The narrative review of statutory remedies appears here.
| Case | Issue | Award |
| Reconsideration | ||
| Rainbow Concrete Industries Limited v Trevor Grace
OLRB Sept 2020 |
Reconsideration application is not limited to original award. It is a hearing de novo.
The Board is not restricted to the amounts ordered by the ESO and subsections 116(6) and (7) |
|
| ESA Section 119(13) of ESA provides that the decisions of the Board are final.
Subsection 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, and the Board’s Rules of Procedure give the Board the power to reconsider any of its decisions when it considers it advisable to do so. However, in order to provide parties before the Board with a substantial degree of certainty, the Board normally declines to do so. Thus, the Board will not permit a party to attempt to reargue its case under the guise of a request for reconsideration. |
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| Rainbow Concrete Industries Limited v Trevor Grace
OLRB Sept 2020
|
The Board will not normally reconsider a decision unless:
A party wishes to make a submission that had not been considered previously and the party had no opportunity to raise it. (2) A party wishes to introduce evidence which it could not have obtained previously with reasonable diligence; (3) And which would be “practically conclusive” or make a “substantial difference” to the outcome; or the request raises significant and important issues of Board policy which the Board considers had been previously decided incorrectly. |
|
| Definition of Employee | ||
| Melissa Black v 2452260 Ontario Inc. o/a Massage Experts
OLRB Dec 2023 |
Section 1(1) ESA defines an employee as including a person who performs work or supplies services to an employer for wages.
Definition of employee for the purposes of the ESA is the common law test as in Wiebe Door Services as referenced in SCC in 671122 Ontario v Sagaz |
|
| Principled Approach | ||
| Statutory Authority | s. 104 ESA allows for remedy where violation has been found of Part XIV leave of absences; Part XVI lie detectors, Part XVII retail businesses and Part XVIII reprisal.
S. 50(1) OHSA reprisal Other statutes with similar remedy are reviewed here. |
|
| Melissa Black v 2452260 Ontario Inc. o/a Massage Experts
OLRB Dec 2023; Rainbow Concrete Industries Limited v. Kavan Cheff-Burns, OLRB March 2016 |
In its determination, the Board must be guided by the purpose of the ESA, namely, the protection of employees. The Board is therefore required to interpret the EAS “in a broad and generous manner, favouring interpretations that extend the statute’s protections to as many employees as possible over those that do not.
Exclusions must be interpreted narrowly.
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|
| Reprisal | ||
| Patterson v The Queen OLRB June 2022 | It is not required to show success in underlying complaint for reprisal remedy. | |
| Reprisal remedy under OHSA is identical to remedy for reprisal under ESA. | ||
| Reverse onus | ||
| The reverse onus is very common in statutory remedies. It applies to reprisal claims under the ESA and the OHSA, and numerous other statutes reviewed here. It is an evidentiary onus, not a presumption of guilt. | ||
| Michael Weaver v Nature’s Finest Produce Ltd.,
OLRB July 2023 |
Applicant must show they were acting in compliance with the Act or sought enforcement of it and suffered adverse consequences as, for example, in s. 50(1) OHSA. The presumption section is not a presumption of guilt but an evidentiary onus. The employer must then show what motivated its action. If the employers conduct was motivated in any way by the employee’s exercise of their rights, a violation will be found even where there are shown other perfectly valid reasons for its actions. | |
| Remedies | ||
| Fiorildo Tenace v Sense Appeal Brands Inc. (Sense Appeal Coffee Roasters)
OLRB August 2015
|
Particularly when it comes to the remedial provisions, it incumbent upon the Board to read these ‘in a broad and generous manner. | |
| Shi v. Holcim (Canada) Inc.,
OLRB October 2012 |
The remedy allowed is generally in four categories, all of which are intended to “make whole”:
Direct wage loss Loss of expected job continuity (where no reinstatement) Mitigation expenses Pain and suffering To be added to this list is reinstatement. |
|
| Michael Pereira v Cambridge Pallet Ltd
OLRB May 2021 |
Reinstatement is considered the presumptive remedy. | |
| Shi v. Holcim (Canada) Inc.,
OLRB Oct 2012 |
