Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

Although traditionally the employee’s physical well-being was the sole criterion by which a “harassment free” environment was analyzed, at the current stage of the law employers are increasingly expected to provide for the employees’ psychological well-being as well. This is especially the case in light of the recent amendments to the Occupational Health and Safety Act (OHSA). In the following paragraphs I provide a brief overview of the law on the subject. I suggest that employers should be more mindful of this ongoing evolution. The reason being: what once was not considered “violence,” “harassment,” or “bullying,” today might be. This shift has implications on the employer’s legal obligations vis-à-vis the injured employee. This is because the employer may be held vicariously liable for actions it did not have to answer in earlier times.

At common law employer liability is based on an implied contractual duty of care. The employer is obligated to provide for the safety of its employees. A number of cases suggest that once harassment reaches a certain level of intensity it will amount to an actionable wrong for which the employer may be held liable. In addition to the traditionally recognized torts of battery and assault, the three areas of the law in which an employee could bring an action against an employer are: the tort of nervous shock; negligence; and, constructive dismissal. The duty applies to management level employees as well as to co-workers. The employer may, therefore, be held liable and be required to compensate for the wrongs of its employed subordinates. Of the two torts, only one relates directly to the psychological suffering of the plaintiff.

A worker is also entitled to benefits for mental stress under the The Workplace Safety and Insurance Act. However, mental stress must be precipitated by “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. The worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.” Jurisprudence from the Workplace Safety Insurance Appeals Tribunal suggests that the circumstances must generally be unexpected, traumatic or represent a potential form of violence.

The Human Rights legislation is more robust and it too provides an avenue through which the employer might be expected to guarantee the psychological safety of those at its employ. According to the federal statute and its provincial counterparts, every employee has the right to “freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.” The employee is entitled to bring a claim against harassment under the Human Rights regime only on one or more of the abovementioned enumerated grounds.

Arguably the most important shift in the law took place at the end of last year with the Occupational Health and Safety Act (OHSA). Under the already enacted but not yet consolidated OHSA, “workplace harassment” is defined broadly and is bound to receive liberal interpretation in the courts. According to the Act “workplace harassment” means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” And “workplace violence” is said to encompass (a) “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker” (b) “an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,” (c) and even “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.” This shift is significant as it allows casting a wider net on activity that would otherwise not be classified as “harassment,” “violence,” or “bullying.” It also calls for the inclusion of a broader, more unpredictable and less definable form of psychological injury.

Under OHSA the employer is expected to prepare a policy dealing with all matters that relate to harassment and discrimination which is to be reviewed at least once a year. The employer is also expected to develop a program in order to implement the policy. Finally, employers are obligated to post the policy in visible places around the workplace. The amended legislation involves an array of additional procedural and administrative nuances that the prudent employer should take a note of.

In sum, “harassment,” “violence,” and “bullying,” are no longer easily definable concepts. As such, it would behoove the employer to be less hasty in brushing off what once could be regarded as mere workplace “disputes” or “humorous conduct.” With the latest shift in the law, employers can expect an increasing number of claims and complaints on issues involving violence and harassment - complaints that would in earlier times have little to no legal bearing at all. To avoid this confusion and to create a safe environment, the employer would be prudent to provide for an elaborate anti-harassment/anti-violence workplace policy. The employer would also do right to reinforce such policies via mandatory educational sessions involving all employees. Failure to take these measures could increase the employer’s risk of liability.

NOTE: This article relied in part on Carla Gonçalves Gouveia’s “From Laissez-faire to Fair Play: Workplace Violence & Psychological Harassment.”

The Employment and Labour Law Students’ Society (“ELLSS”) will be holding its Annual ELLSS Career Fair on the evening of Wednesday, November 18^th.

