tag:blogger.com,1999:blog-8560894381298667267.post7228292564473298679..comments2023-10-25T00:48:14.046-07:00Comments on The Buchanan Ontario Workplace Law Blog: Court of Appeal Extends Goss Doctrine to Fixed Term ContractsUnknownnoreply@blogger.comBlogger4125tag:blogger.com,1999:blog-8560894381298667267.post-66409688808071533192016-05-01T10:14:59.542-07:002016-05-01T10:14:59.542-07:00I don't believe that the legal world actually ...I don't believe that the legal world actually questions the existence of conditions like CFS, chronic pain, fibromyalgia, etc. (My sense is that it's a small minority of medical experts who think that *all* such sufferers are malingering.) Whether or not a specific individual suffers from the symptoms is a question of fact - and a difficult question, because the symptoms are all non-objective.<br /><br />But my point is more about the propositions of law that these cases stood for: In Fidler, the SCC sought to streamline aggravated damages in contract law with Hadley v. Baxendale - as long as mental distress damages were reasonably foreseeable, they are compensable. In Honda, the SCC was concerned about the arbitrariness of Wallace damages, and brought them into the same Hadley v. Baxendale framework. It's about a streamlining with general principles of contract.<br /><br />A break of this nature, finding that the mitigation principle simply doesn't apply to fixed term contracts, is a huge step in the other direction.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-77245631551733296422016-05-01T09:32:18.409-07:002016-05-01T09:32:18.409-07:00mmm...both Fidler & honda involved soft health...mmm...both Fidler & honda involved soft health claims of mental distress / chronic fatigue syndrome etc. There is lot of scepticism that these are all real or involved malingerers. If its clear cut breach of contract accompanied by high handed conduct by an employer with overwhelming power (certainly not a small business) then I think sympathy of the court is triggered (see Boucher v. Wal-Mart) - even though the award was reduced - it was still significant.Sentahttps://www.blogger.com/profile/05694504227940953703noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-12693672929892677952016-04-25T11:15:31.269-07:002016-04-25T11:15:31.269-07:00You're right about employment law being 'c...You're right about employment law being 'contract law plus', so to speak, in many ways...but there have been a number of movements toward removing the various pigeonholes and streamlining it with first principles of contract law: Consider Fidler v. Sun Life and Honda v. Keays, as a couple of examples.<br /><br />There will always be some asymmetrical treatments which are rationally justified: Contra proferentum usually works against the employer; ESA interpretations usually work to the benefit of the employee, because statutory interpretation is purposive; etc.<br /><br />But general contract principles like mitigation need to be applied in a rational and consistent manner. I like to invoke the contrast between employment law and residential tenancies, because they're basically opposites when it comes to 'balance of power' issues: In employment law, the payee is generally regarded as needing protection; in residential tenancies, the payor is the one who we want to protect.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-7029049065991770762016-04-25T06:29:43.549-07:002016-04-25T06:29:43.549-07:00I guess people are not houses and employment law i...I guess people are not houses and employment law is not just contract law, but more. Perhaps the COA was pissed off about some moral issue about breaching the contract so they ignored the mitigation issue. Sentahttps://www.blogger.com/profile/05694504227940953703noreply@blogger.com