News & Events

We know that non-competition agreements are generally not enforceable in the employment context in Ontario if they were entered into after October 25, 2021, except in a handful of situations.  However, that still leaves: the rest of Canada; agreements prior to the magic date; those handful of exceptions; and of course, independent contractors.  In short,

In March 2024, the Court of Appeal for Ontario dismissed an employer’s appeal from the judge’s decision in Teljeur v. Aurora Hotel Group, 2023 ONSC 1324 (“Teljeur”).  The Honourable Justice Michael K. McKelvey of the Ontario Superior Court of Justice awarded seven months’ pay in lieu of notice and $15,000 in aggravated damages to a dismissed employee.

I was invited recently to speak at the HRPA Conference on the issue of bad faith damages.  I was focusing on the history of these awards and quantum. Then on May 2, 2024, the Ontario Court of Appeal released a decision in Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332 which upheld an aggravated

In January 2024, the Ontario Superior Court of Justice ruled in Ratz-Cheung v. BMO Nesbitt Burns Inc., 2024 ONSC 161 (“Ratz-Cheung”), that the employer had not established just cause for dismissal after asserting after-acquired cause. The Court found that the employee breached the employer’s Code of Conduct but viewed the employee’s misconduct as a lapse in judgment

On March 21, 2024, Bill 149 – Working for Workers Four Act, 2024 received Royal Assent. Initially announced on November 14, 2023, Bill 149 introduces various legislative changes including the following amendments to the Employment Standards Act, 2000 (“ESA“): As of March 21, 2024: Work performed during a trial period will now fall within the

The Canadian Human Rights Tribunal (“CHRT” or “Tribunal”) ruled in Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 (CanLII), that misgendering and deadnaming an employee who specifically and repeatedly asked to have their gender identity respected is a discriminatory practice that is contrary to the Canadian Human Rights Act (“CHRA”). The Tribunal affirmed

In a decision of the Honourable Mr. Justice Cavanagh released January 2, 2024, Boyer v. Callidus Capital Corp., [2024] O.J. No. 41, 2024 ONSC 20, the Court held that an employer had not clearly communicated the restrictive terms of its policies with respect to vacation carry-over, deferred bonus payment and the exercise of stock options, and

We assist clients manage all kinds of risks associated with employment. Legislative compliance is one such risk. Let’s address frequently neglected obligations of an employer that we are rarely asked about.  It is fall, almost Halloween, and we are not here to scare you, but how about an HR check-up? If you are a provincially-regulated

THE QUESTION The company I work for is moving its head office. That will increase my commute time to 80 minutes from 20, plus additional costs to pay for public transit. The ability to walk to work was a factor in choosing this job. Am I entitled to any compensation for the office relocation? I

On May 29, 2023, for the first time in 19 years, the Office of the Privacy Commissioner of Canada (“OPC”) updated their guidance concerning privacy in the workplace and the application of the Personal Information Protection and Electronic Documents Act (“PIPEDA”). The guidance clarifies employee privacy rights, constrains employee monitoring and clarifies practical tips for

The Ontario Court of Appeal has now issued a decision confirming the law with respect to workplace harassment investigation reports, wherein the investigator /author of the report, will not be liable for defamation for the findings in the report. In the case at bar, the employer, through legal counsel, retained the service of a workplace

In a recent decision of the Ontario Divisional Court, the Court dismissed an application for judicial review of an administrative decision by the Bluewater District School Board (“the Board”). In Gillies v Bluewater District School Board 2023 ONSC 1625 (CanLII), the applicant sought to quash the decision together with a declaration that the decision unjustifiably violated her

In a recent decision of the Ontario Court of Appeal, the court considered a case of pandemic layoff and whether 9 months after the layoff occurred, the employee could be said to have condoned the layoff. The Court of Appeal relied upon one of its earlier decisions in McGuinty v. 1845035 Ontario Inc., 2020 ONCA

Can I be fired for time theft? Is my employer allowed to electronically monitor me? The quick answer to both questions is yes. While the standard for establishing a termination for cause is high, there are circumstances in which a court will uphold such a decision by an employer to terminate an employee without notice—typically,

Since being released, Ontario courts have applied Waksdale v. Swegon North America Inc., 2020 ONCA 391 (“Waksdale“) and held that where a ‘for cause’ provision violates the Employment Standards Act, 2000 (“ESA“), all clauses in the employment contract are void and unenforceable, thus entitling employees to full common law notice. This was no different in