The Career Fair is the biggest event on the University of Ottawa campus for law students interested in learning more about a career in labour and employment law.  Each year, the ELLSS brings together private and public sector lawyers representing both the management and employee sides. Following a short meet-and-greet, the main part of the event is a moderated panel of 4 speakers practicing in this field who provide information to students on possible career paths, what led them to this area of law, their personal experiences, a general overview of practicing in this field, job possibilities, even topical points of law. The panel discussion is followed by a catered reception attended by representatives from various law firms involved in labour and employment law.

The Career Fair enables law students to learn more about what this exciting area of law has to offer, and to have one-on-one discussions with speakers as well as the many firm representatives who attend the event to meet with students.

This year’s event is sponsored by Sherrard Kuzz LLP, Sack Goldblatt Mitchell LLP, and Emond Harnden LLP.  The panel will be comprised of the following speakers: Lorenzo Lisi (Sherrard Kuzz), Lise Leduc (Sack Goldblatt Mitchell), Raquel Chisholm (Emond Harnden), and Anne Clark-McMunagle (Senior Legal Counsel, Public Service Labour Relations Board).

If you would like to attend the event as a student or firm representative, please RSVP to executive@ellss.ca. Firm guests are welcome (and encouraged) to bring firm promotional materials as there will be space specifically for students to peruse these materials.

When: Wednesday, November 18th 2009 - 4:30pm to 7:30pm

Meet and greet - 4:30pm to 5:00pm

Panel - 5:00pm to 6:15/6:30pm

Reception - 6:15/6:30pm to 7:30pm

Where:  Fauteux Hall Atrium (3rd floor)

“Employment standards legislation” and “class-action” are two phrases not commonly associated with one another - until very recently. An often ignored right to overtime pay united the two, and together the three are becoming a unique force to be reckoned with in Canada.

CIBC is both the first and now the most recent Canadian corporation to be dragged into the foray of class action law suits founded on an employment standards right to overtime pay. In June 2007, CIBC was hit with a $600-million suit from a group of its bank tellers and then, just a few weeks ago, was hit again by a $360-million suit from a group of its financial professionals comprised of stock analysts, investment bankers and financial advisors.

In between the two CIBC actions, KPMG, Scotiabank and CN Rail were presented with class action claims based on unpaid overtime. CIBC has stated it will be vigorously defending both claims but KPMG has reached a settlement with its employees.

The above cases have numerous features in common. The most intriguing common element is the combination of employment standards and class action. The less apparent but equally unique and interesting common feature is the type of employee involved. A brief look at these common features illustrates the novelty and thus the importance of this line of cases.

The underlying issue in these suits is the same: a misunderstanding of employment standards legislation. The CN Rail situation involves allegations of the misapplication of positions as “management” as it relates to eligibility for overtime pay. The KPMG case stemmed from a misconception that salaried employees do not have a right to overtime pay.

The format of the suits is the same: class action. Class action brings to employment standards legislation the power of numbers. With single employment standards claims the settlement amount can be minimal relative to the cost of altering policies, leaving little incentive for change. Not so when numerous claims are made - or where they have the ability to be made - simultaneously.

Most employment law cases are brought by previous employees. The problem current employees face is that neither employment standards legislation nor the common law is seen as conducive to solving issues in ongoing employment relationships. Many of the individuals in these class action overtime cases are still employed and intend to continue to be employed by their employers.

A further issue common to the above cases but unusual to employment standards, is the type of workers involved. The employees claiming their rights are “white-collar”, quasi-professional individuals. Historically, employment standards legislation has been used to create a floor of rights for “blue–collar” workers to maintain basic minimum levels of living.

The novelty of these cases speaks to their importance to employment law and employment lawyers:

• class-action coupled with employment standards legislation;
• current rather than former employees bringing actions; and,
• “white–collar” workers utilizing employment standards legislation.

Although the effect these actions will have on the employment landscape is yet unknown, conjecture is inviting. Some impact seems quite certain, some a little more speculative.

For a glimpse into the heart of an employment standards legislation class-action suit from inception to resolution, see Justice Perells’ reasons for accepting the KPMG settlement. For a cautionary word on class action and employment standards from an employment lawyer, see Daniel A. Lublin’s article on his blog, Toronto Employment Lawyer.

