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RULING ON ENFORCEABILITY OF TERMINATION CLAUSES (the article originally appeared in the Law Times on March 13, 2017, p. 7) The importance of employment in a person’s life enables courts to interpret employment agreements differently from commercial agreements. However, the question of enforceability of a termination clause within an employment agreement has been plaguing our courts with uncertainty for years. In its recent judgment, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, the Ontario Court of Appeal reaffirmed that the enforceability of the termination clause stands and falls on its own wording and not on what an employer may have done on termination, or during the notice period. It reinforced that termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the Employment Standards Act, 2000. In Wood, Fred Deeley Imports was the exclusive Canadian distributor for Harley-Davidson. In April 2007, it hired Julia Wood as a sales and event planner. In 2015, Harley-Davidson Canada entered into an agreement to buy all of the company’s assets. As a result, the company notified Wood that her employment would terminate on August 4, 2015. At the time of dismissal, a 48-year old Wood worked for the company for 8.3 years and received approximately $100,000 in annual compensation. Relying on the termination clause in Wood’s employment agreement, which she signed one day after she commenced her employment, the company provided her with 13 weeks of working notice. During working notice, the company paid her base salary and made all required contributions to her health and dental plans. At the end of working notice, the company paid Wood additional compensation, including a lump sum equivalent to eight weeks’ pay. Nevertheless, Wood sued for a wrongful dismissal, contending that her termination clause was unenforceable for two reasons: it expressly excluded the company’s statutory obligation to contribute to Wood’s benefit plans during the notice period; and it did not clearly satisfy the company’s statutory obligation to pay her severance pay. The action proceeded by way of a summary judgment motion. The motion judge dismissed Wood’s motion and held that both the employment agreement and the termination clause were enforceable. Wood appealed. On appeal, the main issue was whether the termination clause was enforceable. Writing for the Ontario Court of Appeal, Justice John Laskin found the clause to be void and unenforceable. Having acknowledged that a motion judge’s interpretation of a contractual provision is now entitled to deference from an appeal court, he concluded the motion judge made an extricable error of law in holding that the company’s actual contributions to Wood’s benefits plans were material to the interpretation of the termination clause. Laskin resolved that the company’s contributions on termination should have no bearing on whether the termination clause is enforceable. The wording of the clause alone must be looked at to decide whether it contravenes or complies with the ESA. He opined that if employers can be allowed to cure illegal termination clauses by complying with the ESA on termination, then they would have little incentive to draft enforceable termination clauses at the beginning of the employment relationship. In addition, Laskin clarified that the word “pay” in the phrase “two week’s notice of termination or pay in lieu thereof” was ambiguous and contemplated only salary or wages, not to benefits. In considering the “more difficult” question of whether the termination clause also contravened the ESA because it does not satisfy the company’s statutory obligation to pay severance pay, Laskin concluded the clause conflated the company’s separate statutory obligations. The clause required the company to give Wood “two weeks’ notice of termination or pay in lieu therefore for each year of employment.” These payments and notice were “inclusive of [Wood’s] entitlement to notice, pay in lieu of notice and severance pay.” The termination clause allowed the company to fulfil its statutory obligations in one of three ways, with only one of those ways would satisfy the company’s statutory obligation to pay severance pay. First, the company could have given Wood a lump sum payment equal to 18 weeks’ salary (pay equal to 2 weeks’ notice for every completed or partial year of employment – 9 x 2 weeks). Second, the company could have given Wood 18 weeks’ working notice, which would have provided her with more notice than she was entitled to under the ESA, but she would not receive any severance pay. Third, the company could do what it actually did: provide a combination of working notice and a lump sum payment. Depending on how much working notice it gave, Wood may or may not receive the severance pay she was entitled to under the ESA. From Wood’s perspective, when she signed her employment agreement she could not know whether she would receive the severance pay if her employment ended. Because the clause was ambiguous and allowed the company to not pay Wood her statutory severance pay, or to pay her less severance pay, the court of appeal found it to be unenforceable. The court also observed that just because Wood signed her employment agreement one day after she started working, it would not necessarily render it unenforceable for the lack of fresh consideration. It explained, a written employment contract might well be unenforceable if an employer included in it a material term that was not part of the original employment agreement. Because Wood did not argue that the company unilaterally imposed a new term of her employment, the signing of the employment agreement, in her specific case, was a matter of administrative convenience and did not render the agreement unenforceable. Wood is a welcome decision for employees and the employment bar. It serves to incentivize prudent employers to pay close attention and draft enforceable termination clauses. Should the clause not be on onside with the ESA’s notice, benefits and severance pay provisions from the outset of the employment relationship, courts will invariably invalidate them. Please visit http://nclaw.ca/employment-articles/ for additional articles on employment and immigration issues.

