Awards of Aggravated and Punitive Damages in Wrongful Dismissal Claims

Article by Rose Keith, BA JD, Vancouver BC Employment Law Lawyer RoseKeith.bc.ca

Photo of Supreme Court of BC building in Vancouver, BC - with  employment law lawyer Rose keith

Typically a wrongful dismissal case will concern first of all whether there was just cause for the dismissal and if not then the period of reasonable notice.  Generally a further claim will be made in the pleadings of the dismissed employee for aggravated and/or punitive damages.  These claims are made as a matter of course by many of us, rather than after a careful consideration of whether in fact there is any merit to the claim.  More often than not, the claim is not really pursued or pursued only in a very peripheral manner.  The focus of counsel generally is on what the appropriate period of notice should be. Development of a theme and the evidence to support it that would result in an award of aggravated or punitive damages is generally not undertaken.  In this article we will consider three decisions in which aggravated and punitive damages were carefully pursued and the lessons that those cases provide in terms of preparing and presenting your case. 

An action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the employment relationship when just cause to do so does not exist.  If the employer fails to provide reasonable notice of the termination, the employee brings an action alleging breach of the implied term. The general rule is that the damages that are available in such a case are limited to the loss suffered as a result of the employer’s failure to give proper notice.  Damages are not awarded for the actual loss of the job and/or the pain and distress that may have been suffered as a consequence of being terminated.  Either party to an employment contract is free to terminate the contract at any time as long as they provide reasonable notice, and therefore the only damages that generally arise on termination of the contract are related to the failure to provide that reasonable notice.   (Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085).  Damages for wrongful dismissal are not increased because of the employee’s wounded feelings following the dismissal or because of the prejudicial effect of the termination on the employee’:s reputation and his chances of finding other employment. (Peso Silver Mines Ltd. (N.P.L.) v. Cropper, [1966] S.C.R. 673) 

The importance of work in a person’s life has long been recognized by our Courts.  This recognition is the foundation for the jurisprudence concerning employer conduct at the time of termination.  In the 1987 decision of Reference Re. Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313, Dickson C. noted at p. 368: 

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

The vulnerability of an employee at the time of termination was recognized in Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701, where Iacobucci J. said at para. 95: 

The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection.  In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal.  In Machtinger, Supra, it was noted that the manner in which employment can be terminated is equally important to an individual’s identity as the work itself (at p. 1002). By way of expanding upon this statement, I note that the loss of one’s job is always a traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating. In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal.

Punitive damage awards are meant to punish a wrongdoer for unjustifiable and egregious conduct. There are entirely different than compensatory damages which are designed to compensate the plaintiff for their losses. The leading case on punitive damages is Whiten v. Pilot Insurance 2002 SCC 18.  In that decision, the Supreme Court of Canada outlined the three general objectives of punitive damages:

  1. Punishment (or retribution);
  2. Deterrence to the wrongdoer and others; and
  3. Denunciation, or how the judge or jury expresses their outrage to the conduct.

The foundation for an award of punitive damages was explained in Keays v. Honda 2008 SCC 39.  The factual background behind he Keays decision was that the plaintiff began his employment with Honda in 1986. He began receiving long term disability benefits in 1996 and was diagnosed with Chronic Fatigue Syndrome in 1997.  His disability benefits were discontinued after a work capacity evaluation in 1998.  When he returned to work Keays was required by Honda to provide a medical note for every absence.  This was different than the way that Honda treated other employees who were suffering from "mainstream" illnesses.  Keays continued to be sporadically absent from work so Honda hired a doctor to assess him.  In response Keays hired legal counsel who asked for clarification of the reasons for hiring the doctor and unilaterally cancelled the appointment.  Honda then instituted its absence related discipline policy. When Keays continued to refuse to meet with the hired doctor until Honda had clarified the reasons for the meeting, Honda terminated his employment for insubordination.

At trial, the judge found that Keays’ termination was a disproportionate response to his alleged insubordination and was therefore wrongful dismissal. 15 months notice was awarded as well as a 9 month extension of the notice period as a Wallace bump up as a result of Honda’s bad faith actions in the manner of dismissal.  In addition, the trial judge awarded $500,000 in punitive damages as a result of what he characterized as being Honda’s discriminatory and harassing treatment of Keays in the course of his employment.  This award represented the highest punitive damages award in an employment context at that time in Canada.

