People often err when looking at the amount of damages a court will award for wrongful dismissal. They sometimes presume that the maximum damage awards are set in stone. As the case we review below will demonstrate, there are times that the courts are so troubled by the conduct of employers that new records are set in damage awards.
So let’s talk about the firing of a Rabbi by a synagogue.1
Before we get into the specifics of the case, perhaps a little background would be of some assistance:
As a general rule in Ontario, an employer can fire an employee for any reason they want. The law only requires that upon termination without cause, the employer provides reasonable notice or pay instead of notice.2 Sometimes, courts find the behaviour of employers to be so repugnant that they punish them by awarding additional damages. It is cases like this that often set the new records for damages awarded.
As such, when most employment lawyers3 sit down with their clients and assess the merits of a potential wrongful termination case (both employees and employers), their minds inevitably turn to the notice period calculation. Though the calculation of a notice period in practice is more of an art than a science, there are various factors that contribute to the calculation of the same, and the three primary factors are usually: the employee’s age, length of employment, and the position with the company.
Extenuating circumstances however may serve to increase or decrease that length of time, and, accordingly, the quantum of damages received by the successful plaintiff.
David v. Congregation B’Nai Israel
This was the case in David v. Congregation B’Nai Israel. In 1969, a nascent Rabbi from Toronto named Joseph Ben David was offered a position with Congregation B’Nai Israel, the only synagogue in St. Catharines, Ontario. On June 12, 1969 he signed his first employment agreement with the synagogue.
Throughout the term of Rabbi Ben David’s employment, it was both the synagogue’s and the Rabbi’s intention that he be the religious leader of the synagogue for the long-term. This is notwithstanding the fact that there were boilerplate contracts signed. The Board of the synagogue assured the Rabbi that the synagogue wanted him to be their Rabbi for as long as he cared to be. After 26 years, the synagogue terminated the Rabbi’s employment.
In 1994, after 26 years of employment, the Rabbi was suddenly, and without warning, given written notice that the synagogue would not be renewing his employment contract at the expiration of its term, being August 1995.
Upon hearing this case, Justice Festeryga determined that aside from the Rabbi’s age (59), his length of employment (26 years), and his position with the employer (Rabbi and head of congregation), that the character of the Rabbi’s employment was “special” on account of his position in the community and his involvement in the lives, both spiritual and otherwise, of his congregants. Justice Festeryga also acknowledged that the Rabbi faced a restricted prospect of future employment, and that there was an element of vulnerability on the part of the Rabbi, and bad faith on the part of the employer synagogue.
As a result of the foregoing, Justice Festeryga ultimately decided that Rabbi Ben David was entitled to a notice period of 30 months, and payment for the same. Aside from this being a lot of money, what is important for lawyers to take note of is that a new threshold was set based on the specific circumstances of this case. There will certainly be times when different facts will inspire a Court to make greater (or lesser) damage awards.
In addition to the Rabbi’s damages for wrongful dismissal however, Justice Festeryga went one step further and awarded a significant sum of $20,000 to the Rabbi on account of punitive damages. Punitive damages are traditionally awarded for the purpose of punishment and deterrence under specific circumstances, and Justice Festeryga acknowledged that certain actions taken by the defendant subsequent to the Rabbi’s termination qualified as “cruel, abusive, insolent and hurtful to the plaintiff.”
Such action included terminating the employment of the plaintiff’s wife, as well as advising the Rabbi, when he came to synagogue to pray during the Jewish Festival of Sukkot, that his and his son’s presence at synagogue would not count toward the minyan (the obligatory quorum of 10 Jewish males necessary for a prayer service), and that he was no longer welcome in the synagogue, the only synagogue in St. Catharines.
This case set a record at the time for a court awarded notice period in Ontario, and paved the way for some recent cases in which notice periods over and above the once-maximum 24-months were awarded.
Recent cases with longer notice periods
Some examples of more recent cases, in which damages were awarded for over 24 months, are:
|CASE||AGE||LENGTH OF EMPLOYMENT (YEARS)||POSITION AT TIME OF TERMINATION||NOTICE PERIOD AWARDED (MONTHS)|
|Baranowski v. Binks Manufacturing Co. (2000)||54||29||President||36|
|George v. Imagineering Ltd. (2001)||54||23||President||30|
|Paterson v. DaimlerChrysler Canada Inc. (2005)||53||32||Upper Management||28|
|Lowndes v. Summit Ford Sales Ltd. (2006)||59||28||Lower Management||28|
|Cowper v. Atomic Energy of Canada Ltd. (1999)||60||35||Upper Management||27|
|Mastrogiuseppe v. Bank of Nova Scotia (2007)||48||28||Middle Management||26|
|Cardenas v. Canac Kitchens (2009)||43||27.5||Foreman/Supervisor||26|
It is important to recall that such extended notice periods are often the result of special circumstances, and despite the court’s apparent willingness to award damages in excess of 24 months, these are but 8 cases that break the mold.
There are numerous propositions of law that arise from David v. Congregation B’Nai Israel, and this review is just a short summary of the key points.
To employers: The traditional limit of a court’s discretion to award damages for wrongful dismissal is no longer, and judges are apparently more willing, in certain circumstances, to provide for employees whom they believe were wronged by their employers. Employers should act in good faith, taking into consideration the factors that a court will consider should a claim for wrongful dismissal arise.
To employees: Despite the Court’s apparent willingness to award damages in excess of the traditional 24-month limit, the above-mentioned cases are exceptions as opposed to the rule. It therefore remains important to discuss strategy, options, and expectations with your legal counsel prior to commencing formal legal proceedings. You must still make an effort to mitigate your damages, and remember that damages from a successful wrongful dismissal claim do not form a suitable substitute for long-term income.
- The case referenced, David v. Congregation B’Nai Israel, 1999 CanLII 14854 (ON CA) created a new higher threshold for awards in wrongful dismissal. Subsequently, the case with the highest award was Baranowski v. Binks Manufacturing Co. (2000). ↵
- There is a substantial difference between the minimum notice periods an employee is entitled to under the Employment Standards Act, 2000, and the common law. Ontario legislation provides that upon termination without cause, an employee is entitled to one week of severance pay and one week of termination pay for every one-year worked. Under common law, the amount awarded as notice can vary, depending on the employee’s position with the company, age at the time of termination, and length of employment. ↵
- Employment in this context is non-union employment. ↵