Power of the Dissenting, or Concurring Reasons or Obiter Post author:dqh Post published:March 18, 2024 Post category:Concurring & Obiter Reasons ContentsPower of the Dissenting, or Concurring Reasons or ObiterPower of the DissentJust Cause DefinedValue of EmploymentIncentive TermsConcurring ReasonsObiter Becomes The Law📚 Explore Other Subjects in This ChapterFootnotes Home › Contracts ›Power of the Dissenting, or Concurring Reasons or Obiter/nav> Power of the Dissenting, or Concurring Reasons or Obiter Power of the Dissent If making a submission which appears contrary to modern authorities, there is no need to avoid citing dissenting, or concurring reasons in argument. Several past dissents speak loudly to the power of the dissent. Just Cause Defined The 1967 decision of Schroeder, J.A., is a vivid example. 1 The case involved a review of the decision of a Board of Arbitration under a collective agreement. The Board had substituted a suspension without compensation to replace the termination as proper discipline. The issue before the Court of Appeal was whether the Board had exceeded its jurisdiction by revising the discipline. Wells, J.A. and Laskin J.A. had each agreed that the Board had such jurisdiction. Schroeder, J.A., disagreed with the majority and determined that the collective agreement did not allow the Board such a right and this could not be implied into the interpretation of the collective agreement. The Board, he stated, had one function, which was to determine if there was proper cause for termination. To that end, he provided this test of just cause, one which has been cited in countless subsequent decisions: If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee. The officers in charge of the operation of the business know better than any other person whether the evil against which measures are to be taken is a prevalent one, or if the orderly conduct of the business and the efficient management of the working force require that an employee’s misconduct calls for discharge or merely suspension, demotion, or the deprivation of other rights or privileges. In any case that right was expressly reserved to management as its exclusive function in unambiguous terms to which the union gave unqualified assent and recognition. The majority, as noted, found that the Board had the power to amend the nature of the discipline imposed. It did not need to define the concept of just cause and did not do so. This was a dissent in the purest form as it differed from the substantive decision on appeal. It is not truly a substantive dissent in the sense that the quoted passage did not differ from the views from the majority on this subject. The dissent in this context may be more powerful, given this absence of contrary reasoning in the majority reasons. Value of Employment A second famous dissent is that of Dickson C.J.C. in 1987 in the Supreme Court of Canada. 2 The issue before the Court was whether the Charter right of freedom of association protects a worker’s right to strike. The dissenting reasons had found that this right to strike was such a protected Charter right. 3 The submission had been made that the protections of the Charter should not be extended to “associational activity for the pursuit of economic ends”. Dickson, C.J.C. stated that there is much more significance to a person’s “livelihood or dignity” that simply a financial reward, the latter being an argument which the court noted would require careful consideration. The workers’ interests, he noted, extends far beyond the monetary compensation. All this is contextual prelude to the now famous quote: Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self respect. In exploring the personal meaning of employment, Professor David M. Beatty, in his article “Labour is Not a Commodity”, in Studies in Contract Law (1980), has described it as follows, at p. 324: As a vehicle which admits a person to the status of a contributing, productive, member of society, employment is seen as providing recognition of the individual’s being engaged in something worthwhile. It gives the individual a sense of significance. By realizing our capabilities and contributing in ways society determines to be useful, employment comes to represent the means by which most members of our community can lay claim to an equal right of respect and of concern from others. It is this institution through which most of us secure much of our self respect and self esteem. These reasons arose in a context which was similar in effect to the dissent of Schroeder. J.A. above. The majority and concurring decisions did not deal with this issue. The dissent was not contradicting an opposite approach taken in these decisions. Incentive Terms A further dissent by Feldman J.A. was made in a Court of Appeal case dealing with incentive payments which arguably fell due within the notice period. 