The Court of Appeal upheld the 15 month notice period as well as the 9 month Wallace bump up.  They also upheld the principle behind the award of punitive damages but reduced the award to $100,000 on the basis that some of the trial judge’s findings of fact were not supported by the evidence and also on the principle of proportionality.

ARTICLE TO BE CONTINUED

Rose Keith, over 20 years experience in personal injury and employment law, is based in downtown Vancouver, BC

The above article was
Prepared and Presented by:
Rose Keith, Trial Lawyer
Rose Keith Law Corporation
1486 West Hastings Street
Vancouver, BC V6G 3J6
Phone:  604-669-2126
Email:  rkeith@rosekeith.bc.ca
Web site: rosekeith.bc.ca



See also BC Employment Standards Act .bclaws.ca/EPLibraries/bclaws_new/ document/ID/freeside/00_96113_01 .bclaws.ca/EPLibraries/bclaws_new/ document/ID/freeside/00_96113_01





BusinessMatrix.com graphic includes photos of business lawyers  licensed to practice in  BC, Ontario Canada, Hamburg Germany, California, and the Philippines - experienced in  business incorporation,  shareholder disputes, intellectual property  law   and issues of buying and selling a business, as well as commercial leases and employment law Jenifer Chilcott, Technology Transactions, Corporate-Commercial Lawyer in Victoria BC Sorel Leinburd, business intellecutal property info technology lawyer Vancouver  Canada Bruce Redekop, Business ventures  lawyer  / registered trademarks agent Charlotte Salomon, Business lawyer commercial property transactions, incorporation, succession planning, Victoria  BC Patrick Bion, Business-Commercial lawyer  Victoria BC Florence Wong,, lawyer for  Corporate/Commercial Law, Real Estate & Leases.,   wills & estate work. speaks fluent Cantonese & Mandarin. , Vancouver  BC Jeffrey Lowe,  Business-Immigration lawyer 25 years experience with 65 countries immgrants coming to Canada  CANADAVISALAW.com Mona Chan, immigration-business-commercial leases, realestate lawyer, fluent in Mandarin & Cantonese, Vancouver  Canada Bruce Lemer, consumer commercial contracts class actions including product liablity - lawyer  known  for his  Canada Red Cross tainted blood class action  for hepatitis patients Rosemary Smyth, MBA, Certified Executive Coach (CEC) coaches  professionals in investment & finance sector. James Hutchison, Business Intellectual Property & Technology Transactions Lawyer Jennifer Chilcott, Business Technoogy Information Technology transactions lawyer , Victoria BC Canada Frank Baily, business lawyer in Metrotown for business-commercial law, shareholder disputes,  executive wrongful dismissals Jeety Bhalla, CA CPA Senior Accountant at Chan & Associates in Victoria BC  Joy Ren, Business-commercial -immigration lawyer fluent in Mandarin & English  with  Boughton.ca  immigration  team Rose Keith,  wrongful dismissal employment law article Bruce Redekop, busines ventures development lawyer in Vancouver BC Canada Revenue Agency complex tax evasion charges, defense lawyer Michael Mark, in Victoria BC Monika Sievers-Redekop, LLM is a Hamburg, DE lawyer and a BC Canada Immigration  Lawyer, click to her German language  website Vancouver Canada Business Immigration Lawyers Team Offer: Urdu  ·  Hindi  आव्रजन वकील & Chinese  Mandarin language services Vincente Asuncion, BC & Philippines lawyer , serves in Spanish, Tagalog & English -  Business - Immigration & Private International Law. clients Sandra Banister, QC - over 27 years experience with wrongful dismissal and employment / labor law  Jennifer A. Lee, registered trademark and patents lawyer, over 10 years in tintellectual property  law , in areas e.g. gas / oil  / technology GTA Canada Immigration / business immigration lawyers e.g. Jeremiah Eastman

BusinessMatrix.com is a cooperative venture of a group of business lawyers, business consultants and accountants, with backgrounds in:  business ventures development, business immigration, trademarks, patents, copyright, product liability, professional negligence, shareholder mediation, employment & labour law, and defense of complex tax evasion charges. etc.