Summary judgments in wrongful dismissals

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PUNITIVE DAMAGES IN JUST CAUSE DISMISSALS (the article originally appeared in the Law Times on November 28, 2016, p. 7) A dismissal for just cause is a matter of substance, not form. An unsubstantiated allegation of cause could result in punitive damages for corporate employers. A recent employment case in point is Morison v. Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725, where Justice P.E. Roger ordered the employer to pay $50,000 in punitive damages for breaching its duty of good faith by asserting just cause for tactical and financial gains. The employer’s intentional delay in providing the employee his record of employment and paying amounts owing under the Employment Standards Act, 2000 were factors that underlay the award of punitive damages, causing the judge to send a clear message to employers that they would not be allowed to behave in such a fashion. In Morison, 58-year-old Tom Morison was dismissed for cause after eight years of employment as Ergo-Industrial Seating Systems Inc.’s regional sales manager. On Oct. 22, 2012, Ergo’s president called Morison during which he alluded that his employment may be terminated for cause, but he offered him five months’ notice, which included one month of working notice. Morison refused to accept Ergo’s severance package and argued that allegations of cause were made in bad faith to facilitate a more favourable settlement for Ergo. Ergo retorted that it had a bona fide belief of cause relating to an alleged mismanaged demo chair account, failing to properly market the health-care line of products and difficulties with co-operating positively with his immediate supervisor. However, in the judge’s view, the evidence was clear that Morison was not a good fit with his new supervisor and that the dismissal date was arrived at simply in an effort to accommodate the starting date of the hired replacement. Morison sued for wrongful dismissal. Having initially alleged cause, Ergo subsequently abandoned it. Roger awarded $98,939.32 in wages, calculated on the basis of Morison’s commissions to which he would have been entitled during the 12 months’ notice period. Dealing with moral damages, Roger reminded that they are compensatory in nature, awarded if an employee can prove that the manner of dismissal caused mental distress and are to reflect the actual damages sustained. Morison’s evidence on this cause of action was superficial and lacked particulars. It did not allow the judge to disassociate the evidence of mental distress caused by the bad faith manner of dismissal from the evidence of normal distress and hurt feelings resulting from losing a job. Consequently, he refused to award moral damages. Notably, Roger was not concerned with the lack of medical evidence. His position adds to a growing trend that medical evidence is not mandatory to successfully claim moral damages. What is mandatory is the evidence of mental suffering. Relying on the Federal Court’s decision in Canada (A.G.) v. Robitaille, 2011 FC 1218, Roger observed that in the absence of medical evidence, the employee’s testimony may be sufficient to establish moral damages, as long as there is evidence of such damages and evidence of a causal connection between the moral injury and the wrongful conduct. While medical evidence is not an essential ingredient in a claim for moral damages, its availability could be particularly helpful for employees who seek to recover substantial moral damages. In awarding Morison $50,000 in punitive damages, Roger concluded that Ergo committed an independent actionable wrong, being the breach of its duty of good faith. Not only did Ergo assert cause, when there was no reasonable basis for such an assertion, it delayed in providing Morison his record of employment and significantly delayed in paying amounts owing under the ESA. The judge determined that Ergo knew of Morison’s precarious financial circumstances and that its conduct of delayed payment of statutory amounts was intentional and financially impacted Morison, who had to cash significant amounts of his RRSP and sell his house. Roger further found that Ergo’s allegations of cause were made for tactical and financial gain consideration and with a view to financially benefit it. He was troubled by the lack of any warning and of any investigation on Ergo’s part, prior to Morison’s summary dismissal. Ultimately, Roger found Ergo’s conduct to be reprehensible, exceeding what might be considered as ill advised and, thereby, meriting an award of punitive damages. It might be helpful to keep in mind that the purpose of punitive damages is to punish an offending employer. They are awarded only where compensatory damages are insufficient to accomplish the objectives of retribution, deterrence and denunciation and are given in an amount that is no greater than necessary to rationally accomplish their purpose. Arguably, the distinction between moral and punitive damages could be blurred whenever the same misconduct underlies the employee’s claims for both damages. However, in allocating the punitive damages, the focus is on an employer’s misconduct, not on an employee’s actual loss. Morison illustrates that whenever an employer deploys an allegation of just for tactical and financial gains or with no other reason than to make the dismissed employee’s case more difficult than it should have been, the courts would not hesitate to award substantially higher punitive damages than would otherwise be the case. Abandoning an allegation of cause at any stage, in the course of the action, is grounds for augmented damages and costs. Please visit http://nclaw.ca/employment-articles/ for additional articles on employment and immigration issues.