As we start off the new year it is a good time to review your practices and think of adopting some new ones.  What are the ways to do what you do better?  Here are a few thoughts on what we see businesses missing or getting wrong with great frequency. Not updating policies Your Workplace

While the 2021 ESA amendments relating to non-competition agreements are likely to limit the circumstances in which such agreements can or will be used in the future, non-competition agreements that were in place prior to the ESA amendments remain unaffected. The legal enforceability of non-competition agreements that pre-date the ESA amendments continue to hinge on

In Luckman v. Bell Canada, 2022 CHRT 18, the Canadian Human Rights Tribunal (“Tribunal“) ordered the employer, Bell Canada (“Bell“), to pay more than $120,000 in damages to a former employee who was recklessly terminated by Bell. The Tribunal held that the respondent employer discriminated against the complainant contrary to section 7 of the Canadian Human Rights Act, RSC

The Ontario Court of Appeal in the 2019 decision of Dawe v. the Equitable Life Insurance Company of Canada held that only exceptional circumstances would support the award of a notice period in excess of 24 months in relation to the termination of someone’s employment. Recently they had occasion to review that decision.  At trial

After a series of extensions, deemed infectious disease emergency leave (“deemed IDEL”) will expire on July 30, 2022, and paid infectious disease emergency leave (“paid IDEL”) is set to expire on July 31, 2022. Deemed IDEL Recap Subject to certain exceptions, the Ontario government instituted temporary relief from Employment Standards Act, 2000 (“ESA”) termination and

With the summer months here and many workplaces and employees focused on upcoming time off, it is important that workplaces ensure that they are up to date on new workplace requirements in Ontario. Right to Disconnect Policy For the first year of this new requirement, employers that employed 25 or more employees on January 1,

It is not a criminal act to record conversations where you have the consent of one of the parties, typically by the one who is doing the recording.  However, we now have a case out of British Columbia finding, criminal or not, it was an invasion of privacy and was cause for the termination of

On April 5, 2022, the Government of Ontario announced that the general minimum wage rate will increase to $15.50 per hour on October 1, 2022. This increase will represent a $0.50 increase from the $15.00 per hour minimum wage which was implemented on January 1, 2022. The general and specialized minimum wage rates that will

The Working for Workers Act, 2021 Recently, the Ontario government introduced significant changes to workplace laws, intended to provide a wide array of benefits to employees in the province.  On December 2, 2021, Bill 27: Working for Workers Act, 2021 (“Workers Act“) received Royal Assent. Two of the most notable changes are: i) a prohibition on

In a recent decision of the Ontario Superior Court of Justice, the principles in the now infamous Waksdale v. Swegon North America Inc., 2020 ONCA 391 decision were applied to a fixed term contract, striking out a termination clause where the ‘for cause’ termination provision was broader than permitted by the Ontario Employment Standards Act, 2000

On December 17, 2021, the Canada Labour Code was amended to include the following: Bereavement Leave In the event of the death of an immediate family member or a family member, employees are entitled to a leave of absence from employment for up to ten days. The leave may be taken during the period that

An unintended consequence of the COVID-19 pandemic was a move to remote working and more flexible work arrangements. For many, this shift has blurred the lines between home and office, as remote working and technology continue to make it easier to work from almost anywhere. As a result, the need to develop policies dealing with

On October 25, 2021, the Government of Ontario introduced Bill 27, Working for Workers Act, 2021 (“Bill 27”) to amend, among other things, the Employment Standards Act, 2000 (the “ESA“). If passed, Bill 27 and the amendments it includes, would significantly alter the employer-employee relationship. The changes proposed by Bill 27 include: New Part VII.0.1 – Right to Disconnect

What is the hot issue in every workplace right now?  Vaccine policies of course. We have yet to see a court or administrative tribunal definitively answer whether vaccine policies violate health privacy laws or employee privacy generally or whether an employer’s implementation of these types of policies constitute constructive dismissal and/or a form of workplace

In late 2019 the Workplace Safety and Insurance Appeals Tribunal (“WSIAT” or the “Tribunal”) issued a landmark decision that took away an employee’s right to sue their employer for damages with respect to chronic mental stress flowing from workplace harassment and an inadequate employer response to same, resulting in a claim for constructive dismissal.  The

