The head of Walmart Canada, unthinking, called the Galea case ‘so unique it is a Harvard case study in the making’ (para 80).
It is, but not for Walmart’s reasons. On first impression Galea is a standard case of executive employment dismissal, in the lower range (8 years), where it could be said that some reasonable effort was made to accommodate the displaced employee.
What the case actually stands for, inter alia, is: a rupture of the long standing Keays v Honda principle that contracts, including employment contracts, are not the arena for punitive Whiten v. Pilots Insurance Company (2002 SCC 18) and aggravated damages.
Yes they could be achieved. But the exception proves the rule. The level of facts required to achieve aggravated or punitive damages (Whitten) was, for all intents and purposes, not practical for everyday contract law cases.
The court of appeal reduction of jury punitive damages in the associated case of Boucher v. Walmart (from $1M to $100,000) (para 299) told lawyers what the message was on punitive damages in contract.
The more important result in Galea is that a new instrument can be applied for non-production in the litigation process. Up to Galea, the party pursuing production (it’s always the plaintiff in employment cases) chased the opposing party for documents and production. Like the coyote and the roadrunner, the coyote was generally always chasing, seldom getting.
The handful of contract production contempt cases are the exception that proves the rule. Business Development Bank v. Cavalon Inc [2016] O.J. No. 5700, Sycor Technology v. Kiaer [2015] O.J. No. 491, ITrade Finance v. Webworx Inc. [2005] O.J. No 3492
Previous to Galea, the court that frowned upon non-production litigation tactics might speak to costs. Inadequate to the purpose of dis-incentivizing non-production.
Emery J. qualified those ‘cost’ issues at para 234. Now we have Emory J. saying that the non-production by Walmart (a very typical collection of employer non-productions) speaks to ‘bad faith’ (para 235) and opens the door to ‘moral damages’.
And the Court of Appeal is okay with it.
Galea v Walmart Canada Corp. 2017 ONSC 245