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EMPLOYER LIABLE FOR TWITTER MISUSE (the article originally appeared in the Law Times on October 3, 2016) Twitter is a public social media platform that allows people to create content and share it at a prodigious rate. Its users’ comments, known as tweets, are particularly effective in spreading their sentiments. Increasingly, companies mine Twitter for information about their services and products. Employers and unions mine it too, albeit for different reasons. A case in point is Toronto Transit Commission and ATU, Local 113, [2016] OLAA No. 267, where Arbitrator Howe found TTC liable for failing to protect its employees from harassment and discrimination on Twitter. This novel decision augments employers’ duty to take reasonable steps to protect its employees form cyber harassment. In TTC, the union filed a grievance challenging TTC’s use of its Twitter account, publically known as @TTChelps. It asserted that TTC’s conduct is contrary to its obligation to provide a workplace that is safe and free of harassment. In support, the union produced tweets, which were critical of the manner in which TTC employees perform their duties and contained derogatory, offensive, abusive, racist, homophobic, sexist and/or threatening language. It suggested that TTC allowed @TTChelps to become a vehicle of harassment and asked the Arbitrator to terminate it. In response, TTC argued that its employees do not have the right to be free from public complaints, because they provide public service that is partially paid for by tax dollars. Consequently, they should be accountable to the public and it is anti-democratic to suggest that the public does not have the right to complain about TTC’s employees. The union retorted that it is inappropriate for TTC to be taking complaints about employees through @TTChelps or discussing what are, in essence, private matters on Twitter. By doing so, TTC is using Twitter as a surrogated public complaint process, thereby circumventing the public complaint process bargained for by the parties. Further, the union successfully argued that whenever TTC uses Twitter for public communication about the conduct of employees in the workplace, that sphere becomes part of the workplace, which in turn triggers TTC’s obligation to control it. Sections 5(1) and 5(2) of the Ontario Human Rights Code give every person a right to freedom from discrimination with respect to employment and harassment in the workplace, because of race, ancestry, place of origin, colour, ethnic origin and, among others, sexual orientation. Adjudicators and the courts have held that an employer is liable not only for its own acts, but also those of its customers, agents, visitors, guests and employees. While it is not possible for an employer to prevent all inappropriate behaviour, it does have control over how it responds to discriminatory or harassing conduct in the workplace, regardless of how it occurred. A number of tweets that the union presented called a TTC employee offensive terms that referred to sexual orientation and race. Having found that TTC’s responses to offensive tweets were inadequate, the Arbitrator suggested that to deter people from sending such tweets, TTC should not only have indicated that it does not condone abusive, profane, derogatory or offensive comments, but should have requested the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. Ultimately, the Arbitrator found that the “TTC has failed to take all reasonable and practical measures to protect” its employees from harassment by members of the public, as required by the Code. In an attempt to have @TTChelps terminated, the union argued that the privacy of TTC employees is invaded by tweets disclosing where they work, their employee numbers and details of complaints about their conduct. Having refused to shut down the TTC’s Twitter account, the Arbitrator explained that a TTC employee’s badge number is not private information, nor is the bus number that a TTC employee is driving or the route number on which it is being driven, because in the context of an employee who works in public providing a public service, there is no reasonable expectation of privacy regarding that information. Eliminating @TTChelps would not preclude information of that type from being posted on social media. The Arbitrator also pointed out that @TTChelps permits the TTC to provide useful