Decision 75796
Full Text of Decision 75796
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Summary:
The claimant sued his employer for wrongful dismissal and eventually settled his claim out of court for a total amount of $10,000.00. The claimant had also received a vacation pay and a payment in lieu of notice. The Commission determined that the moneys received constituted earnings and allocated the amounts. This resulted in an overpayment of $5,230.00. The claimant appeal the decision, the only issue under appeal was the allocation of the $10,000.00 settlement. The agreement did not provide any breakdown of the reasons for which the moneys were paid. In the absence of legal fees paid by the claimant, fees which could be subtracted before allocation, the full $10,000.00 must therefore be allocated. The appeal is dismissed.
Decision A0392.07
Full Text of Decision A0392.07
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Summary:
The claimant was discharged on August 9, 2005 following a mass layoff that took place at one of the Tembec plants. On September 24, 2005 the claimant signed a document entitled «Receipt, Release and Settlement», which indicated specifically that in exchange for severance pay, the latter would agree to waive his layoff rights and terminate his employment with Tembec. The Commission allocated the severance pay in accordance with Regulation 36(9) and (10) effective from the end of employment: August 7, 2005. The Umpire, in supporting the decision of the BOR, concluded that the severance pay made out to the claimant had been paid in exchange for forfeiting layoff and reinstatement rights and that it had to be allocated as provided by Regulation 36(19)(b).
The Court, unlike the BOR and the Umpires, found that the severance pay could not be merged with a payment carried out to waive a layoff right or reinstatement right while it was, in the case at hand, solely a layoff right. In federal law, reinstatement right is the right of an employee to resume work following an unjustified discharge, if the reinstatement is granted to that employee. The Umpire and the BOR incorrectly enforced the applicable legislation, namely paragraph 36(19)(b) instead of subsections 36(9) and (10) of the Regulations.
other summary
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| earnings |
severance pay |
definition |
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| earnings |
Monies By Reason of Separation |
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Decision 53702A
Full Text of Decision 53702A
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Summary:
After filing a grievance for wrongful dismissal, claimant received $25,000 as a settlement. The agreement referred to the amount as a retiring allowance in recognition of her 18 years of service. Based on the wording of the agreement, the BOR determined that the amount was not earnings. Held by Umpire that the term "retiring allowance" was inappropriate and appeared to have been selected to insulate the claimant from allocation and repayment of benefits. The legal principle is firmly established that compensation for wrongful dismissal to compensate for loss of salary or wages is earnings under the EIA.
Decision A-0520.01
Full Text of Decision A-0520.01
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Summary:
After 18 years, claimant left her employment because of health problems. She was awarded a settlement equivalent to 24 months for wrongful dismissal. An appropriate rule of thumb to fix a period of damages for wrongful dismissal was to award one month for each year of service. Claimant claimed that the additional 6 months was for the mental duress she had been subjected. Based on these facts, the Umpire ruled that the extra 6 months should not be considered as earnings and not be allocated. The Court found that it was open for the Umpire to make that decision and summarily dismissed the Commission's request for judicial review.
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Decision 51759
Full Text of Decision 51759
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Summary:
See summary indexed under FCA A-0520.01
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Decision A-0567.99
Full Text of Decision A-0567.99
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Summary:
Part of the settlement for wrongful dismissal paid to the claimant included 1 500$ for job search expenses and 2 500$ for job training expenses. Relying on the decision in Jean Renaud, CUB 17849, the Commission considered these expenses as income to be allocated since they had not actually incurred. Umpire ruled that the principles enunciated in the Renaud case were not absolute in their terms and that they were reasonable expenses which the claimant would eventually incur. The Court agreed with Umpire that as long as there is a genuine intent to so spend the expenses, it would be too restrictive to insist that in every case there must be clear evidence that such costs have been "actually incurred".
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Decision A-0693.99
Full Text of Decision A-0693.99
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NOTE: See summary of facts indexed under CUB 46132. FCA stated that it cannot be said that an amount paid to an employee for giving up his right to go back to his former position has been "earned by labour" or has been "given in return for work done". If a settlement encompasses both an acceptation of lost wages and a renunciation of a right to reinstatement granted by the appropriate authority, only the former constitutes "earnings" to be allocated. Matter returned to BOR for redetermination.
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Decision 46132
Full Text of Decision 46132
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Claimant filed a wrongful dismissal complaint and obtained from Novia Scotia Department of Labour an order of reinstatement. The order was appealed by the employer but the day before the hearing a settlement was negotiated where the claimant gave up his right to be reinstated in return for a lump sum of $35,000. The Commission considered the settlement to be earnings and to be allocated. Both the BOR and the Umpire accepted the claimant's point of view and ruled that the monies paid were not payable by reason of a lay-off or separation but rather in respect to an order for reinstatement.**NOTA: The Commission agreed that the Umpire misinterpreted the notion of "right of reinstatement" and requested a judicial review from the FCA.
