behavior. For example, a manager who was oppressive and a faultfinder has been held to be partially responsible for an employee’s outburst made in frustration.

Some cases indicate that a single incident of insolence can be sufficient to amount to just cause. These cases typically involve an employee who attacks the honesty, integrity or authority of a supervisor in front of other employees. In one case, the court held that an employee who called his supervisor a “f_____ liar” was properly fired without notice.

Case law also indicates that repeated occurrences of insolence can amount to just cause for summary dismissal. For example an employee who repeatedly insisted upon receiving instructions in writing and made references to psychiatric testing of his supervisor, was properly dismissed without notice.

Courts will also consider whether an employee’s offending remarks are made in the presence of more than one co-worker.

In short, just because an employee is fired without notice for the stated reason of insolence does not mean that the employer will be successful at trial asserting that defence. If you have been dismissed without notice or pay in lieu for the stated reason of insolence, please contact me to review all of the facts and circumstances. Things are often not what they appear on the surface, particularly in employment law.

The basic premise is that it will only be in a rare case that an employee’s activities outside of his/her employment will justify a summary dismissal. In determining this issue, the Courts consider the nature of the position of the employee and the impugned misconduct. Let’s look at one examples.

In Whitehouse v. RBC Dominion Securities, a 2006 Alberta case, an employee who was an investment advisor and a senior executive with RBC, got drunk and brought a prostitute to the employer’s premises after work hours one night, as he had done previously. The employee and the prostitute got into an argument about the prostitute’s fees. She refused to leave the office. The employee left the office, leaving the prostitute in the lobby of the office where she had access to documents. The prostitute used the lobby telephone and left a message on the voice mail of a random employee in the building and then left. The next day the prostitute called the employer demanding the balance of her fees. The branch manager asked the employee twice whether he had brought the prostitute into the office. The employee, by this time sober, denied it until he was confronted with the video tape evidence. The branch manager dismissed the employee without notice or pay in lieu of notice. The employee brought an action for damages and the employer counter-claimed for damages for damage to its reputation. The employee’s action was dismissed. The Court found that the employer was justified in doing so for several reasons; the employee’s conduct demonstrated lack of integrity, deficient judgment, dishonesty, untrustworthiness and a careless disregard for client and corporate confidentiality; the employee lied to the employer at a time when he was sober and knew what he was saying; this was part of a pattern of similar conduct and the employer was justified in requiring a strict code of conduct by those who are leaders in the company.

In some cases, the Courts have required that there be a nexus or connection between the off-duty conduct and the employment relationship. The conduct must either detrimentally affect the employer’s reputation or cause other employees not to want to work with the individual or render the employee unable to carry out his/her obligations properly or adversely affect the employer’s ability to efficiently manage its business. Conduct that does not really affect the employer’s reputation will not normally justify summary dismissal. For example, in a 1986 Ontario case (Rhodes v. Zehrmart Ltd.) an employee who purchased a narcotic from another employee outside working hours, was found to have not prejudiced the employer or its reputation. Equally, another case held that an assault on a co-worker off company premises did not justify summary dismissal.

If you have been dismissed without notice or pay in lieu of notice for conduct outside of your employment, please contact me for a consultation.