information to customers. However, he cautioned that care needs to be taken to ensure that the information provided @TTChelps is accurate and does not include inappropriate editorializing. The Arbitrator ordered TTC to refine its social media policy, which, should include templated responses to tweets, a statement that TTC does not condone abusive, profane, derogatory or offensive comments and, among others, demand that the tweeters immediately delete the offensive tweets or they will be blocked. TTC further expands the notion of workplace into cyberspace and affirms that employers have duties and obligations regarding their use of social media, just as employees so. While TTC was decided in a unionized context, its conclusions are applicable to non-unionized workplaces. Prudent employers, who use Twitter, should have social media policy, which should include the Arbitrator’s suggestions, contain an obligation for an employee to report cyber harassment forthwith and spells out a manner on how to deal with harassing and discriminatory tweets towards their employees. Please visit http://nclaw.ca/employment-articles/ for additional articles on employment and immigration issues.

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RULING REPRIEVE FOR FEDERAL NON-UNIONIZED EMPLOYEES On August 19, 2016, the Canadian Human Rights Tribunal granted a preliminary (and rare) motion to exclude an ex-employer’s “expert” (medical) evidence for lacking impartiality, being unnecessary and prejudicial. The Tribunal also excluded the ex-employer’s doctor’s oral evidence and refused to qualify him as an “expert”. A 40-page ruling stresses the importance of evidence control procedures in the hearings before the Tribunal and highlights its “gatekeeping” role. Read it here: http://nclaw.ca/wp-content/uploads/2016/08/2016-CHRT-14.pdf

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REFUGEE CLAIM FAILS ON ADMISSIBILITY OF ‘NEW’ EVIDENCE (This article originally appeared in the May 20, 2016 issue of The Lawyers Weekly). The law of evidence controls the presentation of facts before courts and tribunals. It is made up of common law concepts, statutory provisions and constitutional principles. Admissibility of “fresh” documentary evidence on appeal before the Refugee Appeal Division of the Immigration and Refugee Board (RAD) is governed by subsection 110(4) of the Immigration and Refugee Protection Act ("IRPA"). In Singh v. Canada (Minister of Citizenship and Immigration), 2016 FCA 96, the Federal Court of Appeal considered, for the first time, the statutory interpretation of that subsection. In allowing the appeal, the FCA concluded that the wording of subsection 110(4) is neither ambiguous nor grants any discretion to the RAD. The fact that evidence corroborates facts, contradicts a decision-maker’s findings or clarifies evidence does not make it “new” evidence. The newness criterion must be assessed against the explicit statutory conditions in subsection 110(4) of IRPA. In Singh, the Refugee Protection Division (RPD) dismissed Parminder Singh’s claim for refugee protection because he had, inter alia, failed to establish his identity. On appeal to the RAD, Parminder Singh attempted to file the additional evidence, namely his diploma that would have corroborated his claim of having studied with Bhupinder Singh. This relationship caused the Indian police to allegedly arrest and torture Parminder Singh in order to obtain information about Bhupinder Singh. Consequently, he fled to Canada. The RAD refused to admit the diploma into evidence on the basis that the Canada Border Services Agency sent a copy of the diploma to Parminder Singh’s former counsel prior to the refugee hearing. Having considered that Parminder Singh did not allege any incompetence or made a complaint against his former counsel, the RAD resolved that he and his counsel had access to the diploma. On a judicial review of the RAD’s decision, the Federal Court deemed it unreasonable for the RAD to have strictly applied the admissibility of new evidence criteria, because the diploma could have been material to demonstrate that the RPD erred in making negative findings with respect to Parminder Singh’s credibility, namely that he had not established that he had attended school with Bhupinder Singh. It also found that it was unreasonable for the RAD to make a complaint against a former lawyer a prerequisite for filing new evidence