The Deductibility of Damages Received Under Disability Plans: Sylvester v. British Columbia
(1997) 31:2 University of British Columbia Law Review 353-361
11 Pages Posted: 20 Jul 2013
Date Written: 1997
In Sylvester v. British Columbia, the Supreme Court of Canada held that disability benefits received by an employee during the notice period are deductible from damages received for wrongful dismissal. The Supreme Court of Canada held that absent an intention to provide otherwise, there will be a presumption in favour of the employer that disability benefits will be deducted from damages for wrongful dismissal. This article examines difficulties with the Sylvester ruling that may serve to narrow its applicability in future cases. First, the question of intention of parties to an employment contract is often indeterminable. Second, the principle of equality between employees, cited as a reason to deduct disability benefits from wrongful dismissal claims by the court, overlooks the fact that employees who receive disability benefits are not on an equal footing with their counterparts who are working. Third, the Supreme Court of Canada failed to discuss McKay in its ruling, thereby neglecting the importance and role of the duty to mitigate. Finally, it is unconvincing to hold that unless employers are able to deduct disability benefits, they will be altogether deterred from establishing disability plans.
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