The following is a summary of significant cases argued by David Harris, as a Toronto lawyer, primarily on behalf of employee/plaintiff clients.
Trial and Appellate Counsel in Reported Cases of Consequence to the Profession
1. Counsel to plaintiff in Clark vs. BMO Nesbitt Burns at trial and Court of Appeal.
This was the first decision to award not only damages for wrongful dismissal but also the capital value of the book of business of the financial advisor. The company BMO Nesbitt Burns had fired the plaintiff and then assigned the plaintiff’s book of business to another advisor.
2. Counsel to plaintiff in McNamara vs ACIL at trial and in Court of Appeal .
This was also an important decision. It was the first case in Ontario to award wrongful dismissal damages, without offset for concurrent disability benefits. This was an argument based on the Supreme Court of Canada decision of Sylvester, which contemplated a contemporaneous award of wrongful dismissal damages plus, in certain situations, to allow for such an award without regard to disability benefits for the same time period. McNamara was given 22 months damages for wrongful dismissal and kept all his disability benefits for 2 years.
3. Counsel to plaintiff in Rasanen vs Rosemount in Court of Appeal.
This became the leading case on question of issue estoppel barring an employee from suing following an unsuccessful ESA complaint for the minimum statutory payment. Rasanen lost his complaint for this minimum sum and when he sued for the wrongful dismissal claim, the employer successfully defended this claim by arguing that the issue had already been decided and hence dismissed the case. Harris took only the appeal to the Ontario Court of Appeal which was decided in the employer’s favour, with one judge dissenting. The application for leave to the Supreme Court of Canada was dismissed. A differently constituted panel of the Court of Appeal later agreed with Harris’ submission in a subsequent case involving the same issue.
4. Counsel to plaintiff in Ribeiro vs Bank of Nova Scotia in a motion granting right to use discovered evidence to commence new proceeding against defendant disclosed by discovery process.
5. Counsel to plaintiff in Riberio vs. CIBC in the Court of Appeal increasing award of punitive damages of $10,000 to $50,000, then highest sum of punitive damages awarded in an employment case. The plaintiff was charged with criminal wrongdoing by the Bank and was acquitted of such charges. He later sued for wrongful dismissal and was awarded punitive damages. Today such conduct by an employer has resulted in punitive damages in the hundreds of thousands of dollars. This decision became a foundational stepping stone to these later awards.
6. Counsel to plaintiff in Skopitz vs. Intercorp Excelle Foods, the first trial decision awarding incremental damages for human rights violation committed by defendant employer.
7. Counsel to plaintiff in Galbraith v Acres International, a constructive dismissal case in which incremental damages were awarded for first time in Ontario, due to discrimination on account of age, affirmed by the Court of Appeal.
8. Counsel to complainant/plaintiff in Mathur vs. Bank Nova Scotia, ( affirmed on appeal in Federal Court ) in which plaintiff successfully showed no “discontinuance of a function” due to re-organization and was successfully reinstated plus lost wages to date of reinstatement and full costs:
9. Counsel to plaintiff in Marshall vs. Watson Wyatt, a decision of Ontario Court of Appeal setting aside punitive damage award of $75,000 awarded at trial by jury, upholding award of 9 months and 3 months incremental for bad faith conduct given to employee of one year. Total trial award was $516,000.
10. Counsel to plaintiff, an international figure skater celebrity and on-air broadcaster, in Toller Cranston vs. CBC, in which an incremental award was made for damages for loss of on air publicity. Cranston was fired because he was accused of being biased in his on air coverage of an American figure skater, Scotty Hamilton, whom Toller coached. The case was successful. Ironically the CBC lawyers never figured out that they had a defence to this case. Cranston was a member of a union and was not allowed to sue in civil court because of this. When the case came to Harris, the time for filing a grievance under the collective agreement had long since evaporated. CBC was too stupid to ever figure this out, thank goodness.
11. Counsel to plaintiff in Dunning vs. Royal Bank in which damages trial judge determined need for employer to act in good faith, referenced in Supreme Court of Canada decision in Wallace v United Grain Growers. Dunning had been employed by the Bank in Toronto and moved to Chicago on its request. The Bank had a very generous moving package which was allowed to Dunning when he was moved to the USA. When Dunning was terminated in Chicago, the Bank wrongly asserted US law applied, which would have allowed very modest severance pay. Dunning and his wife and children were also denied the Bank’s moving package to leave Chicago. Needless to say, the Bank lost big time but it took a trial to do this.
12. Counsel to plaintiff/appellant in successful appeal from wrongful dismissal award to Court of Appeal, which ordered reinstatement plus 10 years back pay in McCaw vs. United Church of Canada.
McCaw had been thrown out of his church in North Bay due to his evangelic form of worship. The Church did not use the proper hearing process to expel him. Harris challenged this and was ultimately successful. Over the 10 year period, unduly long as McCaw was required to use the slow Church internal appeal process first, McCaw paid not one cent in legal fees.
Significantly the Court of Appeal set aside the award of the trial judge who had simply awarded routine wrongful dismissal damages. Due to a subsequent Supreme Court of Canada decision, the law allowing for this type of remedy is no longer available.
When the decision was made, McCaw was then required to pay income tax at the highest marginal rate as the lump sum payment was significant. Harris advised against accepting the payment and instead having a further damage assessment to account for the higher taxes to be paid. The client resisted. Harris was correct in his view as later cases agreed with this new argument. McCaw’s damages would have at least doubled, had he paid heed to this advice.