or expect Parminder Singh to know the procedure for filing such a complaint. Having granted the judicial review, the Federal Court also certified questions of general importance, which paved the way for the minister’s appeal. On appeal, the FCA resolved that the RAD’s interpretation of subsection 110(4) of IRPA is subject to review on a reasonableness standard, in accordance with the presumption that the RAD’s interpretation of its “home” statute, IRPA, is owed deference. Relying on the Supreme Court of Canada’s historic decision in Kanthasamy v. Canada (CIC), 2015 SCC 61, which reframed the test for humanitarian and compassionate applications, the FCA reminded that the presence of a certified question is not determinative of a standard of review, because it is the judgment itself that is ultimately the subject of an appeal and not merely the certified question. Dealing with the RAD’s admissibility of the new documentary evidence, the FCA opined that subsection 110(4) of IRPA is not written in an ambiguous manner and does not grant any discretion to the RAD to disregard the conditions set out therein. Subsection 110(4) restricts evidence that may be presented to “only evidence” that arose after the rejection of the refugee claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented. The FCA upheld the RAD’s conclusion that the diploma was not a new piece of evidence, because Parminder Singh’s counsel had access to it. In support of its conclusion, the FCA observed: “it is settled that an applicant must live with the consequences of the actions of his counsel.” The FCA ultimately concluded that because Parminder Singh had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her, the RAD had no choice but to reject the new evidence, in accordance with subsection 110(4) of IRPA. As a side, in March 2014 the Federal Court adopted a protocol outlining the procedure when a party wishes to make an allegation of professional negligence. It sets out, inter alia, the obligation to send a notice to counsel who is the subject of the allegations and invite him or her to provide a response that could be submitted to the court. Singh clarifies that the RAD is required to assess the admissibility of new documentary evidence against the explicit requirements in subsection 110(4) of IRPA. In the process, the RAD could also be guided, subject to the necessary adaptation, by the implicit criteria the FCA outlined in Raza v. Canada (CIC) [2007] FCA 385, which concerned the statutory interpretation of paragraph 113(a) of IRPA that bears close affinity in both language and spirit to the wording in subsection 110(4) of IRPA. Notably, the requirement concerning the materiality of the new evidence will be assessed in the context of subsection 110(6) of IRPA, for the sole purpose of determining whether the RAD may hold a hearing. Please visit http://nclaw.ca/employment-articles/ for additional articles on employment and immigration issues.

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ENFORCEABILITY OF TERMINATION CLAUSES (Originally appeared in the Law Times on May 16, 2016, p. 7) Written employment contracts are relationship management tools. Their goal is to provide certainty of the terms of employment. If an employment contract fails to conform to the provisions of the Employment Standards Act, 2000, it will be invalidated. A recent case in point is Garreton v. Complete Innovations Inc., 2016 ONSC 1178, where the Divisional Court confirmed that a termination provision’s “potential” violation of the ESA in the future is sufficient to void it. Notably, it clarified that the termination provision’s conformity to the ESA is to be assessed as of the time the employment contract was executed and not at the time of the employee’s dismissal. In Garreton, a 43-year-old Marcela Garreton worked as a trainer for Complete Innovations Inc. On June 7, 2012, she purchased bagels for an internal training session she was to conduct. Another employee, who was not part of the training session, after obtaining permission from her supervisor, sought to take a bagel. Garreton asked her to wait until the attendees had got their food. The employee grabbed a bagel and Garreton grabbed her wrist. The employee then told her to “get the f… off”, took the bagel, and left. The employee immediately reported the incident to CI’s CEO, who, after interviewing Garreton, suspended her employment with pay for two