This site has been developed with the micro-business, small business, entrepreneur, and business ventures development person in mind. The professionals referenced have an average of over 25 years of experience in working with business startups and development.  They range in backgrounds from law (barristers & solicitors), accounting (e.g. CA & CGA ), administration ( MBAs & executive coaches) , graphic design and information technology (e.g. librarians, library technicians, cartographers).

Copyright © 2012 all content and images provided by contributing writers, graphics illustrators, designers, cartographers photographers, lawyers, accountants, business administration consultants, etc.
Vancouver, BC, Canada

BusinessMatrix.com logo click to home page

NB. special thanks is given to Ms. Cat Wong, in San Francisco for contributing the graphic of King Midas used in our first main graphic collage. Ms. Wong is an experienced children's illustrator, see claraandclarencebear.com and currently developing Apple and Microsoft e-book apps for children.  The intent of the Midas graphic is to bring some humor to this site, as the professionals work with so many entrepreneurs with dreams and fantasies that need to be translated into functional business operation plans.

BusinessMatrix.com logo click to home page

Business Professional Services
BusinessMatrix.com

  • Info Sources
  • Accounting
  • Business Immigration Lawyers:  Canada  |  U.S.A.  |  Vancouver · Victoria · Toronto G.T.A. · California
Lowe and Company 20 years experience as Canada business immigration lawyers, notary & immigration consultants with clients from over 65 countries
  • Business Planning
    • Branding & Marketing: Trademarks, Patents, Copyright, Trade Secrets, Industrial Designs, Licensing
    • Incorporation / Startups: Victoria  ·  Vancouver
    • Micro / Small / Business Ventures Planning
    • Shareholder Disputes: Mediation vs Litigation
    • Buy - Sell a business
    • Cross border business contracts
    • What is "Business Immigration" ?
      • Intra-Company Work Visas
      • Canada vs USA programs
    • Liability Insurance: Consumer / Commercial / Contract Class Actions e.g. Product liability, Professional Liability Mass Torts
  • Commercial Property Leases
  • Commercial Real Estate Purchase
  • Debt Collection
    • Small Claims Court for the micro-business-entrepreneurs
    • Bankruptcy
  • Culture & Languages
    • Globalization and Communications
    • ESL and English vs Koin Greek
    • Beijing Language Institute
  • Criminal Defense Lawyers
    • What is "White Collar Crime?"
    • Private Investigators
    • Computer Forensics
    • Federal Government Revenue Tax Evasion Charges
  • Executive Coaching & Development
  • Directors Responsibilities & Liabilities
    • Directors Business Insurance
  • Human Resources & Employment Law
    Rose Keith, employment lawyer, Vancouver downtown, BC, author of this articleFrank Baily,40 years experience as llawyer serving Burnaby & Metro Vancouver re employment and business lawMichael Mark, wrongful dismissal lawyer in Victoria BC, with McConnan Bion O'Connor Peterson, Law Corp. Bari Marlatt, employment law services with Hutchison Oss-Cech Marlatt law firm in downtown Victoria, BC
  • Intellectual Property & Information Technology
    • IP-IT lawyers
    • What is Intellectual Capital?
  • Marketing & Graphic Design, Illustration, Graphic Novels
  • NGO's Non-Government-Organizations
    • Think Tanks
  • Private Investigations: Private Investigators for Business, Truth Verification and Polygraphic Technology
  • Succession Planning: Wills etc.
  • Transportation

Notes in Chinese re Canada Business Immigration Options

愿意投资或管理企业的商家有多项移民选择。BC省和加拿大其他省份都有各自的省提名计划,可允许商家在省内做投资,取得工作签证,并有资格申请移民。

加拿大联邦政府正在重整现有的被动性投资移民计划,提议2013年初开始实行新的企业家投资移民计划。

我们可以评估您的背景和商务目标,然后协助您选择最合适的商业移民选项。从1990年至今我们曾帮助不同商家移民加拿大,我们可以指导您走过申请过程的每一步。 [quote from CanadaVisaLaw.com/ch 2013.10.02 ]