Stephen Bernofsky

The plaintiff brought a motion for summary judgment for constructive dismissal after being temporarily laid off due to the COVID-19 pandemic.

The court found that the plaintiff was an employee from the start of his tenure, despite initially being paid through a personal corporation.

The court also held that the employment contract signed mid-employment was void for lack of consideration.

The employer had no contractual right to lay off the plaintiff, resulting in a constructive dismissal.

The court awarded 15 months' reasonable notice and $25,000 in punitive damages due to the employer's failure to pay statutory minimums.

This decision addresses the calculation of damages for wrongful dismissal and the award of costs following a successful summary judgment motion.

The court determined the final damages amount, excluding cell phone and internet costs from the notice period compensation.

It also awarded costs on a partial indemnity basis to the date of the Rule 49 offer and substantial indemnity thereafter, finding the plaintiff's offer more favourable than the judgment.

The plaintiff, a senior executive, was terminated without cause after nearly four years of employment.

He brought a summary judgment motion for wrongful dismissal damages.

The court found the termination clause in his employment contract unenforceable because it had the potential to provide less than the minimum termination and severance pay required under the Canada Labour Code.

The court awarded eight months' pay in lieu of notice, finding the plaintiff held a significant managerial role.

The court also awarded damages for a discretionary bonus for 2017 and the notice period, as it was an integral part of his compensation, but dismissed claims for unused vacation and statutory holiday pay.

The applicant was terminated without cause and sought a determination of his rights under his employment contract.

The contract stipulated a fixed notice period but was silent on mitigation.

The court held that the applicant had no duty to mitigate his damages, as the fixed notice provision displaced the common law.

Applying the contra proferentem rule, the court resolved an ambiguity in the termination clause to award 11 months' severance.

The court also ordered the severance to be paid as a lump sum and awarded the applicant a project bonus of $177,500 based on the agreed internal rate of return.

The plaintiff, Rishi Drepaul, was terminated without cause from his employment as a Processing Improvements Coordinator.

He was provided 9 weeks' notice, which he argued was insufficient.

On a motion for summary judgment, the court determined the appropriate notice period, the total remuneration including benefits, and the deductibility of Employment Insurance (EI) benefits.

The court found Drepaul was wrongfully dismissed and entitled to 11 months' salary in lieu of notice, with benefits estimated at 10% of his salary, and confirmed that EI benefits are not deductible from wrongful dismissal damages.

The applicant in a human rights complaint alleging disability discrimination requested an order to close the hearing proceedings and proceed with written closing submissions.

The Tribunal denied the request, finding that to ensure a fair hearing without prejudice to the applicant, the respondent should be allowed to recall a witness to provide critical evidence regarding interactions with the applicant.

The hearing was ordered to continue for one additional day.

The applicant alleged discrimination in employment on the basis of disability after his employer questioned him about a vacation request.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

Finding that the employer's questioning was a routine managerial inquiry with no adverse consequences, and that there was no evidence linking the questioning to the applicant's disability, the Tribunal dismissed the application for having no reasonable prospect of success.

The respondents brought a request for an order during proceedings to remove the personal respondents from the human rights application.

The Tribunal applied the factors from Persaud and found that the corporate respondent accepted responsibility for the actions of the personal respondents, who were acting within the scope of their employment.

Finding no prejudice to the applicant and no compelling reason to keep the individuals as parties, the Tribunal granted the request and removed the personal respondents.

The applicant requested an adjournment of the hearing to allow time for an allergy specialist appointment to confirm her alleged shellfish allergy, which is central to her claim of discrimination on the basis of disability.

The respondent opposed the request.

The Tribunal granted the adjournment, finding that medical confirmation of the allergy would narrow the issues and expedite the matter without prejudicing the respondent.

Following a wrongful dismissal action in which the plaintiff claimed approximately $100,000 in damages, the defendant sought costs of roughly $99,163 on a full indemnity basis or $61,425 on a partial indemnity basis.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and rejected the request for full indemnity costs.

The court emphasized proportionality between the amount in dispute and the costs reasonably contemplated in such an action.

Finding the hours and rates claimed excessive given that the primary compensatory claim was approximately $32,000, the court reduced the award substantially.

Costs were fixed at $25,000 inclusive of HST.

The plaintiff commenced a wrongful dismissal action alleging he had been terminated without cause and seeking damages in lieu of notice, aggravated damages, and punitive damages.