days, describing the incident, in a suspension letter, as “retaliating with physical violence”. Upon her return, CI terminated Garreton’s two-year employment for cause, in part, due to the bagel incident. At trial, CI did not rely on the provisions of Garreton’s written employment contract, which permitted it to dismiss her for cause. Instead, it argued she breached s. 2(1)(3) of the Regulations 228/01, which relieves employers from the obligation to provide notice of termination or termination pay to employees guilty of “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”. The trial judge found CI’s suspension of Garreton’s employment was a form of discipline in response to the bagel incident. Because an employee can be disciplined only once for the same offence, CI’s decision to dismiss Garreton after she served her suspension constituted double jeopardy and amounted to wrongful dismissal. Ultimately, the judge found CI had no cause to dismiss Garreton and awarded her five months’ salary. On appeal, CI successfully argued the trial judge erred in assessing Garreton’s damages on the basis of the common law principles but without concluding whether the termination provision in her employment contract was enforceable. It further asserted that, even if Garreton’s dismissal was without cause, CI is entitled to rely on the termination provision in the employment contract, which limited Garreton’s damages to two weeks’ notice. In response, Garreton submitted that the termination provision offends the ESA and is, therefore, unenforceable, because it potentially violates sections 64 and 65 of the ESA. These sections set out the requirements that must be met for an employee to qualify for severance pay, which has an effect of supplementing the termination pay, if: (a) an employee has five or more years employment; and (b) the company has a payroll of $2.5 million. If these conditions are met, an employee, aside from the termination pay, is entitled to be receive an additional week of wages for each year of employment, for up to a maximum of 26 weeks. The termination provision limited Garreton’s pay in lieu of notice to eight weeks maximum and was inclusive of “all severance pay entitlement, notice of termination or termination pay in lieu thereof….” Garreton argued that despite the fact she has yet to be entitled to severance pay, the termination provision did not conform to the ESA in that it potentially entitles her to less than the employment standards minimum. The crux of Garetton’s argument was a “potential” breach of the severance provisions of the ESA. The argument is not novel, but is vexing. It required Justice Laurence A. Pattillo to reconcile the inconsistent wrongful dismissal jurisprudence on whether the termination provision must conform to the ESA at the time the employment contract was executed or at the time of the employee’s dismissal. Having examined the conflicting jurisprudence, Justice Pattillo dismissed CI’s appeal, stating that: “if the termination provision is not onside with notice provisions and severance provisions (if applicable) of the [ESA] at the outset, then it is void and unenforceable. Potential violation in the future is sufficient.” Garreton, hopefully, settled the state of the law in Ontario on the important point at issue. Justice Pattillo’s apt conclusion finds support in the British Columbia Court of Appeal’s judgment Shore v. Ladner Downs, 1998 CarswellBC 973 (BCCA), which has been cited with approval in obiter in Slepenkova v. Ivanov, 2007 CarswellOnt 5643 aff’d 2009 ONCA 526 (ONCA) and applied in Wright v. The Young and Rubicam Group of Companies, 2011 CarswellONt 10754 (Ont. S.C.J.) Garreton, Wright, Slepenkova and Shore demonstrate that courts will void a termination provision whenever there is a possibility – however remote or academic – that an employment contract provides an employee with fewer entitlements that he or she would receive under the applicable employment standards legislation on dismissal. Employers should ensure termination pay, notice, severance pay and, inter alia, benefits provisions in employment contracts satisfy, at least, the minimum statutory standards at every point in an employment relationship. If such provisions do not conform to the legislative requirements, courts will invariably invalidate them. Please visit http://nclaw.ca/employment-articles/ for additional articles on employment and immigration issues.

