In Pohl v Hudson’s Bay Company (2022 ONSC 5230) Justice Centa awarded at 53 year old Sales Manager with 28 years service a notice period of 24 months. No surprise there.
However, the Judge also awarded $45,000 for moral damages and $10,000 for punitive damages because:
- The Plaintiff was walked out the door after his termination.
- HBC tried, unsuccessfully, to trick the Plaintiff into accepting a lower rated position which would have effectively eliminated his common law entitlement to reasonable notice.
- They did not pay his severance pay within 7 days as required by the ESA but rather paid it out on salary continuation for two months before finally paying out the balance as a lump sum. This was not only used to justify moral damages but also the punitive damage award.
- Instead of issuing the ROE immediately they delayed it until the end of the salary continuation period and then made several mistakes in the form.
My Comments on Each of The Judges’ Reasons.
- In my experience, this is a pretty common practice.
- This seems to be a practice which really pissed off the judge.
- It seems that the motivation behind HBC may have been to maximize their entitlement to the CEWS subsidy, which was payable on salary continuation but not on a lump sum severance payment. On the other hand, because of Order 8 under the EI Act, the receipt of a lump sum of severance pay would not affect the Plaintiffs’ immediate entitlement to EI whereas if he received salary continuation he would not have been entitled to EI for the same period. Ironically each side was probably trying to maximize their entitlement to COVID related measures.
- My understanding of the ROE is that it is only to be issued upon the cessation of payroll payments so since the Plaintiff was being paid by way of salary continuation, the ROE would only be required once the payroll payments ceased.
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- Employer wacked with $55,000 of moral and punitive damages - November 28, 2022