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What is the penalty if a company fails or refuses to file a Record of Employment on time?
While cases involving government sanction for failing to properly file an ROE appear to be few, in the civil case of Ellis v Artsmarketing Services Inc., 2017 CanLII 51563 (ON SCSM), an Ontario Small Claims Court Deputy Judge awarded money damages for such inconvenience.
Truth or Consequences was an American television show originally hosted on NBC radio by Ralph Edwards (1940–1957) and later on television by Edwards (1950–1954), Jack Bailey (1954–1955), Bob Barker (1956–1975), Bob Hilton (1977–1978) and Larry Anderson (1987–1988). The television show ran on CBS, NBC and also in syndication. The premise of the show was to mix the original quiz element of game shows with wacky stunts.
The title “Truth or Consequences” serves as an appropriate introduction to the issue of what happens when an employer concocts reasons for termination after being served with an employee’s claim of wrongful dismissal.
The question answered by this post is: What is the penalty to an employer for concocting an allegation of theft in order to justify an allegation of just cause for termination? In a case from the Ottawa Small Claims Court, Budge v Dickie Moore Rental Inc, 2017 CanLII 468 (ON SCSM), the answer was $4,000 in punitive damages.
There is no shortage of things that can leave one feeling as if he has been “wronged.” However, when it comes to a lawsuit, even one commenced in the Small Claims Court, unless that wrong is a legal wrong the court will not award the claimant any money.
In the area of employment law, there is similarly no shortage of things that can happen at work that can leave one feeling as if he has been wronged. This blog has frequently considered the issue of workplace harassment and the effects of the same. (See e.g. Claims of a Hostile Work Environment: Shields not Swords?)
Although it was not an employment law case, and is therefore a bit of a departure from this blog’s regular content, the decision of the Brampton Small Claims Court in Baker v Royal Bank of Canada, 2016 CanLII 30097 (ON SCSM) very aptly demonstrates the point made above: no legal wrong, no damages.
One of the most commonly held beliefs about the civil justice system is that the losing party has to pay the winning party’s legal fees. While that belief is not entirely correct, it is not entirely wrong either.
Civil courts in Ontario have the right to award “costs” following a “proceeding.” Without wading too far into the semantics, “costs” is not the same thing as the amount that one has paid his or her lawyer, and “a proceeding” may be a trial, but it may also be something else.
The issue of costs in the Ontario Small Claims Court is both more simple and more complex. What makes matters easier is that the law prescribes that the basic amount of costs to which a successful party will be entitled following a trial is 15% of the amount claimed, plus actual disbursements. With a jurisdictional limit of $25,000, that means that if one sues for $25,000, then costs may typically be in the range of $3,750, i.e. 15% of the amount claimed.
Where things get complicated is that the law also says that judges have discretion to award more or less money for costs. The law also allows the judge to award costs to the losing party.
Decisions on costs from the Ontario Small Claims Court are rare. Judges rarely issue written reasons for the costs award, and even when judges do write out their reasons they are infrequently reported.
In 2015, I was involved in a Small Claims matter where the plaintiff alleged that she was wrongfully dismissed. I acted for the defendants in that case. On January 1, 2016, the Honourable Deputy Judge Lyon Gilbert dismissed the plaintiff’s case for reasons reported as Barton v Bowerman, 2016 CanLII 30100 (ON SCSM). Following the trial the judge invited the parties to make submissions on the amount of costs that should be awarded.
Following the presentation of written submissions, Deputy Judge Gilbert awarded the defendants, for whom I acted, $8,000.00 in costs. The court’s reasons can be found by clicking the following link: Costs Decision in Barton v Bowerman. Ottawa Small Claims Court. Court File No. 14-SC-130470. January 18, 2016.
As of July 1, 2014, the Ontario Small Claims Court has the power to summarily dismiss any claim made to it, “if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.” This change will be welcomed by those who practice in the Small Claims Court and are sometimes forced to respond to such claims.