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LIFTING A STAY FOR WRONGFUL DISMISSAL DAMAGES (originally published in the Law Times on March 21, 2016) An order for the payment of money in lieu of notice is an order that creates a fixed debt obligation. A wrongfully dismissed employee who obtains a judgment requiring his ex-employer to pay damages may be unable to enforce it until appeal is determined. When a notice of appeal seeking to vary an award of wrongful dismissal damages is filed, it results in an automatic stay of the judgment. To lift a stay is a complex endeavour. A recent employment case in point is Antunes v. Limen Structures, 2016 ONCA 61 ("ONCA"), where the Ontario Court of Appeal was asked to lift a stay in respect of the wrongful dismissal damages. Having taken the contextual factors into account, the ONCA lifted the stay, while criticizing “scorched earth” trial and appeal tactics taken by the ex-employer. In Antunes, John Antunes successfully sued Limen Structures Ltd. for wrongful dismissal. On June 2, 2015, he was awarded $104,228.54, which was equivalent to eight months’ salary for five months of employment, pre-judgment interest of $3,504.25, and $500,000 representing the value of his shares and costs in the amount of $37,500. In June 2015, Limen filed a notice of appeal asking the judgment to be varied by setting aside the award of damages for $500,000. Pursuant to Rule 63.01(1) of the Ontario Rules of Civil Procedure, the effect of the delivery of a notice of appeal is an automatic stay of the judgment pending appeal. In response, Antunes brought a motion, under Rule 63.01(5) of the Rules, to lift the stay in respect of the wrongful dismissal damages, pre-judgment interest, and costs, because those awards were not appealed. In an attempt to defeat the motion, Limen filed a supplementary notice of appeal, challenging the awards that Antunes sought to enforce. Although the supplementary notice of appeal had been filed months after the original notice of appeal had been filed, Rule 61.08 of the Rules entitles an appellant to amend a notice of appeal without leave before the appeal is perfected. At the lifting of a stay motion, Antunes successfully asserted that Limen’s supplementary notice of appeal had no merit and was served solely for the purpose of buttressing its claim to a stay as a way to stave off payment. Antunes had a legitimate concern that any delay in enforcing the judgment would make it more difficult to collect upon it, because Limen’s financial position continued to deteriorate and that it might be insolvent by the time the appeal was argued. The ONCA found Antunes’ fears not to be unreasonable, because there was Limen’s own evidence pointing towards insolvency. The ONCA explained that the stay of execution imposed by Rule 63.01 intended to offer some protection to former employers against payments, which they might not eventually be obligated to make, thus putting it to the uncertainties of recovery. The discretion as to whether an order should be stayed pending appeal must be exercised to promote the overall interests of the administration of justice. This requires the ONCA to consider a number of contextual factors, such as: the grounds of appeal; the parties’ position at trial;what has happened since the trial; the general circumstances of the case, including the trial judge’s reasons; and the probable delay between trial and appeal that cannot be controlled by the parties. The test for lifting a stay involves the balancing of three principal factors: (a) financial hardship to the respondent if the stay is not lifted; (b) the ability of the respondent to repay or provide security for the amount paid; and (c) the merits of appeal. In respect of the first factor, the ONCA was satisfied that Antunes had made out a case for financial hardship, mainly because of his inability to secure permanent employment for 17 months following his dismissal, which caused him to incur extensive debt. In respect of the second factor, the ONCA accepted Antunes’s admission that he does not have the ability to repay any substantial amount collected from Limen. In respect of the third factor, the merits of the appeal, the ONCA found them to be weak, which Limen implicitly acknowledged through its belated amendment of the notice of appeal. It further opined that Limen’s argument that the trial judge erred in law by awarding Antunes eight months’ pay in lieu of notice after a five-month service was not one of law but of the weight, which the trial judge accorded to the Bardal factors. Having found that Antunes demonstrated financial hardship, the ONCA lifted the stay in respect of the award of wrongful dismissal damages, pre-judgment interests, and the costs. In the process, the ONCA criticized Limen for managing its affairs in such a way as to minimize its financial exposure to Antunes. The ONCA acknowledged that businesses can find themselves in financial difficulty for many reasons having nothing to do with the wrongful dismissal claim of a former employee; but in coming to its decision, it took a particular note of the “scorched earth” trial and appeal tactics by Limen. Antunes illustrates that lifting of a stay motions are limited to cases of demonstrable and unusual hardship to ex-employees and where a reasonable measure of protection can be afforded to ex-employers. In most cases, the merits of the appeal will have a bearing upon success of the motion. If an appeal is devoid of merit and is perceived as a tactical manoeuvre to buy time to, for example, dissipate assets, the automatic stay may be lifted and ex-employer may be directed to pay money into court or its ex-employee’s counsel’s trust pending the disposition of the appeal. For additional informative articles, please visit: nclaw.ca

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