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602Boothman v Canada; Clark v Canada, also a decision of the Federal Court. These are cases of a different era. The sums awarded are low.Back to book Page ‣
603Sulz v Attorney-General, The plaintiff was found to have suffered a major depressive disorder which was predicted to be chronic and had a major impact on her enjoyment of life and permanently impacted her ability to work. The damage sum was not disputed in the Court of Appeal apart from the issue of the offset of the pension income.Back to book Page ‣
605Clark v Canada, also a decision of the Federal Court, Based on the plaintiff’s figures, I have concluded $88,000 is a suitable award for lost earnings from September 1987 to September 1990. I have arrived at this figure on the basis that no award should be made for 1987, the final months of which the plaintiff testified she simply “took off.” This was based on the plaintiff’s evidence of her intent to complete 10 years” service.Back to book Page ‣
606City of Calgary plus a pension loss of $68,000.Back to book Page ‣
608Sulz v Attorney-General, a 2006 decision of the BC Supreme Court decision is not a sexual harassment case, but rather a claim based on emotional abuse and harassment.Back to book Page ‣
612City of Calgary the actual sum was $512,000 less discounts of 10% for risk and 2.25% for a present payment of a future income stream.Back to book Page ‣
618Doyle v Zochem, as aboveBack to book Page
619K.T. v Denis Vranich, Elixir and Par adise Lane Developments Hamilton Inc.. The trial judge did award punitive damages in any event. The statute also states costs are to be awarded on a solicitor client basis.Back to book Page
622The history of the case is somewhat complicated. The first trial awarded aggravated damages of $75,000, punitive damages of $25,000 and denied the claim for malicious prosecution. The trial judge then also ordered a Wallace incremental notice of four further months and the costs of the criminal trial. On the first appeal, the Court of  Appeal set aside the dismissal of the malicious prosecution dismissal and the punitive damage award and ordered a retrial of both. The defendant sought and was denied leave only on the malicious prosecution issue. [2011] S.C.C.A. No. 293. On the second trial, the punitive damages were increased to $550,000. The award for damages for malicious prosecution was settled by the parties, liability having been first found at $1 plus $20,000 for costs. This tort claim was later agreed to be a composite of the final punitive damages award, which was ultimately set by the second Court of Appeal hearing at $450,000. Of some note was the dissent at the Court of Appeal of Lauwers J.A. who would have upheld the award of $550,000 punitive damages.Back to book Page
623Higginson v Babine Forest Productson June 29, 2012.Back to book Page ‣
625Most statutes governing such benefits use a similar definition of define “accident” to include willful and intentional conduct. Such is the case in British Columbia, Manitoba, the federal Government Employees Workers Compensation Act and the Merchant Seaman Workers Compensation Act, Alberta, Saskatchewan, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, Labrador & Newfoundland, the Yukon.The legislation of Nanavut does not use a similar definition pattern as the above jurisdictions but does state these words which will likely include intentional conduct.Back to book Page
626Master Laycock of the Court of Queen’s Bench in Alberta in the March 2013 decision of Ashraf v SNC Lavalin ATP Inc.Back to book Page
627It may be noted that on the return of the first appeal, the plaintiff amended the action to plead a constructive dismissal based on the same allegations which was also dismissed. This latter aspect of the decision was set aside by the Court of Appeal as the scheme of the workers’ compensation regime was powerless to deal with such a claim. The constructive dismissal plea was allowed to stand.Back to book Page
628In Ontario, this entitlement has been further refined by a guidance statement known as policy document 15-03-02 which acknowledges that persistent harassment will be covered where the most recent event has led to an acute psychological reaction. The application of the policy is made mandatory for the Appeals Tribunal by section 126(1) of the Act.Back to book Page
630Plesner v British Columbia Hydro and Power before the British Columbia Court of AppealBack to book Page
631by The Workers Compensation Amendment Act 2011, S.B.C. 2012, c.23,Back to book Page
632Ontario Court of Appeal in which an award for the intentional infliction of mental distress was allowed.PrinzoBack to book Page