The employer asserted just cause based on cumulative misconduct, including insubordination, performance deficiencies, refusal to follow safety instructions, and conduct undermining workplace relationships.

The court applied the contextual approach to just cause from McKinley v. BC Tel and considered whether the cumulative incidents demonstrated misconduct incompatible with the employment relationship.

It found that the employer had issued numerous warnings and that the employee’s conduct, including refusal to comply with safety directives and actions damaging workplace relations, justified dismissal.

The court concluded that the employer had just cause to terminate and dismissed the action.

The applicant filed a Request for an Order During Proceedings (RFOP) seeking to prospectively extend the one-year limitation period, amend her application to add new reprisal allegations, and obtain an interim remedy to establish ground rules for the respondents' conduct.

The Tribunal held that it cannot prospectively extend the limitation period under section 34 of the Human Rights Code, as good faith delay must be assessed on actual facts.

The request to amend was deferred because the main application was already deferred pending another matter.

Finally, the Tribunal denied the interim remedy, finding the applicant failed to meet the significant onus under Rule 23.2 to show that the balance of harm favoured the remedy or that it was necessary to ensure a complete remedy at the end of the hearing.

The applicant filed a human rights application alleging discrimination in employment and membership in a vocational association based on disability and sex, as well as reprisal.

The Tribunal considered whether to defer this application pending the determination of an earlier 2009 application involving similar facts and issues, notably concerning alleged sexual harassment by a personal respondent and a failure to investigate.

Finding significant overlap between the two matters, the Tribunal concluded that deferral was the most fair, just, and expeditious manner of proceeding to avoid inconsistent decisions and prejudice to the respondents.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability and sex, approximately one year after her dismissal.

The respondents requested the application be dismissed for delay.

The Tribunal found the application was filed outside the one-year limitation period under section 34(1) of the Human Rights Code.

The applicant failed to provide submissions or establish a good faith explanation for the delay under section 34(2).

The application was dismissed.

The applicant filed a human rights application alleging discrimination in employment and subsequently requested to amend the application to attach numerous documents.

The respondents opposed the request.

The Tribunal denied the request to amend, noting that an amendment is for asserting new allegations of discrimination, not for introducing documentary evidence, and that the applicant failed to set out the material facts of any new allegations.

The denial was without prejudice to the applicant's right to bring a compliant request.

The parties made a joint request to remove the individual respondent as a party to the human rights application.

The Tribunal granted the request and amended the style of cause accordingly.

The applicant alleged that the respondents reprised against him contrary to section 8 of the Human Rights Code by terminating his employment after he refused to fire other employees without cause to avoid paying severance.

The respondents requested a summary hearing to dismiss the application for delay and lack of reasonable prospect of success.

The Tribunal found that the right not to be terminated without cause or severance pay is not a right protected under the Code.

Therefore, the applicant had no reasonable prospect of success in proving reprisal for refusing to infringe others' rights under the Code.

The application was dismissed.

The applicant filed an application alleging discrimination, harassment, and reprisal on the basis of disability after his employment was terminated three weeks into a contract.

The Tribunal convened a summary hearing to determine if the application had a reasonable prospect of success.

The applicant acknowledged he had no evidence linking his alleged mistreatment or termination to his hearing disability or any other protected ground.

Furthermore, his reprisal claim was based on the employer allegedly ignoring his continuous requests for training and system access, rather than retaliation for claiming rights under the Code.

The Tribunal dismissed the application as having no reasonable prospect of success.

The applicant alleged discrimination on the basis of disability after being laid off upon his return from an 18-month medical leave.

The employer argued the layoff was part of a genuine company-wide downsizing due to the loss of major clients.

The Tribunal found no direct discrimination, as the layoff was justified by economic circumstances.

While the employer's need for 'continuity' adversely affected the applicant due to his lengthy absence, the Tribunal held that accommodating him through a re-orientation period or displacing other employees would have caused undue hardship given the severe business downturn.

The application was dismissed.

The applicant, a student with lupus and a hand tremor, was dismissed from a dental hygiene program due to academic and clinical failures.

She alleged the respondent failed to accommodate her disability and later discriminated against her by refusing readmission.

The Tribunal found that while the substantive duty to accommodate was not breached, the respondent violated the procedural duty by failing to initiate an individualized assessment of her accommodation needs after being informed of her disability.

The claim regarding readmission was dismissed as the applicant failed to complete the application process.

The respondent was ordered to pay $7,500 in compensation and develop an accommodation policy.