The COVID-19 Period has been further extended in Ontario and is now slated to end on January 1, 2022. Infectious Disease Emergency Leave (IDEL) is extended to January 1, 2022. The three paid sick days in relation to COVID-19 related matters are extended to December 31, 2021. After Infectious Disease Emergency Leave ends, employees who

To date, there has been very little caselaw dealing specifically with the implementation of mandatory COVID-19 vaccination policies in the employment context. In the circumstances, employers and employees alike have no choice but to navigate the complex legal issues that arise from any attempts to reduce the risks associated with COVID-19 transmission and infection in

In a recent decision which considered the impact of the pandemic on a termination of employment, the Honourable Justice Vella held that the consideration of the fourth Bardal factor, namely ‘availability of similar employment having regard to the experience, training and qualifications of the employee’ led to consideration that there were challenging circumstances in terms

The Pay Equity Act, S.C. 2018, c. 27, s. 416 (“Pay Equity Act” or the “Act“), was passed by Parliament and received Royal Assent on December 13, 2018. It will come into force on August 31, 2021. It will apply to federally regulated public and private sector employers with an average of 10 or more

In recent years, and in particular over the course of the last 18 months or so, courts have varied and/or clarified their position on a number of key employment law issues. In Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290, the employee successfully brought an application for judicial review of a decision of the

The COVID-19 Period has been further extended in Ontario and is now slated to end on September 25, 2021 Infectious Disease Emergency Leave (IDEL) is extended to September 25, 2021 After Infectious Disease Emergency Leave ends, employees who were placed out of active service as a result of the pandemic are no longer on that

For good reason, many employers are beginning to think about how their workplace will look a few months from now.  They are considering how to assure employee safety and are wondering what impact the vaccination roll-out will have on masking and social distancing requirements over the summer and by early fall of 2021. In short,

In a seminal decision released on March 18, 2021, the Human Rights Tribunal of Ontario has issued a finding supporting a claim of gender-based discrimination in relation to the unconscientious perception of the applicant as a woman and the gender bias which was inherent in her male-centred workplace (Cybulsky v. Hamilton Health Sciences, [2021] O.H.R.T.D.

In Sharma v. Toronto (City), 2020 HRTO 949 (CanLII), the Applicant alleged that By-Law 541-2020 (the “By-Law”), which requires businesses and other establishments that are open to the public to adopt a policy that members of the public are not permitted entry to, or otherwise remain within, any enclosed space unless they are wearing a

While cases before the courts will wind their way through slowly, labour arbitration hearings can move at a quicker pace. Some COVID issues have already been decided in the collective bargaining context. Of note is a recent arbitration decision in the federal context which upheld the termination of a worker for attending at work and

Over the past months we have all seen just how quickly the rules and regulations in response to COVID-19 have and can change in the interest of protecting public health and safety.  On January 4, 2021, with immediate effect, Toronto’s Medical Officer of Health instituted additional operational guidelines for employers. The new operational requirements are

Update: On the evening of December 17th the Ontario Government announced the extension of Infectious Disease Emergency leave to July 3, 2021. To view the press release, please click here. While the COVID-19 Period is slated to end January 2, 2021, employers will still need to be compliant with all orders of public health and

Schweizer v. The Corporation of the Town of Whitchurch-Stouffville (“Schweizer v. Whitchurch-Stouffville”), provides procedural reminders with respect to the enforcement of settlements entered into in matters before the Human Rights Tribunal (“HRTO”) of Ontario. The applicant, a former employee of the respondent, alleged discrimination with respect to her employment.  The parties entered into Minutes of

Facts The complaining Employee was employed as a housekeeper at a hotel in Niagara Falls, Ontario where she was allegedly harassed and taunted by her colleagues and supervisor for having an unpleasant odour and for other matters related to a diagnosed medical condition. While still working at the hotel, the Employee filed a human rights

In June 2020, the Ontario Human Rights Tribunal ruled in favour of an applicant who was the victim of a racial slur during the course of being served at a local pizza franchise. The applicant had just ordered lunch with his friends from high school when one member of the group accidentally cracked a window

