‘This is what our justice system is for’, CERB Appeal: HR Reporter

A B.C Court of Appeals has recently overturned a ruling regarding employee CERB payments and wrongful dismissal damages. The B.C Court decided that ultimately, CERB payments should not be deducted from an employee’s wrongful dismissal damages after termination.

A Vancouver employment lawyer at Samfiru Tumarkin LLP, and counsel for the employee in question spoke to Canadian HR Reporter on the recent ruling.

“Sometimes what it really comes down to are these broader concepts of justice and what’s fair in the circumstance,” Mood stated. “It should serve to remind us that that is what our justice system is for – to ensure that we’re not getting bogged down and considering what’s fair in the circumstances.”

They go on to explain that the Court of Appeal’s ruling spoke to the importance of employer policy decisions and how employers should engage with their employees.

“The overall concept of fairness and justice are really grappled with in these public policy considerations – at one point, Chief Justice Bauman [of the B.C. Court of Appeal] says that it just feels wrong that an employer should effectively get this set-off for its own breach of contract,” the lawyer says. “An employer shouldn’t receive taxpayer-funded subsidies for its breach of contract, especially when it comes from a program that was implemented and designed to help employees.”

The state that the court also took into consideration the current situation many unemployed individuals were in during the initial roll-out of CERB.

“What I found really interesting about this decision was that there was consideration by Chief Justice Bauman about CERB and the context in which it was rolled out,” says the lawyer. “What everybody was going through in March of 2020 to September of 2020, just how uncertain that time was and how so many people were worried for their jobs and putting food on the table – Bauman said it’s hard to imagine, even if they get to keep that money, that anybody would honestly look at that and say they’re in a better position.

Ultimately, the lawyer believes this recent decision will have a great impact on future court decisions regarding wrongful dismissal and deducting CERB benefits.

“Most of the decisions that have dealt with the issue of the deductibility of CERB have really been focused on this entirely speculative exercise of whether or not the government is going to require the CERB payment to be repaid, and Chief Justice Bauman in this appeal said that this is a completely fruitless exercise,” they say.

“The government gave an employee money and as of now they don’t require repayment – that’s something between the governmental authorities and the employee.”