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Decision 42598A
Full Text of Decision 42598A
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Summary:
See summary indexed under FCA A-0567.99
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Decision 42078
Full Text of Decision 42078
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Umpire decided that the claimant had met the burden of proof stated in the Walford decision to the effect that the damages paid by the employer did not constitute income as defined in the Act. In the case at hand, the claimant showed that the damages paid by his employer were not income since the amount received was broken down as damages for anxiety, moral suffering, loss of reputation, legal costs, job searches, travel costs and moving costs. The Commission did not provide anything to counter the established evidence.
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Decision 33512
Full Text of Decision 33512
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Claimant received $26,245 as ex gratia payment upon termination. Termination did not result from misconduct or anything of that nature but rather from mutual incompatibility. Umpire characterized it as a "nuisance payment" and allowed the claimant's appeal. Commission appealed to the FCA.**NOTE: The Commission concluded that the Umpire erred in fact and in law when he found that the moneys paid as ex gratia were not earnings. Claimant failed to submit any evidence to support his allegation that the ex gratia payment was payable for a reason unrelated to the loss of his employment.
Decision A-0572.95
Full Text of Decision A-0572.95
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The Board found as a fact that the $15,000 settlement represented claimant's equity in the firm. Claimant joined the firm on the basis of obtaining capital, instead of earning income at a rate he was capable of earning elsewhere. Open to the BOR to findas it did. Decision upheld by Umpire and FCA.
Decision 28759
Full Text of Decision 28759
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Summary:
Refer to: A-0572.95
Decision 27115
Full Text of Decision 27115
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Refer to: A-0231.95
Decision A-0231.95
Full Text of Decision A-0231.95
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Based on evidence, BOR determined that a sum of $2,000 be allocated for mental distress. Umpire found that it was reasonably open to the BOR to make this finding. FCA found no reviewable error: matter of fact for BOR to determine on the evidence as to the various components of the settlement.**NOTE: The FCA endorsed the four principles set out in J. Renaud (CUB 17849). Elements other than loss of income can be included in a settlement. However, the claimant must bring forward evidence that there were various components to the settlement before the BOR can proceed to apportion any monies.
Decision 28457
Full Text of Decision 28457
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Held that the settlement was not grounded in the employment relation and did not arise out of it. It was related to the loss of a house, loss of a job prospect and slanderous and defamatory remarks made after dimissal. As a consequence, the monies were not earnings for UI purposes.
Slanderous statements made by several officers of the employer after dismissal. No attempt was made by the parties to deny this, so claimant's evidence in this connection should have been accepted and given full weight. The documents provided tend to corroborate his version, at least by implication.
Decision 28232
Full Text of Decision 28232
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Summary:
Nature of payment made related to wrongful dismissal. Such a factual issue must be resolved, not by giving a party the benefit of the doubt, but by determining whether the party bearing the burden of proof (the claimant) has proved his case. The Board erred in law by not applying the correct test.
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| board of referees |
errors in law |
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Decision 26828
Full Text of Decision 26828
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Summary:
The settlement makes no explanation as to what the monies were for. Claimant argues that the reason for this is that the Ontario Human Rights Commission would not want to have it in print that it was compensation in the form of damages for a breach on its part of the Act which it was to enforce.
Decision 26203
Full Text of Decision 26203
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It is clear from case law that the CEIC is in no way bound by agreements made between an employee and employer. It is entitled to look at the circumstances surrounding the payment on separation and determine whether it was in fact earnings regardless of what the parties claim the payment was for.
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Decision 26150
Full Text of Decision 26150
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Held that, based on the Board's finding of fact, part of the settlement was paid for defamation of character. Thererefore, only a portion of the monies is to be ignored. Earnings assessed at 70% (20 weeks) by Umpire. Legal fees to be deducted in the same proportion of 70%.
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Decision 20773B
Full Text of Decision 20773B
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Summary:
As per the settlement, the payment is made as a compromise to terminate controversy and not as an admission of liability. Held that this is an ordinary release for wrongful dismissal and the monies are deemed to be loss of income according to the jurisprudence. The Board erred in law.
Decision 22877
Full Text of Decision 22877
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Summary:
Refer to: A-0582.93
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grounds of appeal |
without regard for material |
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Decision A-0582.93
Full Text of Decision A-0582.93
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Summary:
As per the Umpire, part of the damages were paid to relocate claimant after dismissal. The statement of claim did not contain any such reference. An amount paid by a defendant to settle an action cannot be deemed to have been paid in settlement of claims different from those asserted in the action.
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grounds of appeal |
without regard for material |
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Decision 23983
Full Text of Decision 23983
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While the prayer for relief was split under many headings, the judgment or minutes of settlement do not set out the claim for relief under which the amount is awarded. It would be a matter of pure speculation on my part as the final court document does not purport to apportion the global amount.
Decision 23801
Full Text of Decision 23801
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The onus is on claimant to demonstrate that the settlement was for something other than lost wages and that fact must be clearly demonstrated on the record, such as in the text of the settlement agreement itself. Here, there was no way of knowing for sure. Burden upon her not discharged.