Hot Topics in Employment Law Koskie Minsky’s employment lawyers will illuminate the most recent and important issues in the areas of: Human Resources Checkup Employment Law Termination Clauses Workplace Investigations Protocol Employer and Employee Obligations Union Role Aftermath of Covid-19 Pandemic The program is eligible for CPD 2.3 hours October 26, 2020 Virtual Seminar only

It has been a tumultuous year in the land of employment law in Canada.  What had become viewed as rock solid termination provisions began to get thrown out at the end of 2019 in the Court of Appeal decision in Andros v. Colliers Macaulay Nicolls Inc.  and 2020 has seen several other decisions, including Waksdale

In our June 3, 2020 Blog titled O. Reg. 228/20- Ontario Government Effort to Avoid Deemed Terminations and the Onslaught of Constructive Dismissal Claims Under the ESA, we provided you with details of a critical amendment to the Employment Standards Act, 2000(“ESA“),  which prevented temporary layoffs due to COVID-19 from automatically becoming a permanent job

Waksdale v. Swegon North America Inc.: Unenforceable “For Cause” Termination Provisions Render “Without Cause” Termination Provisions Null and Void Over the past few years, the Ontario Court of Appeal has released a number of decisions considering the enforceability of termination provisions. For the most part, the recent jurisprudence has focused on the necessary wording and

The inequality of bargaining power in the employment relationship has now been a long recognized fact by Canadian Courts.  Now, whether or not the Uber drivers forming the ‘class’ pursuing action against Uber are employees or not has yet to be determined. The action seeks to declare them employees and seeks damages for infringement of

In the recent decision of Graham v. Enterprise Rent A Car Canada Company representing Enterprise, Alamo, and National Car Rental, the applicant alleged that the respondents discriminated against her on the basis of her race, colour, place of origin, and disability in the area of goods, services and facilities contrary to the “Code”. The applicant

On Friday May 29, 2020, by O. Reg 228/20, Infectious Disease Emergency Leave (“Regulation”), the Ontario provincial government enacted an important new regulation under the Employment Standards Act, 2000 (“ESA”), which materially amends the ESA for the period applying retroactively from March 1, 2020 until 6 weeks after the state of emergency is extinguished (the

On March 17, 2020, the Ontario government declared a state of emergency in response to the COVD-19 pandemic.  Since then, a number of provincial and federal measures have been put in place to assist employers and employees, and also to keep Ontarians safe, during these challenging and unprecedented times. Our collective new reality and employment

A great deal has changed in the past 30 days. COVID-19 has resulted in businesses being required to take economic measures which only weeks before would have never been contemplated: layoffs, salary cuts, even full closures by order of provincial governments. How long will this go on? What will it do to our economy? The

In Yenovkian v Gulian (“Gulian’), the court recognized for the first time in Ontario, the privacy tort of publicly placing a person in false light. The civil claim was brought as a cross-claim in an action that proceeded together with a family law trial. The defendant mother sought damages against her ex-husband of $150,000.00 for

Here’s the take away up front: have your employment contracts reviewed at least annually.  Over the last few years, in particular, the Ontario Court of Appeal has been weighing in on termination clauses in employment contracts. Andros v Colliers Macaulay Nicolls Inc. is another example of the Court reviewing an issue with respect to the

At Koskie Minsky LLP we recognize the increasing demands being placed on our clients in an ever growing digital age.  Over the years we have advised clients with respect to issues of privacy and data collection, but as this area becomes ever so more complex we have taken steps to formalize our efforts in order

In a decision released at the end of 2019, the Ontario Court of Appeal affirmed that the two year limitation period for wrongful dismissal claims arising out of the Limitations Act is not subject to a sliding scale based on when the employee learns that the action may succeed but rather, when the cause of

On October 23rd, 2019, the Ontario government announced new changes that will be made to Rule 76 (Simplified Procedure) under the Rules of Civil Procedure as well as changes to the monetary value of claims that can be brought in Small Claims Court. The purpose of these changes is to expedite court proceedings and to

Arleen Huggins will be speaking at the The Advocates’ Society “Equality, Diversity and Inclusion for Litigators” Program on October 3, 2019. The Program will take place at The Advocates’ Society in Toronto. Arleen will be on a panel about “Knowing your Witness: Working with Diverse Backgrounds and Skillsets”. For more information about the Program, please

