You’ve just been fired and handed an offer that is an insult. The employer then rubs the salt into the wound by refusing to pay your minimum entitlements at law. You can sue them for common law notice, but that is for the loss of your employment. What about the harm done to you?
Many employees feel they will never see their employer held to account and accept the meagre settlement amount. This is a mistake. The Courts look extremely poorly on bad faith conduct by the employer before, during, and after termination, including during a lawsuit. Employers tend to be punished for their conduct in two ways: general damage awards and costs.
What are General Damages?
General damages, also known as moral damages, consist of aggravated damages and punitive damages. Aggravated damages are amounts of money a Court awards as compensation for the loss of something that does not have a monetary value. A typical example is pain and suffering. Pain does not have a fixed monetary value like an unpaid invoice or a monetary value that can be calculated, like pay in lieu of notice. However, the law recognizes that this is something that is deserving of compensation.
Punitive damages are the opposite. The law recognizes that some conduct is worthy of punishment. These damages punish the bad party rather than compensate the good party for the harm they suffered.
Employers must act in good faith, which means they cannot lie, deceive, or refuse to comply with their legal obligations in all aspects of employment, including termination. If they do any of these things, they are acting in bad faith.
One key requirement is that you cannot sue for general damages alone; they have to be part of some other valid claim, such as breach of contract.
What are Costs?
Costs or cost awards are amounts of money a Court will order to be paid to cover a portion of the other side’s legal fees. Typically, the losing party in a lawsuit will be required to pay partial indemnity costs to the winning party, which are roughly 60% of the actual legal fees incurred. In certain cases, Courts may order substantial indemnity costs, which are roughly 80% of the actual legal fees incurred if, for example, a party has behaved badly in the lawsuit. Very rarely, costs are awarded at a higher percentage. There are numerous rules around costs that all factor into an award, including the discretion of the trial Judge; however, in most cases, when a Court awards substantial indemnity costs against a side, it is because they did something worthy of punishment.
The cases of Teljeur v. Aurora Hotel Group and Hannan v. Scouts Canada (Scouts) illustrate how these two ways of punishing ’employers’ operate.
Bad Faith in Termination: Damages
In Teljeur v. Aurora Hotel Group (Teljeur), Mr. Teljeur, a General Manager at Pinestone Resort & Conference Centre, was terminated on December 6, 2021, after more than three years in the role. The employer explained that the decision to let him go was part of a shift to external management but did not allege any misconduct on his part. During the termination meeting, the employer verbally promised 8 weeks of severance along with full payment for the week’s work. However, no written documents were ever provided.
Despite these assurances, the actual amount provided to Mr. Teljeur was limited to only his entitlements under the Employment Standards Act, 2000 (ESA), which were less than half of what was promised. Payment of these lesser amounts was significantly delayed and failed to comply with the deadline under the ESA. Pinestone also failed to reimburse Mr. Teljeur for over $16,000.00 in business expenses he had paid for with her personal credit card despite acknowledging he was owed repayment, creating a heavy financial burden on him.[1]
The Court awarded Mr. Teljeur eight months’ pay and $15,000 in moral damages due to his mistreatment at the hands of his former employer and the mental distress he had suffered.
Pinestone appealed the decision to the Ontario Court of Appeal, which dismissed the appeal and awarded Mr. Teljeur’s costs on a partial indemnity basis. The Court also confirmed the moral damage award, stating in paragraph 5 of its decision that “The conduct of the appellants was deserving of censure, and we see no reversible error.”[2]
Bad Faith in ‘Termination’: Substantial Indemnity Costs
In Hannan v. Scouts Canada (Scouts), Mr. Hannan was an eight-six (86) year-old man who had been a volunteer “Scouter” since 1958.[3] On November 8, 2023, Scouts Canada advised him that it would not be allowing him to renew his membership for the coming year “due to safety concerns and resistance to program adaptation.” The letter stated it was a follow-up to previous conversions in December 2022. The issue was that these conversations had never taken place, and Mr. Hannan had no idea what it was alleged he had done.
Scout’s Canada did not produce direct evidence of anyone involved at the hearing despite claiming to have numerous ‘witnesses.’ In contrast, Mr. Hannan was able to provide his own direct evidence as well as affidavits from his fellow leaders and the parents of the children he directly cared for, all of whom confirmed there were no concerns. As highlighted by some of the other witnesses, Mr. Hannan was only kicked out after he voiced concerns about Scouts Canada unilaterally replacing older leaders.
Due to this, the Court issued a formal declaration that no misconduct had occurred, Scouts Canada had violated its own discipline policies and that Mr. Hannan was wrongfully terminated from his volunteer position. It also ordered Scouts Canada to pay $50,372.00 in substantial indemnity costs.
What These Rulings Mean for You
If your employer makes promises they don’t keep, delays your payments, or treats you unfairly during termination, you have rights. The Courts will punish misconduct by an employer, even in cases where no money is awarded to the employee.
These cases remind employees that the law is on their side. Employers who act dishonestly or unfairly won’t get away with it. You deserve to be treated with dignity during and after employment, and if that doesn’t happen, the Courts will step in to make things right.
The lawyers at De Bousquet Professional Corporation pride themselves on treating every client like a person, not a file number and responding to your needs. If you’ve been treated unfairly by your employer during your termination process, don’t stay silent. Contact us today.
[1] Teljeur v. Aurora Hotel Group, 2023 ONSC 1324