4 In this case, there was a term in the incentive plan which allowed the employer the right to discontinue the fund which gave rise to a bonus sum. The employer successfully argued that it had the right to do so, without the need to provide a comparable benefit. The majority found that this form of compensation was specific to this fund and once that this was wound up, so was any further claim. The dissent reasoned that this benefit was an integral part of the plaintiff’s compensation. Feldman J.A. noted that there was an absence of unambiguous words which allowed for the conclusion as stated by the majority. This was contrary to the theme of Matthews. This decision required such clear language in step 2 of the analysis to defeat a claim which was found to be an integral part of the employee’s compensation in step 1. Just as this was so, then to remove such an integral component of the step 1 analysis, similar clear words are required, language which was missing in this instance. The dissent does make sense. Had the employment relationship not been terminated, would the removal of such form of incentive, with this language, be grounds for a constructive dismissal claim ? Perhaps so, but not based on the majority decision. Concurring Reasons A concurring decision, ironically, which comes to the same end as the majority, yet for different and contradictory reasons, may be less useful as a precedent. Take for example, the concurring reasons of Feldman, J.A. in a decision of the Ontario Court of Appeal dealing with the issue of the income earned by the plaintiff following termination. 5 In this decision, Feldman J.A. held that the income received by Ms. Brake as a cashier with Home depot, which was much more modest than the sum she had earned while actively employed, should not offset the damage sum for fair notice. This was seen as “so substantially inferior”, derived from a position which the plaintiff had no need to accept as a mitigation obligation and, hence, should not reduce the claim: [158] It follows, in my view, that where a wrongfully dismissed employee is effectively forced to accept a much inferior position because no comparable position is available, the amount she earns in that position is not mitigation of damages and need not be deducted from the amount the employer must pay. It is always up to the trial judge to determine if the employee has met her duty to mitigate. When a wrongfully dismissed employee accepts new employment during the notice period, the question of whether or not to deduct those earnings depends on the trial judge’s assessment of mitigation. If the trial judge finds that the new job is comparable to the old one, the earnings should be deducted as mitigation of damages. If the trial judge finds that the new job is vastly inferior to the old one, such that the employee would not be in breach of the duty to mitigate if she turned it down, the earnings should not be deducted. This was a new legal construct, one with which the majority did not agree. 6 These concurring reasons subsequently have shown signs of an independent life. No deduction was made of such “inferior” income in two Ontario trial decisions, one in 2018 and a second in 2019 decision. 7 The quote below is from McLean: The evidence in this case clearly shows that most of the employment income earned by the Plaintiff herein post-separation from the Defendant, excepting that received from his employment with Quickmill and Contracore during the notice period, was earned in jobs that were clearly inferior to the position he held with the Defendant. This includes income from the Plaintiff’s new roofing company, to the extent there was any that on the evidence is by no means clear. Following and applying the decision of the Ontario Court of Appeal in Brake, I find that the income received by the Plaintiff from his employment at Quickmill and at Contracore in Mexico are amounts properly deductible from the notice award herein. The Federal Court reviewed this issue in 2021 and rightly noted that the reasons of Feldman J.A., on this point were indeed not those of the majority. 8 Significantly, however, in both McLean and Mackenzie, the Ontario Superior Court in reaching those decisions referred only to and relied on Justice Feldman’s concurring minority judgment in Brake, not the majority decision. Time will tell. Obiter Becomes The Law The 1983 Ontario Court of Appeal decision in Wallace v TD Bank, has been quoted frequently on the issue of the substratum argument. The words from Wallace which are often cited read as follows: Certainly there are readily imaginable cases where an employee’s level of responsibility and corresponding status has escalated so significantly during this period of employment that it can be concluded that the substratum of an employment contract entered into at the time of his original hiring has disappeared or it can be implied that that contract could not have been intended to apply to the position in the company ultimately occupied by him. These words are strictly obiter as the plaintiff did not plead a substratum argument to avoid the contract in that instance. That being said, this passage has received sufficient air time over the years to allow it to be persuasive for the interpretation of this issue. This is so even as of 2023 in which the Court of Appeal referenced the same passage as authoritative. 9 The evolution of the law is at times is often difficult to predict. All this being said, there is no foul incurred for arguing that a dissent, or concurring reasons, or obiter dicta, should be followed. This is an important consideration in the development of employment law principles of contractual interpretation, as reviewed here. 👤 About the Author: David Harris — Canadian Employment Law 📚 Explore Other Subjects in This Chapter 🔙 Back to Contracts Index Page 🏠 Return to Canadian Employment Law Footnotes R. v. Arthurs, Ex p. Port Arthur Shipbuilding OCA para 91 Reference re Public Service Employee Relations Act (Alberta) Wilson, J.A. agreed with Dickson C.J.C. and did not deliver separate reasons; McIntrye, J.A. delivered separate reasons concurring with the majority. Manastersky v RBC Brake v PJ-M2R notwithstanding these reasons, the majority did not offset the sum so earned from the award as it was a modest amount MacKenzie v 1785863 and McLean v Dynacast Dengedza v CIBC in a judicial review of an unjust dismissal claim Celestini v. Shoplogix Inc