The court looked at the fact that the society made no remittances to CRA, CPP, or EI for Gerling and Papa-T paid for its own office space and paid for its employees. Finally, the management services agreement between the society and Papa-T made clear that there was to be no employment relationship between the society and Gerling.
Another point which arose in this case was whether additional damages would be awarded because the society alleged cause in terminating the contract and the court found no cause existed. Courts will often award additional damages, called Honda damages, for unproven allegations of cause. On this point, the court noted that unproven allegations of cause will not normally give rise to such additional damages unless there is real bad faith on the employer’s part.
The appeal court disagreed, noting that comparable employment does not mean identical employment. It means “a comparable position reasonably adapted to abilities,” the court found. Since the job Mene was offered was a senior management job with equal or greater compensation, that was enough to end her claim for further severance when she turned it down.Article content
The court reviewed Mene’s litigation conduct and concluded that Mene had “dredged the waters looking for anything and everything it can say which will make Ms. Humphrey look bad — even things that its own case showed was irrelevant.”Article content