Principle of the remedy is to make whole for reasonably foreseeable losses occasioned by the breach. “But for” the breach, what are applicant’s losses? | Damage claim for lost income was adjusted by employer’s decision to close the business. |
| above | Loss of expectation of employment is generally compensated at one month per year of service | |
| Direct Wage Loss | ||
| Henderson v Marquest Asset Management
OLRB June 2010 |
Presumptive remedy of reinstatement with back pay. Back pay ordered from date of refusal to reinstate to the date of the hearing, with credit given for sum paid on termination. | Total award, with credit given, was from July 2009 to June 2010. |
| Barber v. LP Services
OLRB Feb 2013 Also citing IAmbutrans Inc., [2003] OLRD. No. 117 the Board, at par 11 |
Presumptive remedy is reinstatement with loss of back pay. | |
| L & L McCaw Holdings Ltd. operating as Canadian Tire v Chun Bao Yin | Direct loss wages should be allowed from the date of the wrongdoing to the date of reinstatement | |
| Above, para 75 | There may be an intervening event unrelated to the wrongdoing which may interfere with the claim for lost income to the date of the hearing, such as the closing of the business. This may also apply to reinstatement. The employee may have accepted other employment which he does not wish to leave. In these situations, compensation for lost income to the date of hearing may be inappropriate. | |
| Par 76 | The deterioration of the relationship due to the employer’s wrongdoing should not be a factor in reducing the lost income claim | |
| Shi v Holcim (Canada) Inc reconsideration motion Jan 2013
|
Assessment concluded that applicant would not have remained employed through to the hearing date, a period of 30 months. Award made of 9 months.
Pattern of short term prior employments. Tension with the parties, supervisor continuing to be have been disenchanted. Finding that she would have been terminated even though no formal discipline or adverse performance review. Minor revision to vacation pay gross up; Reconsideration failed to add to lost income the sum historically paid for RRSP matching Consequently, the Board awarded nine months of wages for direct wage loss. Given its finding that the employee would not have remained an employee beyond that point, the Board declined to award damages for loss of reasonable expectation of continued employment. |
9 months |
| Patterson v The Queen
OLRB June 2022 |
Board found that it was unlikely applicant would have completed remaining probationary period of 9 months. The award of lost wages was found to be 6 months, given this risk factor. | 6 months |
| Grayden Vaughan v K9 Watch & Protective Services Inc.
OLRB Nov 2022 |
Reconsideration decision;
Vacation pay added to direct earnings loss and future earnings award; Case was undefended. Direct earnings loss of 25 weeks, that is, past earnings loss. Loss of expectation of employment awarded at 30 weeks, based on formula of one month per year of service, that is, future earnings loss; Compensation ordered for mitigation expenses of $5,899; Award made of $3,500 for mental distress |
Past earnings 25 weeks;
Future earnings 30 weeks; Job search $5,899; Mental distress $3,500. |
| Michael Pereira v Cambridge Pallet Ltd
OLRB May 2021 |
Where the applicant does not seek reinstatement or the Board finds reinstatement is not appropriate, Board has customarily has customarily ordered compensation for wage losses to the date of the Board's decision. | Direct wage loss awarded for 63 weeks in the sum of $45,787. |
| Loss of Value of the Job Itself aka Future Income Loss | ||
| L & L McCaw Holdings Ltd. operating as Canadian Tire v Chun Bao Yin
OLRB July 2019 |
The general pattern has been to award one month for each year of employment. This is not a rule or a policy.
Damages of this kind for the loss of the job itself or loss of reasonable expectation for employment, are only given to employees who do not seek reinstatement or who are not awarded reinstatement. (pg 89) |
|
| Wyeth-Ayerst Canada as cited in Luis Gabriel Flores Flores v Scotlynn Sweetpac Growers Inc.
OLRB Nov 2020 |
This is generally referenced as “compensation or the loss of the job itself”.
There are additional components to this analysis such as the inherent value of employment, the need to seek other employment, lost opportunities which may have developed from the lost position, accrued seniority or length of tenure, building relationships, strengthening of self-esteem. |
|
| Wyeth-Ayerst Canada as cited in Luis Gabriel Flores Flores v Scotlynn Sweetpac Growers Inc.
