Another case upholds CERB as a reduction of wrongful dismissal damages

In Oostlander v Cervus Equipment Corporation, 2022 ABQB 200, Justice Hollins said the following:

CERB
[41] Employment Insurance benefits are generally not deducted because of the employee’s obligation to repay them to the federal government; Crisall v Western Pontiac Buick (1999) Ltd, 2003 ABQB 255 at para.71. While no evidence was led before me any communications between this Plaintiff and the government concerning repayment, I am satisfied that there are sufficient cases having considered this issue to feel comfortable saying that Mr. Oostlander’s EI benefits should not be treated as mitigative income to be deducted from his damages.

[42] Mr. Oostlander also received some money by way of the Canadian Emergency Response Benefit, or CERB payments. These payments have been treated differently by different Canadian courts in the context of wrongful dismissal damages. While most courts have focussed on whether or not the CERB benefit will ultimately be repayable by the plaintiff to the government, in Irotakis v Peninsula Employment Services Ltd, 2021 ONSC 998 at para.21, the CERB benefit was not deducted, not because of any obligation to repay but because it represented only a subsistence-level, ad hoc benefit. I am not convinced that is the case here, nor do I find that reasoning particularly compelling.

[43] Further, I have no evidence whatsoever before me that Mr. Oostlander will be required to repay these CERB benefits. To the extent that other courts were prepared to speculate about repayment obligations based on the general financial circumstances of their respective plaintiffs, I can only say that Mr. Oostlander’s earnings during his notice period might distinguish his case from those involving well-compensated senior executives; Hogan v 1187938 BC Ltd, 2021 BCSC 1021 as cited in Snider v Reotech Construction Ltd, 2021 BCPC 238 at para.61.

[44] Frankly, I prefer not to speculate at all and so, in the absence of any such proven obligation, I am assuming that Mr. Oostlander will retain his CERB benefits and so they are properly deducted from his final damage award.

My comments

Cases from Western Canada seem to support the proposition that CERB payments are deductible while the older cases from Eastern Canada tend to go the other way. I am not aware that this matter has found its way yet to an appeal court.

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Barry B. Fisher LL.B.

Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.

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