Update: The National Post ran a detailed article on Sunday about the class certification hearing which began on Monday, December 8.

Earlier this year, the Supreme Court of Canada clarified the law on the duty to mitigate damages where employees have been wrongfully (or constructively) dismissed by his or her employer.

In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, a majority of the Court found that Donald Evans, who had served as a Business Agent to the Teamsters Local Union No. 31 for 23 years, failed to fulfill his duty to mitigate his damages stemming from being wrongfully dismissed when he refused to accept an offer of re-employment from Teamsters for the balance of his 24-month notice period.

The circumstances surrounding Evan’s dismissal were quite unusual. He was dismissed on January 2, 2003 after a highly contested Union Executive election. Following his dismissal, he was sent a letter from the Teamsters’ counsel requesting that he return to work to serve out the balance of his notice period. The letter also included that failure to accept this offer of re-employment would constitute cause for termination. A series of negotiations commenced between Evan’s counsel and the Teamster’s counsel, which an included an accusation that a 24-month working notice period upon termination was unreasonable and should be 12 months working notice and 12 months pay in lieu. What is more bizarre is the proposal made by Evans that wanted to a resolution that would allow him to retire and have his wife act as Business Agent for the Teamsters, the position which he was wrongfully terminated. Ultimately, there was no resolution, and Evans commenced a wrongful dismissal suit.

The Case Before the Supreme Court

Although the Yukon Territory Supreme Court ruled that it was unreasonable for Evans to return to work for the Teamsters, the Yukon Court of Appeal overturned the decision. Upon further appeal to the Supreme Court of Canada, Justice Bastarache, writing for the majority, agreed with the Yukon Court of Appeal that Evans failed to mitigate his damages when he refused to accept the offer or re-employment. In his reasoning, he explained that:

“[A]ssuming there are no barriers to re-employment, … requiring an employee to mitigate by taking temporary work with the dismissing employer is consistent with the notion that damages are meant to compensate for lack of notice, and not to penalize the employer for the dismissal itself.”

Justice Bastarache describes some objective criteria for determining barrier to re-employment which included, but were not limited to:

• whether salary was the same;
• whether working relations were the same or were more acrimonious; and
• the nature of the employee’s work history with the employer.

Furthermore, in the analysis of determining whether it is reasonable for an employee to accept re-employment to mitigate his or her damages, Justice Bastarache also emphasizes “subjective” factors, such as the loss of dignity and work atmosphere. Still, it is arguable that Justice Bastarache strongly endorses that objective factors as being the focus of the inquiry.

Moving Forward

Due to the somewhat bizarre set of facts in Evans, it will be interesting to see how this decision (including the objective approach endorsed by the SCC) will be treated by the Courts in various jurisdictions across Canada.

Interestingly, in a wrongful dismissal case heard last month by the Alberta Court of Appeal called Magnan v. Brandt Tractor Ltd., 2008 ABCA 345, the Court distinguished Evans when dealing with the issue of mitigation of damages. In that case, the employer argued that Evans applied, but the Court disagreed and on the basis that the circumstances leading to the employee being constructively dismissed made it unreasonable for him to return to work for the same employer. In particular, the Court pointed out the employee never expressed interest to return to work, unlike Evans where the employee “was willing and had proposed to return to work for at least part of the notice period”. As such, the Court ruled that the employer had not met its onus of demonstrating that the employee had an obligation to mitigate his damages stemming from being wrongfully dismissed. It seems as though the employee’s “willingness”, a purely subjective factor,  was a key factor in the Court coming to its decision on whether it would be reasonable for an employee to return to work for a former employer.

It will be interesting to see if other Courts also focus on the employee’s “willingness” or if an objective approach is preferred to an employee’s circumstances when assessing his or her duty to mitigate damages, as was endorsed by the SCC in Evans.

