Notional Termination

Loss of Statutory Payment(s)

The suggestion has been made above, that in a fact situation where the employer argues that the “but-for” lost income claim should be reduced due to a planned closing or other event which would have inevitably brought about the permanent end of the working relationship, the employee should then receive fair additional sums for what would have been the statutory payment(s) and/or the common law entitlement.

The difficulty with respect to this plea is that the tribunal has traditionally taken the position that it has no jurisdiction to award the statutory severance sum, absent direct discriminatory conduct which led to its denial. ^{1 2}

The significance of the statutory claim would be emphatic where the employee found alternate employment quickly as the statutory sum is not reduced by mitigated income. This is so particularly in Ontario which sets the cap on severance and notice as 34 weeks.

All this places the complainant in a difficult circumstance in the hypothetical situation as described above. There can be no complaint with the relevant ministry for the statutory entitlements as there has been no termination. The employer’s argument that had the relationship been continued but-for the wrongdoing, and that there would have followed a termination as a redundancy or closing, must be seen to be connected to the initial discriminatory wrongdoing for the statutory sum to be ordered, given the state of the law. Clearly the statutory claim comes as a direct loss attributable to the adverse conduct and should be compensated. The path to recovery is an awkward one and is need of rebuilding.

A similar case arose from a human rights claim which was defended by a release argument. The applicant rebutted the release argument by the submission that the release failed to satisfy the statutory minimum and was thus enforceable.

The tribunal’s response to this submission was that it lacked jurisdiction to interpret this statute and hence it was obliged to uphold the release and dismiss the complaint. ³

The decision hence stated that in order to give the tribunal jurisdiction that the applicant would need to prove that the release was motivated by a human rights violation. It is bizarre that the tribunal cannot interpret the employment standards legislation even for a collateral purpose and not one intending to award financial compensation under this statute.

Should this be the law, the applicant would need to file a human rights complaint in a timely manner and then sue in the civil court for declaratory relief that the release is unenforceable, all of which would be a grand waste of legal energy to both sides, apart from an unnecessary use of judicial time.

The position that the tribunal has no jurisdiction to award the sums due under the provisions under the relevant employment standards act, absent a human rights violation and a rational causal connection does not make sense.

The ratio has not been expressed in the above cases but presumably the origin of the argument is that the tribunal is a creature of statute and derives its power from the statute.⁴ The conclusion that the tribunal has no power to interpret the Employment Standards Act or for that matter, any other provincial or federal statute in the course of exercising its legitimate jurisdiction lacks logic.

Loss of Common Law Remedy

The same view is taken by the tribunal with respect to the common law remedy. The tribunal takes the general view that it is unable to apply such relief. ⁵

In the example of the employer arguing that the “but-for” submission would mean that the applicant would have been terminated for economic redundancy after, for instance month four, it should then follow that the damage claim would include not only four months but also the statutory and common law claims that would have been allowed. Otherwise, the company has a direct incentive to terminate all staff for human rights remedies and agree to apply the but-for analysis.

The Supreme Court of Canad ⁶had before it an issue as to whether the Social Benefits Tribunal had the jurisdiction to determine whether a provision of the operative statute, the Ontario Disability Support Program Act which denied benefits to those persons suffering from addiction, was in violation of the Human Rights Code.

The Tribunal itself had found it lacked jurisdiction, a decision affirmed by the Divisional Court. The Court of Appeal reversed in finding that the SBT did have such power, yet also concluded that the issue was better resolved by the Human Rights process.

The Supreme Court allowed the appeal, being in agreement with the substantive decision of the Court of Appeal, but concluded that its decision should stand and further that there was no reason to defer to the Human Rights Tribunal.

More to the issue at hand, however, the Supreme Court stated that tribunals created by statute which are given the power to make decisions of law are enabled hence to look beyond the governing legislation by which they are created to “apply the whole law to a matter properly before them”.

The majority decision did note that one factor in its decision was that the Human Rights Code was not confined in its interpretation to the Human Rights Tribunal under the Code.

This factor but supplemented the general principle that tribunals created by statute are not confined to the interpretation of only the enabling legislation:

The laudatory goals of the Code are not well served by reading in limitations to its application. It is settled law that statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly in front of them. By applying this principle to the present appeal, it becomes clear that the SBT had the jurisdiction to consider the Code in determining whether the appellants were eligible for support pursuant to the ODSPA. At that point, the SBT had the responsibility of applying the Code in order to render a decision that reflected the whole law of the province.

Indeed, such is a presumption as stated by the Court:

The presumption that a tribunal can go beyond its enabling statute — unlike the presumption that a tribunal can pronounce on constitutional validity — exists because it is undesirable for a tribunal to limit itself to some of the law while shutting its eyes to the rest of the law. The law is not so easily compartmentalized that all relevant sources on a given issue can be found in the provisions of a tribunal’s enabling statute. Accordingly, to limit the tribunal’s ability to consider the whole law is to increase the probability that a tribunal will come to a misinformed conclusion. In turn, misinformed conclusions lead to inefficient appeals or, more unfortunately, the denial of justice.

This presumption, as noted in the decision, may be one which is contradicted by the enabling legislation:

Yet the power to decide questions of law will not always imply the power to apply legal principles beyond the tribunal’s enabling legislation. As noted above, statutory creatures are necessarily limited by the boundaries placed upon them by the legislature. Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of its tribunals however it sees fit.

In the instance of the human rights statutes, there are no such apparent restrictions. The tribunal should not be limited to interpreting solely its enabling legislation and indeed should apply “the whole law”.

It is for these reasons, that in the offered hypothetical, the complainant should receive payment of the statutory and common law sums, without duplication.

All this being said, such a claim did succeed in a 2010 tribunal decision. The applicant succeeded in showing a prima facie case of adverse treatment due to age. The employer, however, successfully proved that her termination was destined to take place, given the applicant's refusal to acknowledge her performance issues, and hence would have been unable to correct them.

The timing, however, of the likely termination event was one year following the performance review which had been conducted.

The employer had actually offered this severance sum in the course of active employment, which had been declined. The tribunal ordered that this package should be the basis of the remedy. To complicate matters unduly, the offer contained an incentive payment of one-half of the unpaid severance sum, given success in new employment, which did happen. This severance offer was nonetheless the basis of the remedy, as the tribunal reasoned that this event would likely have followed. ⁷