Pension benefits Are Not Deducted From Reasonable Notice Payment

Posted by Johannes Schenk on February 19th, 2014 — Posted in Employment Law, Labour Law

One of the first questions everyone asks on an employment termination:

employer: what do we have to pay;
employee: what am I entitled to.

Fair enough. Usually the parties can work this out on the basis of standing earnings, benefits and other entitlements. Health and dental plans, club memberships, bonuses, pay increments, parking passes, employer contributions and so on are the easy ones to work out.

At times you also have to work out what to do with other types of payments such as WCB, private disability insurance and pension payouts. These can be tricky to deal with at the time of termination. If a deal is not worked out and you end up litigating the matter the question becomes more complicated as to whether these types of payments are to be deducted from monies paid in lieu of notice.

The case of IBM Canada Limited v. Waterman, holds that pension benefits are not to be deducted from reasonable notice payments. There is no double recovery. On a policy basis this make sense as a lot of employers would otherwise be looking to get out of making pension payments on terminations. In this particular case, the terminated employee was with IBM for 42 years and was offered two months severance pay (an alarmingly low amount of money for those many years of service). The lower Court ended up awarding 20 months of pay.

$75,000 Insult to Injury and Dignity Damages

Posted by Johannes Schenk on February 18th, 2014 — Posted in Employment Law, Human Rights Law, Professional Discipline

Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302 takes injury to dignity damages up to new levels. The case concerns a physician in training that failed to complete his residency program and the following fallout. The complainant was found to have a non-verbal learning disability and ADHD. The university failed to adequately accommodate with dire consequences for the complainant.

The tribunal made a wage loss award of $385,000.00 based on a six year delayed entry into the work force and a $75,000.00 award for insult and injury to dignity:

[102] I find that the particular circumstances of this case are unique and serious. Unlike
Gichuru, Dr. Kelly was unable to complete his training and enter practice as a physician
as a result of the discrimination. He was unable to obtain work in his chosen field and had
to continue to independently study and retain his medical knowledge in the hope of being
reinstated to the Program.

The tribunal’s willingness to entertain higher damage awards is definitely there.

No Building Permits Gets Expensive: Municipal Injunctions

Posted by Johannes Schenk on February 18th, 2014 — Posted in Municipal Law

The case of, 2014 BCSC 249 Delta Corporation v. Stevens, deals with municipal injunctions. Here someone had proceeded to drywall in a crawl space without permits. It begs the question as to who would live in, or rent out a crawl space, but that’s for another day.

The municipality applied for an injunction requesting that construction proceed in compliance with the permitting requirements.

The Court granted the injunction. Municipal injunctions are based on statutory provisions and the Court has very little discretion to deny the injunction. As opposed to a common law injunction, the Court will refuse to grant the injunction where circumstances are “exceptional.” Exceptional circumstance are just that. They are far and few between.

The bottom line is that if you have proceeded to build and spend on construction without arranging permits in advance, count on an expensive litigation process dealing with an injunction application. You are far better off determining if you need permits in the first place than getting after the fact and in the face of an injunction application.

The case also speaks to the power of a building official to deviate from permitting bylaw requirements (not) and how intended uses of a structure are determined.

You’ve Been Wrongfully Dismissed

Posted by Johannes Schenk on February 15th, 2014 — Posted in Employment Law

You had a job. Now you don’t. How are you going to pay your mortgage and support your family? How will you deal with prospective employers so that you can get back onto our feet.

Employers in Canada can terminate your employment. If you have misconducted yourself in a significant way then your employer can let you go without paying you compensation. In the absence of misconduct the employer can let you go if they give you termination notice or they pay you some money.

Here are your first steps:

1. Often the employer will meet with you for an exit interview. Be polite and restrained as you can. Listen and see what the employer has to say and offer. Do not agree to or sign anything. Take notes and ask for some time to consider your position.

2. If there is an employment agreement and company employment policy manual ask for copies before you leave the building or make an arrangement to have it sent to you.

3. Ask about any benefit plan continuation.

3. Collect your personal items. Do not cause any damage. Leave the computer alone and do not log into the system. Do not send out any farewell emails. Do not discuss the situation in any manner on any social media.

5. Let your significant other know what has happened.

6. Call a professional that can give you some advice on what your position is. One to two hours of time can save you months of time and money. The advice will also help you from doing something that will damage your present position.

North Vancouver Property Ordered To Go To Sale

Posted by Johannes Schenk on February 7th, 2014 — Posted in Municipal Law

See this Globe and Mail article.