Earlier this year, the Court of Appeal for Ontario unanimously allowed an appeal for the City of Ottawa in Mulvihill v. The Corporation of the City of Ottawa (Mulvihill v. Ottawa (City)) and set aside an award for Wallace damages that had been awarded by the trial judge.

Background

In the fall of 2004, Ms Mulvihill, who was off work for medical reasons, submitted a complaint of harassment against her supervisor and another employee. The City investigated and dismissed the complaint, however Ms Mulvihill refused to return to work. Rather than proceed with an appeal of the investigation as outlined in the City’s harassment policy, Ms Mulvihill sent an email to the City Manager and the Mayor – the City’s two most senior officials. The City terminated her for insubordination. Ms Mulvihill sued, alleging that she had been wrongfully dismissed.

Trial Court

After discoveries, the City withdrew its just cause defence and paid Ms Mulvihill the equivalent of three month’s salary. The trial judge awarded Ms Mulvihill four-and-a-half month’s compensation in lieu of notice and also awarded Wallace damages of five-and-a-half months on the basis that the dismissal for cause was unwarranted and that the City’s behaviour was callous and insensitive for terminating Ms Mulvihill while she was on sick leave. The City appealed the award of Wallace damages.

Court of Appeal

The Court of Appeal found that because the City had abandoned its position on termination for cause at the outset of the trial, this could not be factored into an award of Wallace damages. The Court found that the City held an honest belief that Ms Mulvihill’s insubordination gave rise to just cause and that recognizing this mistake and correcting it is not conduct that can be said to be unfair or in bad faith. Justice Gillese stated:

“Employers must be free to abandon a position based on cause without fear that abandonment will automatically lead to liability for Wallace damages.”

Justice Gillese also indicated that:

“[T]he mere fact that Ms. Mulvihill was on sick leave at the time of termination does not necessarily mean the dismissal was conducted in an unfair or bad faith manner.”

It was found that the trial judge erred in awarding Wallace damages.

Some thoughts

This decision was issued prior to the Supreme Court’s landmark decision in Honda v. Keays, however the two decisions are consistent. Mulvihill v. Ottawa (City) provides employers with some additional guidelines because it clarifies that certain kinds of actions during the termination process are not per se indicative of bad faith.

On Thursday October 9, 2008, the Supreme Court of Canada delivered its judgment in RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. In this case, the manager of an RBC branch coordinated a mass departure of nearly all investment advisors to a competitor.  None of the departing employees gave RBC any notice, leaving the branch “all but collapsed” (para. 1).

The trial judge awarded huge damages including:

• Compensatory damages for failure to give notice: profits that would have been earned by each of the departing employees during the 2.5 week notice period;
• Punitive damages against all defendants: $5000 each for regular employees, $10,000 each for the branch managers at both RBC and Merrill Lynch, and $250,000 against Merrill Lynch;
• Compensatory damages for unfair competition: $225,000 against all defendants jointly and severally; and
• Compensatory damages for breach of duty of good faith: nearly $1.5 million against the branch manager.

The B.C. Court of Appeal affirmed the damages for failure to give notice, as well as the punitive damages, but overturned the trial judge’s findings on unfair competition and breach of duty of good faith.  The case was appealed to the Supreme Court.

According to the trial judge, the employees remained subject to their duty of fidelity during the notice period, and were in breach of that duty by working for a competitor (para. 15).  The Supreme Court disagreed: the contract of employment ends on termination (para. 19).  In other words, the employees were free to work for Merrill Lynch as soon as they left RBC.

The branch manager failed to perform his duties in good faith, specifically the managerial duty to attempt to retain employees, which is an implied term of his employment contract.  The Court of Appeal overturned the damages for this breach on the basis that they did not meet the proximity test set out in Hadley v. Baxendale. But the Supreme Court said that analysis was erroneous.  Rather than asking whether the breach was foreseeable at the time of the contract, one must ask whether the damages would have been foreseeable at the time of the contract had the parties turned their minds to the possibility of the particular breach (para. 12).  Based on this test, the Court upheld the trial judge’s conclusion.

