Canadian Employment Law Today

Canadian HR Reporter, 2021 severance pay if he did not accept the full severance offer. The letter was also deficient in failing to advise that Russell's benefits would continue for the required statutory period or that he would be paid vacation pay over the statutory notice period (it said that he would receive vacation pay accrued to the date of termination). The court was satisfied that Russell ex - perienced mental distress as a result of The Brick's "lack of transparency," despite the absence of objective third-party medical evidence. As a result of what was acknowl- edged to be The Brick's "inadvertence," the court awarded Russell $25,000 in moral damages, in addition to the reasonable no- tice award. Takeaways for employers Litigation, and a trial, are sometimes unavoid- able after an employment relationship ends. Moral and punitive damages in relation to an employment relationship will not, for most employers, cause serious financial hardship. It is, however, an embarrassing public record of a dim view taken of an employer's conduct at the time of termination. Given what ap - pears to be an increasing willingness by judges to remedy and punish abuses of power in an employment relationship, employers are well advised to take steps to mitigate the risk of moral and punitive damages. At a minimum, employers should do the following: • Be civil, respectful, courteous, and frank at the time of termination. As one lawyer I know frequently says, terminate as though you were dismissing your best friend. • Do not take positions of just cause without an appropriate foundation. Positions of cause, taken for strategic purposes to obtain leverage or lengthen the litigation process, are likely to attract punitive damages. • Avoid counterclaiming against an em - ployee solely for strategic purposes. • Ensure that statutory amounts are paid, even if just cause is alleged, unless there is clear evidence that the statutory excep- tions for termination and severance pay are met. • Take care in drafting termination letters to ensure that they reflect compliance with employment standards legislation. Ensure transparency in disclosing the employee's entitlements. Above all, employers should be mind - ful of the vulnerability of employees at the time of termination, regardless of the break- down of personal relationships and the ob- jectionable behaviour of an employee. It seems trite to say, but taking the high road and acting with empathy are more impor- tant than ever. For more information, see: • Acumen Law Corporation v. Ojanen, 2019 BCSC 1352 (B.C. S.C.). • Fobert v. Medical Cannabis Resource Centre Inc., 2020 BCSC 2043 (B.C. S.C.). • Chen v. MagIndustries Corp., 2021 ONSCE 2377 (Ont. S.C.J.). • Ruston v. Keddco MFG. (2011) Ltd., 2019 ONCA 125 (Ont. C.A.). • Humphrey v. Mené, 2021 ONSC 2539 (Ont. S.C.J.). • Russell v. The Brick Warehouse LP, 2021 ONSC 4822 (Ont. S.C.J.). December 1, 2021 | Canadian Employment Law Today CREDIT: RA2STUDIO iSTOCK ABOUT THE AUTHOR Rishi Bandhu Rishi Bandhu is an employment lawyer in Oakville, Ont., advising employers and employees on all aspects of employment and labour law. He can be reached at (905) 849-0025 or rishi@blpc.ca.

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