Arleen Huggins will be speaking at the OBA’s Labour and Employment Law Program (Ontario Chapter): “Ending the Employment Relationship” on October 29, 2019. The Program will take place at the OBA Conference Centre in Toronto. Arleen will be speaking on the topic of “When You Don’t Mean to: Constructive Dismissal.” For more information about the

In a recent decision of the Ontario Court of Appeal[1], the Court confirmed that 37 years of service in a senior management role does not constitute “exceptional circumstances” to justify a notice period over 24 months. Michael Dawe (“Dawe”) was employed with the Defendant, The Equitable Life Insurance Company of Canada (“Equitable Life”) for 37

The Ontario Court of Appeal has upheld the award of the trial judge finding an employer liable to pay $100,000 in punitive damages and a further $25,000 in aggravated damages, in addition to 19 months’ damages for wrongful dismissal. The employer alleged cause for the employee’s termination and in response to the employee’s claim for

The employee had worked for his employer for 14 years in a manual position in the mailroom. The benefit plan, including long term disability (“LTD”), was self-funded by the employer but administered, adjudicated and paid by Sun Life Assurance Company (“Sun Life”).  The employee received 2 years of short term disability but his request for

If an employer terminates an employee for cause, an employer has no obligation to provide an employee with notice of termination. It is important to remember that establishing cause to terminate an employment relationship is not easy. The existence of cause will depend on the particular facts of each case. A lawyer from Koskie Minsky

In the Ontario Court of Appeal’s first decision of the year, Heller v Uber, 2019 ONCA 1, the court held that an arbitration clause in the terms that individual drivers are required to “accept” to become drivers for Uber breached the prohibition on contracting out of the Employment Standards Act (ESA), and was otherwise unconscionable

What will an Ontario Court do when faced with a California based employee who is seeking to enforce rights pursuant to a contract against his American employer, for termination of his employment?  If his employment contract provides that the contract would be governed by, and construed in accordance with the laws of the Province of

Last week, the Ford Government tabled the Restoring Ontario’s Competitiveness Act, 2018, more commonly known as Bill 66. Debate on the Bill will not begin until February 19, 2019, but given the substantial PC majority in the House, it is likely that some version of the Bill will receive Royal Assent in the spring of

Summary and Overview On October 23, 2018, the Ontario government tabled Bill 47, Making Ontario Open for Business Act, for first reading in the legislature. On November 21, 2018, Bill 47 passed third reading, and received Royal Assent the same day. Bill 47 has made many important changes to various pieces of legislation governing employment

Summary and Overview On October 23, 2018, the Ontario government tabled Bill 47, Making Ontario Open for Business Act, for first reading in the legislature. Bill 47 makes many important changes to various pieces of legislation governing employment and labour relations in Ontario, principally the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act,

Privacy and Technology in the Workplace. Koskie Minsky’s employment lawyers will illuminate the most recent and important issues in the areas of: Employment and privacy legislation New regulations in the area of cyber security and data breach The privacy tort Computer use policies and monitoring Other employment privacy issues Marijuana – testing, safety and privacy

When we act as counsel to employers, we can be confronted with policies and practices which often have been in place for a long time and may turn out to not actually be in compliance with employment standards requirements. If we work together, we can attempt to find a route typically to become compliant and

Nancy Shapiro will be addressing the “O Cannabis! Weed in the Workplace” online seminar on July 17, 2018.  The seminar will focus on “the challenges which legalized marijuana will pose for both unionized and non-unionized environments.”

The Michaels v. Red Deer College decision of the Supreme Court of Canada from 1976 held that employees pursuing wrongful dismissal damages have a duty to mitigate their damages.  Mitigation earnings reduce the liability of the employer for damages during the notice period to the extent of those earnings.  But what if the terminated employee

The Smoke-Free Ontario Act, 2017[1] (“SFO”) comes into force on July 1, 2018, repealing and replacing the Electronic Cigarettes Act, 2015[2] and the Smoke-Free Ontario Act[3] (collectively, the “Repealed Acts”). Most notably for employers, the SFO contains new posting requirements for signs and prohibitions regarding the use of medical cannabis. The SFO expands on the

On January 1, 2018, a number of amendments to the Employment Standards Act, 2000 (“ESA”) came into effect under Bill 148. These amendments required substantial updates to employer practices, policies, and handbooks. One of the amendments was to the public holiday pay formula in Part X of the ESA.  However, the new rules and formula