Some Thoughts

This judgment imposes a fairness obligation on employees, similar to the one already imposed on employers.  While employers may not act in bad faith in the manner of dismissal (see Wallace v. United Grain Growers), employees (such as the branch manager) may not to act in bad faith in the manner of departure.  However, the potential liability varies greatly.  In this case, the branch manager was liable for huge losses in profit; but if the tables were turned, the employer would have been liable for mental distress damages (see Leanna Dejneka’s earlier post in Honda v. Keays).  Loss of profits may greatly exceed damages given to employees for mental distress.   As such, employers acting in bad faith likely have less damages to worry about than employees such as the manager in the RBC case.

Despite this difference, I don’t disagree with this decision.  The branch manager should have known the potential loss he was causing when he orchestrated the departure.  If this disparity in potential liability contributes to the power imbalance between employees and employers, that imbalance is properly dealt with when notice periods are awarded in subsequent cases.  What are your thoughts?

Justice Abella, in dissent, took a different view of the facts, contending that the branch manager was entitled to plan for future employment opportunities and to discuss those opportunities with coworkers (para. 57).  She felt that the majority decision inappropriately created a new quasi-fiduciary duty for a non-fiduciary manager (para. 51).

Do you agree?  Or were the manager’s actions, as the majority contends, a breach of the duty of good faith already owed by employees to employers (para. 22)?

This morning, the Supreme Court of Canada dismissed the leave to appeal application in Western Inventory Service Ltd. v. Darrell Wronko (”Wronko“).  In doing so, the debate in this province as to the proper approach to be taken when an employer seeks to amend an existing employment contract has effectively ended.

Wronko involved an employer who tried to modify a fundamental term of an employment contract with their long-service employee, Darrell Wronko.  Mr. Wronko had rejected the employer’s proposed changes, and so the employer gave him reasonable notice-two years in his case-that the new contract would in fact come into effect.  He consistently rejected the change during this time.  At the end of the period, the employer stated to him that as per the notice they had provided the amended contract was now in place and there would be no job for him if he refused.   Mr. Wronko again rejected it, left, and sued for wrongful dismissal.

Making a unilateral and unwanted change to a fundamental term of an employee’s contract of employment will in most cases constitute constructive dismissal.  Did the employer’s actions in this case guard them against a bona fide employee claim?  Did the end of Mr. Wronko’s employment constitute a resignation, a constructive dismissal, or a termination?  The employer’s giving of “notice” in this case was one way employers have sought to legally and unilaterally change a fundamental term of an existing employment contract without attracting a wrongful or constructive dismissal claim.  The question is, was this notice approach legally valid?

The trial judge seemed to think so.  The issue was whether the employer had the unilateral right to vary a fundamental term of the employment contract upon reasonable notice to the employee.  The trial judge held that the employer did in fact have this right.  In keeping with employment law jurisprudence that seemed to indicate an employer could make unilateral changes to an employment contract as long reasonable notice of the change had been given, Mr. Wronko’s claim was dismissed.  The employer’s actions were proper.  Mr. Wronko had resigned and was not entitled to damages.

The Ontario Court of Appeal did not agree.  It restated the three options that were available to an employee when an employer attempts to unilaterally change a fundamental term of an employment contract-one of them being clear rejection of the new term as Mr. Wronko did in this case.  An employee, as Mr. Wronko did, is entitled to insist on the employer’s adherence to the terms of the contract.  This act triggered an extra step that the employer must take.  The mistake the employer made was that it did not, at the outset, include explicit notice of termination with the two years notice of the change when it was rejected by Mr. Wronko.  What the employer could have and should have done was to “advise [Mr.] Wronko that his refusal to accept the new contract would result in his termination and that re-employment would be offered on the new terms.”  The employer did not do this, and because Mr. Wronko continued working, could be taken to have effectively accepted Mr. Wronko’s position that the terms of the existing contract remained in effect.   Because of their actions it was the employer that ended the employment relationship, not Mr. Wronko.  He was entitled to potential damages of two years as per the termination provision in his old contract.