OLRB Nov 2020 |
The purpose of this award is to compensate the employee, not punish the employer;
This head of damages should reflect the duration of the employment. |
|
| Barber v. LP Services
OLRB Feb 2013 |
Applicant employed for 12 weeks;
Lack of trust between the parties. Reinstatement doomed to fail. Loss of future employment was predicated on expected time required to find new employment. |
Loss of future employment set at 4 weeks |
| L & L McCaw Holdings Ltd. operating as Canadian Tire v Chun Bao Yin
OLRB July 2019 |
Board determined that the use of the formula of one month for each year of service undervalued long term advantage of this employment to applicant, who had short term employment and considered a good worker. | Three months awarded for future loss. |
| McLaughlin v. Graphite Specialty Products Inc
OLRB May 2009 |
Reinstatement denied. Applicant employed for roughly two years. OHSA reprisal case.
|
16 weeks |
| Shi v Holcim (Canada) Inc reconsideration motion Jan 2013
|
Assessment concluded that applicant would not have remained employed through to the hearing date, a period of 30 months. Award made of 9 months.
Pattern of short term prior employments. Tension with the parties, supervisor was seen as disenchanted. Finding that she would have been terminated even though no formal discipline or adverse performance review. Consequently, the Board awarded nine months of wages for direct wage loss. Given its finding that the employee would not have remained an employee beyond that point, the Board declined to award damages for loss of reasonable expectation of continued employment. |
No future loss |
| Patterson v The Queen
OLRB June 2022 |
Board found that it was unlikely applicant would have completed remaining probationary period of 9 months. No future loss was awarded. | No future loss |
| Sandtastik Inc. v. Little
OLRB July 2005 |
Applicant did not seek reinstatement as she had secured new employment at a salary $150 less per month. | Compensation was ordered for future loss for 10 months for this differential. |
| Reinstatement | ||
| Henderson v Marquest Asset Management
OLRB June 2010 |
Presumptive remedy of reinstatement with back pay. | |
| Barber v. LP Services OLRB Feb 2013
Also citing Ambutrans Inc., [2003] OLRD. No. 117 the Board, at paragraph 11 |
Presumptive remedy is reinstatement with loss of back pay. | |
| Barber v. LP Services
OLRB Feb 2013 |
Applicant employed for 12 weeks;
Lack of trust between the parties. Reinstatement denied, as this was doomed to fail. |
|
| L & L McCaw Holdings Ltd. operating as Canadian Tire v Chun Bao Yin
Above, para 75 |
There may be an intervening event unrelated to the wrongdoing which may interfere with the claim for lost income to the date of the hearing, such as the closing of the business. This may also apply to reinstatement. | |
| Sandtastik Inc. v. Little OLRB 2005 | Reinstatement should have been ordered, notwithstanding apparent animosity. | |
| McLaughlin v. Graphite Specialty Products Inc
OLRB May 2009 |
OHSA reprisal case. Reinstatement not viable due to apparent animosity. Also, other outstanding litigation re EI application and related ESA case between the parties. Concerns over genuineness of reinstatement request, given other employment. | |
| Pain & Suffering
In Date Order |
||
| McConnell v Arva
May 2001 OLRB |
Termination due to pregnancy. Insufficient evidence of emotional hardship. Board made minimal award for pain and suffering. | $500 pain and suffering |
| Thiessen Greenhouse Flowers Ltd. v. Singkhaew
OLRB Dec 2003
|
Reference to “Employment Standards And Human Rights Remedies, (Melanie Manning, Aurora: Canada Law Book, 2003)”, the factors to be considered in the assessment of such damages have been catalogued from the case law as follows: (1) loss of security of full time job; (2) financial hardship; (3) stress; (4) loss of sleep; (5) increase in severity of headaches; and (6) effect on family relations.
Here, there was no formal medical evidence. Claimant experienced anger, stress, financial hardship and the loss of the security of a full-time job. She lives in a relatively small agricultural centre. Many of her relatives worked for the Employer, including her husband. The claimant testified to the stress her termination caused on her family relations, which led to her husband quitting his job with the Employer. |
$1,500 pain and suffering, then considered the high end of the scale |
| Cupeta v. Youth in Motion Education Foundation
March 2009 OLRB
|
Damages for pain and suffering intended to compensate for “humiliation and real hurt” suffered by applicant.
