Employment & Labour ' Top Ten Cases Of 2022

• Jurisdiction: Canada
• Law Firm: Cox & Palmer
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation
• Author: Kaylyn Anthony
• Published date: 12 January 2023

For the past couple of years, our lives and legal system have been pre-occupied by the COVID-19 Pandemic and the many issues it has presented. However, there are many other decisions that have been released during this last year which may have an impact on employers.

Below we have summarized what we believe are the top 10 Canadian employment and labour cases of 2022 that employers should be aware of:

1. Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62.

Record-breaking $50,000 general damages award to complainant following years of workplace sexual harassment.

We previously wrote about the Alberta Human Rights Tribunal's decision in Yaschuk here.

The complainant was dismissed following three-years of service with Emerson Electric's human resources department. During this three-year period, the complainant was subjected to ongoing sexual harassment from her direct supervisor - the human resources manager (the "HR Manager"). A workplace harassment complaint was filed, after which the complainant was terminated for alleged performance issues. A superficial, insufficient investigation was completed, after which the Employer determined that the complaint of harassment was unfounded.

The complainant then filed a human rights complaint with the Alberta Human Rights Tribunal for discrimination on the basis of gender, alleging that she was sexually harassed by the HR Manager. The Tribunal ultimately determined that, contrary to the workplace investigation, the HR Manager's comments and behaviour constituted sexual harassment. The Tribunal categorized Emerson Electric's investigation as dismissive and cavalier and noted many shortcomings in its investigation procedure.

The Tribunal awarded the complainant $50,000 in general damages to compensate for the "profound effect" the discrimination and harassment had on her, as well as Emerson's mishandling of the workplace complaint. She was awarded an additional 11.4 weeks' pay, amounting to $42,750 for lost income. Her claims for various special damages were denied.

2. Richard v Matrix SMW Canada ULC, 2022 NBQB 086.

Wrongful dismissal damages held in trust subject to mitigation.

Mr. Richard was a 15.5-year employee who sought damages for wrongful dismissal after he was terminated without cause. This case was, for the most part, a straight-forward wrongful dismissal decision with nothing out of the ordinary. However, the way in which the New Brunswick Court of Queen's Bench established that Mr. Richard's damages were to be distributed was notable. The Court determined that Mr. Richard was entitled to 18 months' pay in lieu of notice. The judgment, however, was made during this 18-month period, so Mr. Richard was still obligated to mitigate his damages.

In a first of its kind decision in Atlantic Canada the Court ordered pay in lieu of notice be held in trust by Mr. Richard's lawyer, with a proportional payment to be made monthly. This monthly payment was to be made subject to Mr. Richard's duty to mitigate and his reported earnings. Any mitigated income earned was ordered to be deducted from the monthly payment and returned to Mr. Richard's former employer, Matrix.

We felt this decision should be included in our Top 10 because it signals a possible shift in how Atlantic Canadian Courts may treat future damage awards for wrongful dismissal.

3. Render v ThyssenKrupp Elavator (Canada) Limited, 2022 ONCA 310.

Single incident of sexual harassment enough for termination of employment.

The appellant was a 30-year employee who held a managerial role at time of termination. His dismissal followed a single incident that occurred in the workplace where he slapped a female co-worker on the buttocks. The trial judge found that the co-worker had made either a verbal or non-verbal joke about the appellant's height, he said that he then crouched down while about 12-inches from her and said "this is how short I am when I take my boots off". He then went down on his knees, crouching in front of her with his face close to her breasts for 2-3 seconds, at which point everyone, including the co-worker, was laughing. As he was getting up from his knees, he made a sweeping gesture with his right hand, intending to tap his co-worker on the hip and said, "get outta here", however, he said that he either lost his balance or she turned, with the result being that his hand touched her buttocks. When this happened, he said "good game". At trial, the dismissal was upheld.

The Ontario Court of Appeal found that the trial judge did not err in his approach or analysis and that he considered and weighed all of the relevant factors in finding that there was just cause for dismissal. It held that this was a most unfortunate situation that arose out of an overly familiar and, as a result, inappropriate workplace atmosphere that was allowed to get out of hand - a workplace atmosphere that can no longer be tolerated.

However, the Court of Appeal held that the appellant's conduct did not rise to the level of wilful misconduct required to disentitle him to his statutory Employment Standards Act entitlements and that the trial judge erred in failing to award him same. The Court noted that while the trial judge found that the touching was not accidental, there was no finding that the conduct was preplanned. The test for "wilful" misconduct was previously interpreted, and cited by the Court, as involving an assessment of subjective intent, almost akin to a special intent in criminal law. Therefore, as the slapping was not preplanned, it was not wilful in the sense required under the ESA and subsequently, the appellant...