Author: Shannon Sproule
Wrongful dismissal takeaways from Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967: How to factor the pandemic’s impact into the assessment of mitigation and damages and insight into the significance of a reference letter.
Facts
The Plaintiff worked for the Defendant, Walt Dentistry on an occasional basis in 2017, and transitioned into full-time work in September of 2019. Walt Dentistry terminated her employment on a without cause basis, on March 15, 2020. On March 30, 2020, the plaintiff’s lawyer requested a reference letter on her behalf. The letter was never provided.
The plaintiff received CERB benefits for the period of March 15 – September 20, 2020. Her wrongful dismissal claim included a claim for damages covering the period of time when she was in receipt of CERB. In addition to the impact of CERB on her damages claim, the Court had to determine how the pandemic and her employer’s refusal to write a reference letter impacted mitigation and her notice period.
Decision
While the Court ultimately found in the plaintiff’s favour, and awarded her with a three-month notice period, its analysis of Covid-19 factors and reference letters, is noteworthy.
CERB is not double dipping when it comes to damages. The Court may continue to analyse this concept in the future, but for now, Ontario Courts are not treating CERB benefits as a mitigation credit, and are treating them differently from traditional EI benefits.
The Pandemic does not provide all unemployed employees with a slam dunk conclusion that it was harder for them to find work as the effect was not uniform. While the Court noted that the pandemic had a harmful impact on particular sectors of the labour market, they ultimately found that this might not apply to employees who belong to a group of workers that were in high demand at the time, which included nurses, health care workers and front-line workers. In this case, the Court found that Covid-19 was not a hindrance to a dental hygienist finding work. It also noted that the plaintiff’s mitigation efforts were reasonable.
A reference letter is not mandatory nor is it deemed to impact mitigation efforts if the parties had a strained relationship. The Court saw it as a “sterile factor” in this case.
Takeaways
Employees should still attempt to mitigate by requesting references and reference letters and employers should still cooperate. However, the Court is not prepared to automatically reward the plaintiff for the employer’s refusal as it examines the actual meaning behind the request.
Employees should put their best foot forward when it comes to mitigation (including proof of efforts). The Court analyses how the pandemic affected plaintiffs, based on their area of work, which might mean concluding that there were even more jobs available to them during the pandemic.