04.18.06

The recent OCA decision in Alcatel Canada Inc. v. Egan is thought by some to settle whether a plaintiff can double dip disability benefits and wages in lieu of notice. However, it is still an open question whether a plaintiff can establish his entitlement to both (as in McNamara v. Alexander Centre Industries Ltd.), based on evidence that he would have bargained for a higher salary were it not for the existence of a benefit package, including disability benefits, when he negotiated his employment contract. This seemed a very easy hurdle in McNamara. It fascinates me that the decision in Alcatel does not mention McNamara, although there is reference in paragraph 27 to a finding of the trial judge which engages the wording of McNamara: “[27] The trial judge found that it was not part of the contract of employment and that it could not be inferred that the parties had agreed that Ms. Egan would be entitled to receive both damages for wrongful dismissal and disability benefits…� This issue is not settled.