633as set out in Honda v KeaysBack to book Page
634This principle was stated quite clearly in 2008 by the Nova Scotia Court of Appeal in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission).Back to book Page
636Most workers’ statutory compensatory schemes allow for the benefits and then deny the applicant the right to claim “all rights of action (statutory or otherwise)”, which presumably will be argued to include the right to make a human rights complaint.Back to book Page
637A tribunal decision did refer to a similar plea in Snow v Honda (Joachim) in which the above case was not argued.Back to book Page
638If in time, there would always be a remedy for constructive dismissal.Back to book Page
639The Workplace Safety and Insurance Tribunal in its decision released on May 22, 2014 in case 727/13.Back to book Page
643Supreme Court of Canada in Bazley v CurryBack to book Page
645This is the first step, to ask of “whether there are any precedents which unambiguously determine whether vicarious liability should apply in the circumstances”.Back to book Page
648Manitoba Court of Appeal decision in Robertson v Mani toba Keewatanowi where it saw no material connection to support the vicarious liability submissionBack to book Page
651Gonsalves v The Catholic Church was released by the Court of AppealBack to book Page
652in Simpson v CAC, The trial decision not only allowed for the plaintiff but also added an incremental notice of a further six months based on the then Wallace principle of unfair conduct at the time of termination; (leave to appeal refused)Back to book Page
653As noted by Madam Justice Topolniski in the 2007 Alberta Queen’s Bench decision of Foerderer v Nova, commenting upon such a pre-Bannister case, Brick v Bell, the result in a post-Bannister context would likely have taken a different turnBack to book Page
654The Divisional Court in a recent May 2013 decision of Profes sional Institute of The Public Service of Canada v Communica tion, Energy and Paperworkers Union reviewing an arbitrator’s award under the terms of a collective agreement reversed the arbitral award of suspension and reinstatement and found that termination of employment was the appropriate remedy.Back to book Page
655Tse v Trow, a decision of Cumming J. of the Ontario Court (1995), 14 C.C.E.L. (2d) 132Back to book Page
656The 2013 decision of the Court of Queen’s Bench of Alberta in Clarke v Syncrudeof Mr. Justice Macleod.
This decision was upheld by the Court of Appeal in November of 2014 but this precise issue was not raised on appeal.
Back to book Page
657June 2001 Supreme Court of Canada decision in McKinley2001 S.C.J. No. 40Back to book Page
660June 2001 Supreme Court of Canada decision in McKinley2001 S.C.J. No. 40Back to book Page
661Alleyne v Gateway Co-Operative Homes nc., a 2001 decision of the Ontario Superior CourtBack to book Page
662The Alberta Queen’s Bench 2007 decision of Hodgins v St.John’s Ambulance. The employee’s perception as to whether she is offended by the questioned conduct must be subjected to the requirement of being an objectively reasonable response.Back to book Page
663Gonsalves v Catholic Church Extension Society of Canada, 1998 CanLII 7152 (ON CA), [1998] 164 DLR (4th) 339 at para 15, [1999] 39 CCEL (2d) 104 (Ont CA); Clarke v Syncrude; Alberta Court of Appeal upheld this decision in November of 2014Back to book Page
664The British Columbia Court of Appeal in its December 2004 decision of Brazeau v International Brotherhood of Electrical Workers in a 2-1 decision upheld the trial judgment in which a finding of sexual harassment was made, yet found to be insufficient to justify summary termination for cause.Back to book Page
665A dissenting view was offered by Madam Justice Saunders, which it is submitted, provided a compelling analysis. It speaks to the “heavy responsibility” afforded to the need to provide protection to workers and the significance of the duty.As to the warning issue, the dissenting view was that on these facts, it could serve no rational purpose. Many would agree.Back to book Page
666Such was also the view of Madam Justice Topolniski in Foerderer v Nova, discussed subsequently, in which the court found itself in agreement with the minority decision.Back to book Page
667The famous words of Schroeder J. A. in Port Arthur Shipbuilding [1967] 2 OR 49 did not then carry the day in the Court of Appeal.Back to book Page
669As was stated in Foerderer v Nova Chemicals, a 2007 decision, sometimes there simply is no warning required.Back to book Page