The issue of what a court will do when faced with a claim for variable compensation in the form of a Carried Interest Plan, much like a profit sharing plan, in which profit was recognized some 3-7 years following the initial investment, came before the Honourable Mr. Justice Monahan recently. In a decision released in

Effective April 1, 2018, the equal pay amendments to the Employment Standards Act (“ESA“) flowing from the Bill 148 Fair Workplaces, Better Jobs Act officially came into force in Ontario. These equal pay provisions prohibit any employer paying different rates of pay to employees because of a difference in employment status (eg. full-time, part-time and/or

The British Columbia Court of Appeal, in a decision released this past summer, took the opportunity to remind employers that precision in drafting restrictive covenants (those of non-competition in particular) is a necessity. In this particular case, an optical company operating retail stores and eye examination clinics had a non-competition covenant within contracts with its

On December 15, 2017 the Supreme Court of Canada (“Supreme Court”) delivered a significant decision in the area of human rights law. According to the Supreme Court, employers are not the only ones who are prohibited from committing discriminatory harassment against employees. British Columbia Human Rights Tribunal v. Schrenk concerned claims of discrimination in the

In an unprecedented decision released by the Court of Appeal recently, the Court has found the use of the word “probation” in an Employment Agreement has the meaning that during the stated period of time, employment may be terminated with payment only as is required by the Employment Standards Legislation. Notwithstanding requirements that contracts be

The Court of Appeal has again ruled on the issue of terms in employment contracts which purport to limit an employee to minimum notice under the Employment Standards Act, 2000 (“ESA”) upon termination. In North v. Metaswitch, the Court of Appeal held that it is improper to use a severability clauses to remove portions of

In a recent decision of the Ontario Superior Court of Justice, a judge ruled that a working notice period does not apply to an employee who is on disability leave from his employer. In this case, a 43 year old employee with 18 years’ service commenced a disability leave in January, 2016 for a non-work

Arleen Huggins will be speaking at the 18th Annual Employment Law Summit on October 19, 2017. The Summit will take place at The Law Society of Upper Canada in Toronto. Arleen will be speaking about “New Ideas, New Workplace Legislation, What Does the Future Hold?” To learn more about the program, please click here.

An Interactive Panel Discussion of Hot Topics in Employment Law Koskie Minsky’s employment lawyers will illuminate the most recent and important issues in the areas of: Drug and alcohol policies & testing Mental health issues in the workplace Attendance management Establishing just cause for termination October 25, 2017 20 Toronto Street Conference and Events 8:30

The recent decision of the Ontario Court of Appeal found that a single act of dishonesty by an employee at the time of completing an employment application could give rise to cause for the termination of his employment. The employee working in the area of atomic energy sought to become employed as an industrial safety

When an employee is wrongfully dismissed from her employment, she is required to seek alternative employment to mitigate, or reduce, the damages she incurs. The income earned from alternative employment is normally deducted from the damages the former employer owes to the employee. In a recent decision, Brake v. PJ-M2R Restaurant Inc., the Ontario Court

Calling someone an independent contractor does not necessarily make them one, especially where a worker’s role has shifted over time. An employer learned this lesson the hard way when the British Columbia Supreme Court ordered it to pay the plaintiff, who the Court classified as a dependant contractor, damages in the amount of 12 months’

  Summary The government of Ontario has tabled legislation to make major changes to labour and employment law in the province. The proposed changes include: Raising the general minimum wage to $15 an hour by January 1, 2019. Changing various features of union certification and first contract dispute resolution procedures, including: extending card-based certification to

On a Summary Judgment motion, the Ontario Superior Court of Justice awarded an Employee $7,500 in damages for mental distress together with damages of $17,076 in lieu of lost income for the Employer’s failure to provide the Employee with a revised notice of termination. The Employee, a 72 year old man, worked as a security

The decision of The Honourable Mr. Justice Miller, of the Ontario Superior Court of Justice, released April 18, 2017, considered a claim for defamation by an employee in relation to a reference given by his former employer to a potential future employer. This could have been the first case in which an employer was found