Decision 23441
Full Text of Decision 23441
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Summary:
It is true that the statement of claim filed by claimant in the action also included claims with respect to damages other than for loss of income. However it was not demonstrated that the settlement was designed in whole or in part to compensate claimant for matters other than loss of income.
Decision 22886
Full Text of Decision 22886
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Held that a settlement stemming from an action that claimant initiated under the Alberta Individual Rights Protection Act and compensating her for lost wages was earnings even if she was told by a CEIC officer prior to the settlement that Human rights settlement was not earnings.
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| reconsideration of claim |
errors by Commission |
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Decision 22638
Full Text of Decision 22638
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Summary:
Letter submitted subsequent to Board's decision tending to show that settlement monies were paid as discrimination damages. The letter falls short of enabling a trier of fact acting judicially to determine that the settlement amount was for anything other than compensation for loss of employment.
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| reconsideration of claim |
new facts |
definition |
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| umpires |
jurisdiction |
evidence new |
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Decision 21934
Full Text of Decision 21934
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There is no doubt that the amount was paid in the context of a wrongful dismissal claim but that does not dispose of the issue. They may be not compensation for lost wages subject to another allocation or to no allocation at all. Any resulting presumption can be rebutted.
Claimant took wrongful dismissal action. As settlement, the parties agreed that she be provided with a consulting contract for $8,900. This amount she received but her services were not used. Nothing indicates that this was a sham. Board's decision not perverse nor capricious.
Decision 21504
Full Text of Decision 21504
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Summary:
According to the acknowledgement, the sum of $15,000 is paid as retirement allowance recognizing both long-term service as well as loss of employment and is invested in an RRSP. No evidence to the fact that the amount concerned anything other than loss of salary.
Decision A-0639.90
Full Text of Decision A-0639.90
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Out-of-court settlement: separation allowance of $9 000 paid relieving the employer from any further and future claims. Claimant tried to distinguish his case from WALFORD by saying that his dismissal which arose from sexual harassment was warranted.
Decision 18313
Full Text of Decision 18313
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Summary:
Refer to: A-0639.90
Decision 18005
Full Text of Decision 18005
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Summary:
Sold his own company on condition of being hired by it for the next 3 years. The purchaser broke the contract after one year. According to the Board, the amount of $30000 was paid for breach of sales contract, not the work contract. Question of fact.
Decision 16369
Full Text of Decision 16369
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Summary:
Refer to: A-0155.89
Decision A-0155.89
Full Text of Decision A-0155.89
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Summary:
Complete and final settlement for any claim whatsoever for lost wages, compensation or damages, according to which $15 357 of the total amount of $20 000 was severance pay. The total amount of $20 000 is earnings. Upheld in FC without comment.
Decision 17572
Full Text of Decision 17572
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Summary:
When claimant pursued a court action and later received an out-of-court settlement, it significantly altered the nature of the monies. Had she initially received severance pay it would have been exempt at that time. When she accepted a settlement, it was no longer an exception.
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interest |
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| earnings |
income |
not insurable |
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Decision 16371
Full Text of Decision 16371
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Summary:
$25000 discharge which takes into account all vacation pay, paid holidays, sick pay, retroactive wage adjustments and other benefits; the insured waives all current or future claims. The total amount is deemed to be earnings.
Decision A-0334.88
Full Text of Decision A-0334.88
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Summary:
Monies paid to claimant in lieu of severance pay following settlement of a claim under the Quebec Labour Code. These are in fact monies paid in compensation for loss of wages or salary. Upheld by FC without comment.
Decision 14779
Full Text of Decision 14779
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Summary:
Refer to: A-0334.88
Decision 15800
Full Text of Decision 15800
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Summary:
If claimant entered into negotiations with employer to be paid a sum in recognition of long years of service or as a fair notice period for termination, then monies come under 58(9) or (10). If it is compensation for lost wages due to wrongful dismissal, they come under 58(5).
Decision 15507
Full Text of Decision 15507
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Summary:
Whether a retiring allowance arising out of out-of-court settlement for 1 specific week falls under reg. 58(5) or (9). The distinction is that 58(9) contemplates voluntary payments by an employer, and 58(5) a payment which has been forced upon the employer. 58(5) applies here.
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| earnings |
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allocation |
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| earnings |
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job search and relocation expenses |
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Decision 14374
Full Text of Decision 14374
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Summary:
Out-of-court settlement in the form of increased pension benefits. This is income arising out of employment but not a retroactive payment of or in lieu of wages under reg. 58(5). Contributions locked in and cannot be withdrawn by claimant. Reg. 58(15) applies.
Decision A-1290.83
Full Text of Decision A-1290.83
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Summary:
Claimant was paid 26 weeks' salary, 13 held as severance pay by the Umpire. The Board was entitled to consider whole monies as compensation for wrongful dismissal due to termination without notice, out-of-court settlement and legal fees paid. The Umpireerred under s.95.
