In a choice rendered on September 1, 2022 , the Courtroom of Enchantment dominated that incapacity insurance coverage advantages obtained by an worker shouldn’t be deducted from the indemnity in lieu of discover of termination, even when the employer funded the insurance coverage plan.
On this case, Ms. Girard, a supervisor who had been employed by the Caisse Populaire Desjardins de Saint-Raymond-Sainte-Catherine (hereinafter the “Caisse”) for practically a 12 months, was despatched dwelling by its new normal supervisor. On the time of this occasion, on April 17, 2014, Ms. Girard had 35 years of seniority with the Desjardins Group.
A number of months later and as she sank right into a deep melancholy, Ms. Girard discovered that she was being dismissed.
Ms. Girard obtained incapacity advantages for a interval of 28 months after which began a brand new job in a distinct sector with a lot decrease pay.
Earlier than the Quebec Superior Courtroom, Ms. Girard alleged that she had been dismissed with out simply and enough trigger, abusively and unlawfully and deliberately violating her status, dignity and honour. She claimed an indemnity in lieu of discover of termination of 36 months, in addition to substantial ethical and punitive damages. Ms. Girard additionally claimed that the Caisse ought to pay her extra punitive damages for having dismissed her whereas she was affected by a incapacity, particularly melancholy, for which she was on depart on the time of her dismissal.
Thus, earlier than the Superior Courtroom, Ms. Girard claimed a complete quantity of $2,516,530.10.
The Superior Courtroom first concluded that Ms. Girard’s dismissal was not for trigger.
As for the willpower of the indemnity in lieu of discover of termination, the Superior Courtroom granted a 24-month indemnity, taking into consideration Ms. Girard’s age, her excessive hierarchical degree, her 35 years of steady service with Desjardins Group and the diminished employment prospects sooner or later. This 24-month indemnity represents a complete of $234,502, taking into account the bonuses and wage will increase that Ms. Girard would have obtained throughout this era. Because the incapacity insurance coverage plan in impact offered for the price of premiums to be shared between the employer (80%) and the worker (20%), the Courtroom deducted from the 24-month indemnity the quantity equal to the advantages obtained by Ms. Girard between February 16, 2015 (the date of her termination) and August 21, 2016 (the date the advantages ended), akin to the portion of the funding offered by the Caisse. Moreover, the Caisse didn’t exhibit that Ms. Girard had breached its obligation to mitigate her damages. Consequently, the Courtroom established the quantity of severance pay at $129,709.
With respect to the ethical damages claimed by Ms. Girard, the Superior Courtroom decided that the April 17, 2017 motion of Ms. Girard’s supervisor in instantly sending her dwelling, in a way that was as terse because it was humiliating, was premature, cavalier and brutal. His subsequent silence for a number of weeks demonstrated a whole lack of respect and empathy on his half for Ms. Girard and in so doing, the Caisse demonstrated negligence and abusive conduct. Given the info and circumstances of this case, the Courtroom awarded a complete of $75,000 to compensate Ms. Girard for the hurt completed to her status, honour and dignity and for the difficulty, stress and inconvenience attributable to her wrongful and abusive dismissal. Nevertheless, the Courtroom rejected Ms. Girard’s declare for punitive damages, because the proof didn’t reveal any illegal intention on the a part of the Caisse to hurt Ms. Girard’s status or to terminate her employment due to her melancholy.
The Superior Courtroom was additionally of the opinion that Ms. Girard had established the deserves of her declare within the quantity of $6,565.01 in recognition of her 35 years of service with the Desjardins Group, to which needs to be added the sum of $1,000 for session and orientation charges and the sum of $11,130.02 for accrued and unpaid trip time on the date of her dismissal.
Because of this, the Superior Courtroom ordered the Caisse to pay Ms. Girard a complete of $213,404, together with $129,709 for a 24-month indemnity in lieu of discover of termination, $75,000 for non-pecuniary damages and $18,695 for sure bills and the lack of advantages associated to her employment.
2. The Courtroom of Enchantment Determination
Unhappy with the Superior Courtroom’s resolution, each events, by means of enchantment and cross-appeal, sought the intervention of the Courtroom of Enchantment.
The Courtroom of Enchantment first thought of the size of the discover interval and confirmed the choice of the Superior Courtroom to take note of Ms. Girard’s seniority inside the Desjardins Group in assessing the size of the discover interval. The Courtroom of Enchantment upheld the 24-month indemnity in lieu of discover of termination, stating that, in mild of all of the circumstances, particularly Ms. Girard’s age (52), her 35-year profession with Desjardins Group and the excessive hierarchical degree of the place she held, a discover interval of 24 months was not exaggerated, despite the fact that it might appear beneficiant in mild of the precedents submitted by the Caisse.
You will need to notice that the Courtroom of Enchantment refused to substantiate that 24 months could be an absolute cap in Quebec on discover intervals, which in our view opens the door for the courts to contemplate longer discover intervals sooner or later.
