Most counsel believe that Keays cut back on Wallace although a minority (myself included) believe Keays greatly expanded the scope for Wallace like bad faith damages.
Regardless, the Court of Appeal has avoided deciding the impact of Keays on several occasions. Employment lawyers anxiously await the Court's guidance.
Today's decision in Slepenkova v. Ivanov, 2009 ONCA 526 continues this trend. The Court writes:
[5] In the third ground of appeal, the appellant argued that the trial judge erred in awarding Wallace damages in an amount equivalent to two months' pay to each of the respondents. With respect to the respondent, Slepenkova, we see no error. The trial judge made a specific finding that the appellant's pager message to other agents informing them "that [Slepenkova] failed to adequately perform her duties was unfounded and damaging to her reputation". In our view, this finding of fact was sufficient to sustain the Wallace award, even in light of the Supreme Court of Canada's decision in Honda Canada Inc. v. Keays (2008) S.C.J. No. 40, which was rendered after the trial judge's decision in this case.
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