In a recent decision, Jensen v. Schaeffler Canada Inc., the Ontario Superior Court of Justice reduced an employee’s pay in lieu of notice award for wrongful dismissal by the amount of WSIB loss of earnings received during the notice period.
This is not a new legal development in Ontario. The Ontario Court of Appeal came to the same conclusion in 1997, in White v. Viceroy Fluid Power International Inc.; though, that decision was under the precursor to the current Workplace Safety and Insurance Act, 1997 (then the “Worker’ Compensation Act“). Strangely, the Ontario Superior Court in Jensen did not reference White, which remains binding authority in Ontario, and instead relied on an Alberta Court of Appeal decision from 1985.
Also of note, the court found that a 15 month notice period would have been appropriate, but extended that period to 18 months, concluding that the employee’s physical limitations would make securing new employment more difficult. However, as the combination of statutory notice and severance and WSIB benefits received exceeded the amount of damages she was entitled to receive for the wrongful dismissal claim, she was owed no further pay in lieu of notice.