671The Court of Appeal in Gonsalves v The Catholic Church However, in a relative sense some instances of sexual harassment are less serious than others. For less serious instances of sexual harassment, a warning that such misconduct may result in dismissal is required before termination is justified: MacDonald v. Valley Credits Ltd. (1988), 13 A.C.W.S. (3d) 358 (B.C. S.C.). In these less serious situations, for sexual harassment to constitute cause for dismissal it must be made known to the plaintiff by the employer that it is unwelcome and that dismissal will be the consequence.Back to book Page
672Mr. Justice Cumming held in 1995 in Tse v Trow Consulting Engineers Ltd. that “for less serious situations, for sexual harassment to constitute cause for dismissal, it must be made known to the plaintiff by the employer that it is unwelcome and that dismissal will be the consequence”.Back to book Page
673Bannister v GM, Tellier v. Bank of Montreal et al. reflex, (1987) , 17 C.C.E.L. 1 (Ont. D.C.); Himmelman v. King’s-Edgehill School reflex, (1985), 7 C.C.E.L. 16 (N.S. T.D.); William R. Mackie v. Genesco Canada Ltd. (unreported decision of the Ontario Court of Justice, General Division, released March 12, 1991); and Bernard Neigum v. Wilkie Co-operative Association Ltd., [1987] S.J. No. 152(Sask. Q.B.).Back to book Page
674The trial judge found in of Foerderer v Nova that the existence of such a policy was a warning that its transgression could lead to termination.Back to book Page
675This decision was upheld by the Alberta Court of Appeal in November of 2014.Back to book Page
676Ontario of Yates, J. in the 1994 case of Dooley v C.N. Weber(1994) 3 CCEL (2d) 95, 1 L.W.R. 106, 1994 O.J. 172Back to book Page
677This case went to the Court of Appeal by appeal from the employee and a cross-appeal by the employer, both of which were dismissed. The employer’s leave to appeal application was unsuccessful. (1995 SCCA No. 264)Back to book Page
678Wilson J. in Reichard v Kuntz, although obiterBack to book Page
680Norberg v Wynrib, SCC a case which was very far removed from an employment context. Norberg had sued her physician for sexual assault and related claims due to a sexual relationship emanating from one of patient-physician. It was in this context that the Supreme Court spoke of the need for proof of exploitation in examining the question of true consent.Back to book Page
681Simpson v CAC; The plaintiff’s leave application was denied. [2002] S.C.C.A. No. 83. The SS v Huang & Danczkay Property Management Inc. and Bela Danczkay case is clearly out of step with Simpson. It also still is referenced in modern decisions.Back to book Page
683As Carthy J. A. stated in Banister v. General Motors,Back to book Page
684The decision did specifically reference Dooley, but it clearly it overruled it.Back to book Page
686Ontario Superior Court in Cavaliere v Corvex Manufacturing, a 2009 decision of Herold J.Back to book Page
687The proposition that a manager in a romantic relationship with a subordinate “sometimes” as leading to termination for cause likely refers to the context and whether termination is the correct degree of discipline, although this is not clear.Back to book Page
688The Federal Court of Canada in its December 2014 decision of Gelinas v Canada.Back to book Page
689There was no reference to in Simpson v CAC, (leave to appeal refused)in this decision.Back to book Page
691This added an extra dimension due to the deferential standard of review from the initial adjudicative decision.Back to book Page
692The Adjudicator found no evidence that Mr Payne had breached BMO’s anti-harassment policy by, for example, abusing his supervisory position by threatening penalties or offering advantages related to work. Also the characterization of the relationship in the agreed statement of fact as consensual implied, the Adjudicator said, that Mr Payne had not exerted work-related pressures on Ms Carter, and the Adjudicator found no evidence that he had. The fact that he was her supervisor and in a role model position was not determinative.Back to book Page
693This issue was reviewed by Rennie J. on the first judicial review, which stated the law correctly.Back to book Page
694The adjudicator had ordered a four month suspension and reinstatement.Back to book Page
695The Saskatchewan Court of Queen’s Bench in the 2015 decision of Tholl J. in Dillon v MelansonBack to book Page
696The fact that the plaintiff misled his partners about the relationship did, however, give rise to just cause for termination.Back to book Page
698Suggested wording is shown in the last paragraphs of appendix 4.Back to book Page
699Simpson v CAC, (leave to appeal refused)Back to book Page