This latest decision released yesterday reveals that the deductibility of the Canadian Emergency Response Benefit (“CERB”) when calculating wrongful dismissal damages is still unsettled.
In this case, the court dismissed the case, but as all Judges are supposed to do, an assessment of damages was undertaken just in case there was a successful appeal. When the court went through the exercise of quantifying damages, the issue of the deductibility of the CERB collected by the former employee arose. However, the court couldn’t continue with its analysis because the employee never provided any details on how long he drew CERB or how much money he received from that source.
The court also noted that there was a lot of conflicted case law on the point, and none at an appellate level:
CERB DEDUCTED
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- Hogan v. 1187938 B.C. Ltd., 2021 BCSC 1021;
- Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112;
- Yates v Langley Motor Sport Centre Ltd., 2021 BCSC 2175
CERB NOT DEDUCTED
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- Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 99;
- Snider v Reotech Construction Ltd., 2021 BCPC 238(B.C.Prov.Ct.);
- Slater v Halifax Herald Limited, 2021 NSSC 210(N.S.S.C.);
With this, the judge pointed out that it was “apparent that no appellate court in Canada has addressed the issue in any reported case to date.” The court was also concerned that counsel did not address the issue of the deductibility of CERB payments through any comprehensive submissions. As such, the judge felt that “it would be inappropriate and unfair to determine the question of the deductibility of CERB payments from the damages without having the benefit of full submissions by counsel.”
Given that the judge could not quantify the damages with precision, the judge instead took the position that if his decision was upset on appeal, it would likely be the case that the matter would have to be referred back to a trial where the plaintiff could then provide a full accounting of the CERB payments he received, and full legal submissions could be made by counsel.
Miller v Ontario Potato Distribution Inc., 2022 ONSC 1490
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1490/2022onsc1490.html