Originally Posted by ACAV8R
IOW because the decision to order V&K reinstated was not precedent-setting, was a one-off, future litigants could not say, "You reinstated V&K so therefore, on the basis of Stare Decisis, legal precedent, you must order us to also be reinstated."
I agree. We are both saying the same thing. The precedent is not binding, so it cannot be used by future litigants to
force the Tribunal to arrive at the same outcome.
However, I believe that we must be very careful not to draw the incorrect inference from the decision, namely that this outcome will be an anomoly. There is nothing to stop the next Tribunal from arriving at the same outcome, nor is there any suggestion that it should not do so, given the same factual situation; in fact the opposite is true--all factors point towards the Tribunal arriving at the same outcome, especially regarding reinstatement.
With respect to reinstatement (as opposed to damages and recovery of lost compensation), nothing in the VK decision is dependent upon the factual circumstances of these two individuals. The termination, like all the following terminations, was based solely upon the collective agreement provision. That fact will not change. So, reinstatement of all those who wish it should logically follow in
all of the succeeding cases.
Damages and payment for lost compensation must be determined on a case by case basis, however, taking into consideration the nature of the discriminatory practice (violation of the exemption provision, versus Charter damages), mitigation, and other relevant factors specific to the individual litigants.
The bottom line is that no matter what the Tribunal said about this not being a "legal precedent" the implications are substantial. The dam will not just get a bigger crack, it is about to burst.