Does an employer’s failure to pay a $300,000 bonus constitute constructive dismissal? Not according to Chapman v. GPM Investment Management, a recent decision from the Ontario Court of Appeal.  Although there was no doubt that the employer had breached the employment contract by failing to pay the bonus, this conduct did not substantially alter an

In an Alberta Court of Queen’s Bench decision, an employer that accepted an employee’s notice of resignation was found to have wrongfully terminated the employment relationship because the resignation was conditioned upon negotiating a fair severance package. The employee worked for the employer in Calgary, Alberta and later in Madagascar for four years and eight

In Evans v. Paradigm Capital Inc., Justice Gans of the Ontario Superior Court of Justice addressed a senior executive’s duty to mitigate following her constructive dismissal, and specifically whether she was required to accept an alternative position from the employer to mitigate her damages. The Employee was hired by the Employer, an institutional investment dealer,

On February 9, 2017 the British Columbia Supreme Court released its decision in Ram v Michael Lacombe Group Inc., which made national headlines due to egregious facts and the quantum of damages awarded to a low-level employee. The Employee worked as a cook at Burger King for over 24 years when she was terminated without

In a recent case, a Judge of the Ontario Superior Court of Justice outlined the appropriate procedure to be used where summary judgment is awarded to a Plaintiff seeking a notice period which would not expire until after the summary judgment motion. The Plaintiff, a 54 year old Project Manager and Senior Water Resources Engineer,

In a recent decision, Misetich v. Value Village Stores Inc., the Ontario Human Rights Tribunal (“HRTO” or “the Tribunal”) clarified the correct legal test for discrimination on the ground of family status. The decision recognizes that the requirements for establishing discriminatory treatment based on family status should be the same as those for other grounds

The Court of Appeal has re-affirmed the principle arising from the series of employment insurance broker cases of J. G. Collins Insurance Agencies, H.L. Staebler and Shafron, all of which addressed the interpretation of non-solicitation covenants in employment contracts. In Donaldson Travel Inc. v. Murphy, the employer was a travel agency. The employee moved to

In a recent decision of the Superior Court of Justice, a 48 year old employee with nine years of service was awarded $25,000 for human rights damages and $60,000 for moral damages, in addition to a notice period of ten months. The employee was subjected to repeated physical and verbal harassment by her boss. She

A 58 year old employee of the City of Toronto was constructively dismissed, following 25 years of service in primarily senior project management roles. She was found to be entitled to 26 months’ notice. The City did not appeal the finding of constructive dismissal or the notice period. It did, however, allege that the trial

In a recent decision, the Human Rights Tribunal of Ontario confirmed that employees who sign releases in exchange for a termination package may have difficulty invalidating the release if they wish to bring a claim against their former employer. An employee with nearly 14 years’ service in human resources at an oil and gas industry

On August 9, 2016 the Ontario Court of Appeal released two sets of reasons in wrongful dismissal cases dealing with employees’ entitlement to receive bonus payments over a reasonable notice period. In both Lin and Paquette the employees were terminated without cause and had a right to pay in lieu of reasonable notice of their

Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, received royal assent on March 8, 2016. The legislation is a result of commitments made in “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” released by the Ontario government in March

The Supreme Court of Canada recently overturned a controversial decision of the Federal Court of Appeal (Koskie Minsky LLP Employment Blog February 9, 2015). Specifically, the Federal Court of Appeal held that “Unjust Dismissal” provisions pursuant to sections 240 to 246 of the Canada Labour Code, R.S.C. 1985, c.L-2 (the “Code“) only provided non-unionized federally

In a decision released May 31, 2016, the Ontario Court of Appeal made clear that the passage of time shall not in and of itself be treated as a bar to the order of reinstatement. In this case, the employee had been off on medical leave for 2½ years when she began seeking to return

Sponsorship of caregivers from overseas is an increasingly common choice for families seeking affordable child care, particularly where there are two or more children in a household. In a recent case from Ontario, the Court considered basic statutory and common law employment principles in the caregiver context, where the parties were also related. The employer

The Ontario Superior Court of Justice recently concluded that an employer’s imposition of a layoff in the absence of a contractual clause permitting a layoff can be treated as a repudiation of a fundamental term of the employment contract even in circumstances where an identifiable recall date is provided at the time of the layoff.

