EMPLOYMENT LAW - SUCH AS IT IS
TOPIC: 'Employer's finances not relevant in terminations' Alan Shanoff (Employment law)
Ottawa Sun p.22
Quote: Calculation of the amount of notice or payment in lieu of notice required for employees dismissed without cause (e.g. lay-off RC) is often the subject of dispute between employers and their terminated employees....The law of wrongful dismissal requires reasonable notice or pay in lieu...factors a court will examine...: age of the employee, length of employment relationship and the availability of similar employment...
But what about the financial circumstances of the Employer?...The terminations were not based on the teachers' performance. The teachers were dismissed due to falling enrolment...
The Court of Appeal agreed stating that the trial judge erred in considering the school's financial circumstances...strong message...Employers may not reduce the termination packages...just because employers face economic or financial difficulties.
1) Too bad Alan Shanoff - whom is aware of the Employee's Case but like all other media writers - is prohibited from writing on it.
2) Notice that compensation, in whatever amount, must be paid. That is why Canada sank to Third World status in 2004 when the Supreme Court of Canada failed to deal with the unresolved Employee's Case dating from 1985 under the terms of ultimate remedy where no compensation (now includes pension rights) has been paid in this 30 year labour case involving laid-off West Vancouver senior teacher, Roger Callow, in June of 1985 under the conditions of the neophyte imposed BILL 35 (only ever used against this teacher).
3) Without excusing the original conspirators, that state of affairs before 10 separate courts and 40 judges is due to the venality of the Justice System. Without the ability to honour a written contract under the law, a legal system is defunct.
4) 'Wrongful dismissal' is a legal concept. Should the employee choose to go that route; maximum compensation is approximately 2 years salary which does not include having employment returned to him. Should the employee choose to pursue a dismissal as a 'breach of contract', a different set of laws apply but still ones which include compensation as a bottom line.
5) Wise employers will always have an offer on the table in whatever amount as courts are inclined to await any impending outside settlement which courts are known to pressure the litigants into doing. In the Employee's Case, an offer extended to 1999 but was promptly lifted when the B.C. Labour Board refused one of many requests from me to hold a Section 12 hearing.
6) The B.C.L.B. no doubt feared the letter from the Employer which claimed that this case was none of the BCLB's jurisdiction as BILL 35 and not the Collective Bargaining process was the determinant in this case. As no court, including the Supreme Court of Canada (Chief Justice Lamers (d) / Beverley McLachlin / Cory), failed to rule this matter back to arbitration as so ordered by the court when the Employer failed to return employment as recommended, I was left in limbo which is a direct challenge to the basic notion of finality and hence judicial system credibility.
7) In 1995 when nothing was transpiring from the Employer, I took them to B.C. Supreme Court under Spencer j. whom had a choice: either change the should return employment to must return employment of Justice Southin in 1986 with all terms of the agreement to apply for employer abandonment of the court order to re-arbitrate or direct the matter to re-arbitration as earlier ordered by the court. The original arbitration favouring the School Board was quashed with the government-appointed arbitrator being labeled 'patently unreasonable'. He had converted 16 new hires into 16 lay-offs adding my own as the necessary 17th knowing full well that I was the only lay-off in June of 1985. The arbitrator further claimed that the Board had a short-fall of $500,000 justifying his decision according to BILL 35 conditions. That amount turned out later to be a surplus in the same amount. The courts wasted no time in throwing out the 'ability to pay' as past history elsewhere showed how this aspect could be gamed.
8) Spencer j. did neither. While no question as to the role of the Union was raised, he ducked out by saying that this was a Union matter which only the Union could resolve on my behalf.
9) This exclusion of a Union client from a legal point of view places an end to the Union movement in Canada. What client, it needs be asked, is going to hold Union membership, with the threat of a 'sweetheart deal' - as was the case here - holding over them. Keep in mind, here that the Employer argues that this is a non-Union matter.
10) Unfortunately, B.C. judges bought into Spencer's Union application until 2013 by which time they were fully aware of the existence of a 'sweetheart deal'. In 2013, to thwart yet another Supreme Court of Canada appearance, Associate Deputy Justice of the B.C. Appeal Court, A. Cullen, expelled me from the B.C. Justice System for reasons best known to himself. (see web 'CULLEN CREED' with my rebuttal).
11) No judge in ON,QC,SK,Federal Court - and there are many - will concede that I have no legal forum in B.C. creating a constitutional crisis of mammoth proportions. Nor will they order disclosure; the meeting notes of the School Trustees in June of 1985 in which a massive fraud is alleged by me. Without these two features, court judgments - usually accusing me of frivolous & vexatious behaviour - are built on sand.
12) On one occasion in ON, the Employer launched a case claiming that, as the Respondent, they did not owe me any money. Justice McKinnon ignored that central tenet and chose to dismiss the case because I was being frivolous and vexatious. The good judge emphasized his point by creating not one but two judgments without drawing a connection between the two; one on April 23-2014 and a second one on September 15-2014 used only in a hearing under Justice Scott laid by me whom, in turn, declared a 'Stay of Proceedings' thus barring my approach to the ON Appeal Court. While Hicks, Morley et al dropped their representation of the Employer due to egregious behaviour on their part, the McKinnon Order went on to plaque courts in QC and SK. Bottom line? The Canadian Justice System imploded.
13) The dichotomy face by both the Employer and Court, is that both are desperate for a finality of this issue. The Employer would gladly pay compensation (currently at $10 million 'taxpayers dollars') as long as they have a court order which the court won't give them as the central media question would be as to why it took the court so long to act? For the courts, they have exhausted all their dirty tricks although with MacLachlin in charge of the SCofC, I expect 'The Last Hurrah'. P.M. Tudeau will not escape these shenanigans nor will any successive 21st century Prime Minister.
14)Currently, the SCofC is willing to hear my case on some most egregious Appeal Court actions under Chief Justice Beverley MacLachlin whom looms large in this story of judicial abuse.
15) This story of systematic judicial abuse is no longer a matter for the courts or oversight bodies. It places the matter squarely in the executive powers of Prime Minister Justin Trudeau whom, to date, believes doing nothing is an option. If he doesn't act soon to curtail the powers of Chief Justice Beverley MacLachlin, his legacy will be one of cover-up where the individual (and hence democracy) has been sacrificed for the benefit of 'the Old Boy's Club'. To be sure, this case is not merely a Canadian story as we see Donald Trump in the U.S. challenging the dinosaur ways which benefit the rich and powerful at the expense of individuals and the nation at large.