As noted, the Supreme Court of Canada denied the employer’s leave to appeal.  Wronko now becomes the most recent case of a high authority in this province as to how an employer may make unilateral modifications to fundamental employment contract terms.

In its decision, the Court of Appeal has set out one way for an employer to make planned changes when an employee clearly rejects them.   An employer must take that extra step of notifying their employee that there will be a termination of their existing employment when the notice period they provide expires, and new employment under the altered conditions will begin.  Legally, this makes sense.  It is in accordance with constructive dismissal principles and logically equates reasonable notice of termination of employment with reasonable notice of termination of existing employment conditions.  Instead of ending an employment relationship altogether, the employer is just re-commencing it on different terms.

From another perspective, it may not make sense.  It effectively forces an employer to tell a long-service, loyal employee, or a newer employee who was recently welcomed to the company: ”You don’t accept these changes?  Well, now you’re terminated in x months’ time.”  It is true that changing a fundamental term of employment may have a detrimental effect on the employer-employee relationship no matter what course of action is taken, and that modifications could alternatively be made by ensuring they coincide with fresh “consideration.”  But it is the extra step Wronko upholds which can leave a more negative impression in the mind of an employee.

One might say that this is not a valid concern because it is essentially a human resources issue and not a legal one, and can be tempered through effective management skills and sensitivity.  But for an employer who is attempting to operate and consider bona fide operational business concerns while still maintaining positive and productive relationships with their employees, realistically, is there much of a difference between the two?  Is there any difference in substance between this approach and the one Western Inventory had taken? 

The recent Supreme Court of Canada decision in Honda Canada Inc v. Keays has adopted the position of Justice McLachlin in the 1997 decision of Wallace v. United Grain Growers Ltd.. Instead of increasing the notice period given to an employee when the employer has acted in bad faith during the dismissal, the courts will now compensate by giving actual or “moral damages.”^[1]

In determining the notice period, courts usually look at factors that will likely indicate how long it will take the employee to find new work.  In Honda v. Keays, the Court confirmed that the traditional four Bardal factors are relevant, namely: the character of employment, the length of service, the age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee.  Previously, the Court in Wallace added two other factors: inducement away from previous employment and unfairness or bad faith on the part of the employer during the course of dismissal.

The majority in Honda v. Keays decided that that “true aggravated damages” are not to be compensated by an extension of the notice period but instead by an award that reflects actual damages.  This ultimately extinguishes the second factor added by Wallace. The Court held at paragraph 59:

If the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded  . . . through an award that reflects the actual damages.

Examples that the Court gave at paragraph 59 are as follows:

• Attacking the employee’s reputation by declarations made at the time of dismissal;
• Misrepresentation regarding the reason for the decision;
• Dismissal meant to deprive the employee of a pension benefit or other right.

Departing from the findings in both lower courts, the Supreme Court found that there was no egregious conduct on the part of Honda to justify any award of damages for bad faith.

It remains to be seen how lower courts will respond to this Supreme Court decision on the issue of notice.  In my view, it seems hat the amounts awarded will ultimately be the same, just under a different name.  In other words, if a previous court would have awarded compensation in the form of an increased notice period, the damages would now be a similar quantum because it is compensating for the same wrong.

What are your thoughts? Will this change ultimate sum awarded to employees?

Also of significance is that in finding that there was no egregious conduct on the part of Honda to justify any award of damages for bad faith, the Court commented that Honda should not have been faulted by the trial judge for accepting the advice of its medical experts.

The Court did not make any negative inferences from the fact that the expert was also employed by Honda.  Although the Supreme Court does not comment on this specifically it suggests that unless a conspiracy exists, it is acceptable for employers to use in-house medical professionals to verify employee illnesses.

What are your thoughts? Should the employer be able to rely on experts that it employs?

[1] For an excellent review of the facts of Honda v. Keays see the post by Soloman Lam at The Court.