As for the bonuses and wage will increase, the Courtroom of Enchantment held that they had been a part of Ms. Girard’s working circumstances and weren’t purely discretionary, despite the fact that they trusted the achievement of sure goals. Furthermore, Ms. Girard’s wage was at all times elevated underneath the motivation plan. Thus, the Courtroom of Enchantment rejected the Caisse’s declare that Ms. Girard was not entitled to the bonuses and wage will increase offered for in her contract.
The Caisse argued earlier than the Courtroom of Enchantment that the Superior Courtroom erred in ordering it to pay $75,000 in non-pecuniary damages in reference to the April 17, 2014 assembly, as this occasion would represent a work-related accident inside the which means of the Act respecting industrial accidents and occupational ailments. The Caisse added that there was no proof that it dedicated an abuse of proper or a definite fault and, within the different, that the quantity of damages was exaggerated. The Courtroom of Enchantment agreed that Ms. Girard couldn’t declare from the Caisse, within the type of damages, what she might have obtained from the CNESST for the bodily and ethical damage that her discharge from work on April 17, 2014 prompted her and because of which her incapacity started. Nevertheless, Ms. Girard retained her rights and treatments underneath the widespread legislation primarily based on a “separate reason behind motion”, on this case the termination of her employment contract on February 16, 2015, and any separate fault dedicated by the Caisse that might not represent an work-related damage. Because of this, the Courtroom of Enchantment diminished the quantity of the non-pecuniary harm award to $20,000.
With respect to the deduction of the incapacity insurance coverage advantages obtained by Ms. Girard, the enchantment focuses on the appliance, or not, of article 1608 of the Civil Code of Québec (the “Code”) to Ms. Girard’s state of affairs. This text gives that “[t]he obligation of the debtor to pay damages to the creditor is neither diminished nor altered by the truth that the creditor receives a profit from a 3rd particular person, because of the damage he has suffered, besides as far as the third particular person is subrogated to the rights of the creditor”.
In response to the Courtroom of Enchantment, the Superior Courtroom shouldn’t have deducted the incapacity insurance coverage advantages obtained by Ms. Girard throughout this era from the indemnity in lieu of discover on the grounds that the Caisse participated within the financing of the insurance coverage plan. On this regard, the Courtroom of Enchantment wrote:
 With respect on the contrary opinion, I’m of the view that article 1608 C.C.Q. applies at any time when an worker receives incapacity advantages from an insurer, no matter whether or not the employer pays all or a part of the price of the insurance coverage premiums. This employer contribution is a part of the worker’s phrases and circumstances of employment and shouldn’t be confused with the incapacity advantages paid by the insurer. To conclude in any other case could be to remodel incapacity insurance coverage for the advantage of the worker into insurance coverage that might insure the employer in opposition to the pecuniary penalties of its obligation to present affordable discover of termination (a form of legal responsibility insurance coverage).
 […] It could be completely different if the employer paid not the insurance coverage premiums however the wage or a part of the wage within the occasion of incapacity. In that case, the worker wouldn’t obtain a profit from a 3rd get together and article 1608 C.C.Q. wouldn’t apply. […] [our emphasis].
The Courtroom of Enchantment additionally defined that this precept doesn’t apply to “self-insured” employers who’re paying incapacity insurance coverage advantages themselves.
Thus, based on article 1608 of the Code, the employer’s obligation to pay an indemnity in lieu of discover of termination is neither mitigated nor modified by the truth that the worker receives a profit from a 3rd get together insurer. The Courtroom of Enchantment acknowledged that it isn’t correct to talk of double indemnity, as the incapacity advantages will not be compensation for an damage suffered, however quite are the topic of the insurer’s obligation underneath the insurance coverage plan. Accordingly, the Courtroom of Enchantment elevated the indemnity in lieu of discover of termination by the quantity deducted by the Superior Courtroom as incapacity advantages paid by the insurer.
Lastly, the Courtroom of Enchantment rejected Ms. Girard’s declare for “the substitute worth of her pension fund”, since this argument was tantamount to denying the precise to unilaterally terminate the employment contract conferred by article 2091 of the Code. The Courtroom of Enchantment additionally rejected Ms. Girard’s declare for employer contributions to the Régime des rentes du Mouvement Desjardins for the discover interval, because it was of the opinion that the proof introduced didn’t make it attainable to quantify this profit or this misplaced revenue.
Accordingly, the Courtroom of Enchantment diminished the compensation for non-pecuniary damages to $20,000, subtracted $11,130 to the indemnity in lieu of discover of termination for trip pay and elevated the indemnity in lieu of discover of termination to $203,185.
This resolution of the Courtroom of Enchantment confirms that incapacity insurance coverage advantages paid by an insurer shouldn’t be deducted from the indemnity in lieu of discover of termination, even when the employer funded the insurance coverage plan.
Nevertheless, the Courtroom of Enchantment clarified that this may not be the case if the employer didn’t pay the insurance coverage premiums, however quite the wage or a portion of the wage within the occasion of incapacity (i.e. underneath a self-insured plan). In such a case, deduction of the incapacity advantages paid by the employer from the indemnity in lieu of discover of termination could be applicable.
It needs to be famous that this resolution was rendered within the context of the Civil Code of Québec.