The general maximum of this award is considered to be $1,000 unless there is egregious conduct; Pain and suffering need not be proven by medical evidence. It must be more than generalized upset and anxiety, as may be occasioned by any job loss. |
Award made of $1,000 for pain and suffering. |
| Henderson v Marquest Asset Management
OLRB June 2010 |
Evidence of generalized upset and anxiety led to no award. Evidence was that the termination came as a complete surprise and devastated her. Her spouse had also been laid off. She had two children to care for, one of which was a newborn. Loss of a few nights’ sleep. | nil |
| Goyal v. Dana Hospitality Inc
OLRB Jan 2011
|
With respect to emotional pain and suffering, Goyal has not tendered any cogent medical evidence with respect to her assertion of the impact the termination had on her health. None of the other circumstances of the termination lead to a presumption that it would have entailed significant emotional suffering beyond that occasioned by any job loss. She was not a long-term employee. She was not terminated because of pregnancy or for other discriminatory reasons which might have impacted her ability to find other work. She was not terminated from a situation where she had been “like a family member” or where her former employer was essentially the only employer in her community and where family members continued to work. There is no allegation that the employer did anything that made it more difficult for her to obtain employment or income replacement benefits following her termination, such as disavowing the employment relationship or withholding her Record of Employment. (referencing situations in which such an award had been made) | nil |
| Brenda Bastien v Prohairlines, OHSA,
OLRB Oct 2014 |
Applicant suffered serious work related injury. She was pressured to stay working. Employer discovered she had contacted Ministry to complain about working conditions. Applicant dismissed summarily, threatened to call police if she returned to workplace. Refused to provide Record of Employment claiming she was self-employed. | $7,500 for mental distress |
| Rentech v Berto
Reconsideration decision OLRB Jan 2016 |
Employer terminated Berto at the time it was being advised of the serious injuries to his mother as well as Berto’s own need for an emergency medical leave. | $5,000 for pain and suffering |
| Leah Podobnik v Society of St. Vincent de Paul Stores (Ottawa) Incorporated, OHSA
OLRB Sept 2016 |
Applicant saw employment with Catholic charity as a “calling”, like family. She found task assigned to her as insurmountable. Considered this a risk to her health and safety. Employer treated this as a refusal to work, resulting in discipline. Employer told her to quit if she considered work as unsafe. Next day she was demoted. She was then dismissed, escorted out of the building. Chronic depression was exacerbated. | $3,500 mental distress |
| L & L McCaw Holdings Ltd. operating as Canadian Tire v Chun Bao Yin
OLRB July 2019 |
Reconsideration decision amended award of damages for emotional suffering from $500 to $3,000. Applicant suffered “heartbreaking trouble”, “great emotional pain”, “sleeplessness, high blood pressure, and “being treated like garbage” as well as being ineligible for Employment Insurance because of the wrongful characterization of his actions as a quit. The failure to have references also affected him greatly and impeded his ability to find another job. | $3,000 for emotional distress |
| Luis Gabriel Flores Flores v Scotlynn Sweetpac Growers OLRB Nov 2020 | Claim under OHSA. Applicant unable to send money to his family in Mexico which was used for basic essentials of life. In Ontario without family, Suffered emotionally.
Power imbalance. Migrant worker dependent on employer for wages, shelter and transportation. No English abilities. Suffered due to employer’s reaction to his concerns of health and safety on the farm. |
$5,000 mental distress |
| Michael Pereira v Cambridge Pallet Ltd
OLRB May 2021 |
Applicant felt humiliated as a result of the termination of his employment. However, there is no evidence of the need for medical attention and the injury as a result of the humiliation was not long lasting. In these circumstances, the award should be at the lower end of the scale. | $1,500 pain and suffering |
| Constance Johnson v Rige Associates Ltd.
OLRB Jan 2023 |
Reprisal complaint under OHSA. Employer failed to issue Record of Employment, denying applicant EI. Applicant was without income until she enrolled in Homeless Shelter Programme and then received Ontario Works Subsidy. Conduct was insensitive and humiliating. | $2,500 mental distress |
| Doaa Alsadah v Single Mothers in Progress
OLRB May 2023
|
Reprisal case. Non-payment of wages caused great deal of stress and anxiety. Needed to negotiate with landlord for partial payment. Unable to pay for dental work which caused physical pain. Conduct seen as egregious. Deterrence cited as a factor in setting the award. | $1,500 for pain and suffering. |