Termination during the probationary period without payment or notice, often thought to be an automatic entitlement of employers, is always subject to the caveat “except for a discriminatory reason”.  That was the expensive lesson for one Ontario employer recently. The company was a distributor and the employee hired as a delivery truck driver.  He was

Arleen Huggins will be speaking at the The Osgoode Certificate in Human Rights Theory and Practice Program on May 5, 2016. The program will be held at Osgoode Professional Development’s Downtown Toronto Conference Centre. Arleen will speak about “Evidence in Human Rights Matters/Remedies”. For more information about the program, please click here.

In the 2014 Budget, the Ontario government set out its commitment to establishing and launching a province-wide pension plan, intended to build upon the Canada Pension Plan (“CPP”) and provide a predictable source of retirement income for life. Notwithstanding significant debate and some opposition by stakeholders, on April 14, 2016, the government proceeded to implement

The Ontario Human Rights Tribunal has recently issued an interim decision confirming the effects of a miscarriage can meet the definition of “disability” under the Human Rights Code. Wenying (Winnie) Mou (the “Employee”) worked for MHPM Project Leaders (the “Employer”).  In January of 2013, the Employee suffered a serious slip and fall accident which kept

In a recent decision of the Ontario Superior Court of Justice, the Court held that conduct resulting in criminal charges being laid against an employee does not constitute “just cause” for termination where the conduct is unconnected to work. The employee, a 67 year old labourer employed since 1998, was terminated in February 2015 for

When acting for an employer we are often asked whether an employee can be sued for damages that the employer sustains as a result of an employee’s negligence.  The answer is no.  A case recently decided by the Alberta Court of Queen’s Bench, Shamac Country Inns Ltd. v. Sandy’s Oilfield Hauling Ltd., does not purport

In a recent decision, the Federal Court of Appeal (the Court”) upheld a decision that found an employee who requested an accommodation in order to breastfeed her child during working hours failed to meet the test for prima facie discrimination.  The particular facts of this case lead to the Court finding that the employee’s decision

The Ontario Superior Court recently held that a car dealership, Wright Auto Sales Inc. (the “Employer”), wrongfully dismissed one of its managers with two years of service (the “Employee”), when it terminated the Employee’s employment for consuming alcohol during the work day and allegedly being under the influence of alcohol while at work. A few

A recent case shows how an employer’s conduct both during employment and in the manner of dismissal may be compensated – and deterred – in court proceedings. The Employer company carried on business as a recruiter for focus groups.  For over 15½ years the Employee worked with the Employer, initially in an administrative support role,

The Court of Appeal for Ontario has now definitively addressed the issue of whether an employer’s financial circumstances are relevant to the assessment of an employee’s common law reasonable notice period. In this case, three employee school teachers who were employed on a series of one-year contracts for thirteen, eleven and eight years respectively, appealed

The Ministry of Community Safety and Correctional Services (the “Employer”) terminated the employment of a correctional officer (the “Employee”) with approximately seven years of service after it was discovered that she failed to immediately disclose that she had been charged under the Criminal Code with impaired driving while off-duty. The Employer took the position that

Arleen Huggins will be speaking at the Law Society of Upper Canada’s (LSUC) 4th Annual Human Rights Summit on November 30, 2015. The event will take place at the Donald Lamont Learning Centre, 130 Queen Street West in Toronto. Arleen will speak about “Damages for Human Rights Violations Outside the Human Rights Process’. To view

In the recent case of Bellehumeur v Windsor Factory Supply Ltd, the appellant suffered from various “disabilities”, which had been reported to the respondent, and for which the respondent was found to have provided reasonable accommodation.  The appellant was thereafter terminated for cause after he made violent threats towards another employee.  The appellant alleged that

The employee was hired in 2010 into a senior sales position with IBM (the ’employer’).  Although the employee had access to office space, his role was substantially based out of his home. At the time of his hiring the employee disclosed to the employer that he had a privately held business which designed and sold residential

The Employee began working for Sony of Canada Ltd. (the “Employer”) on June 9, 1989.  His employment was terminated on March 31, 2015 just prior to his 26th anniversary of continued employment with Sony. As at the termination date, the Employee was 45 years old working as the Director of Sales in the Professional Solutions

Koskie Minsky filed materials to seek leave from the Supreme Court of Canada (“SCC”) to appeal the Nunavut Court of Appeal’s (“NUCA”) decision in a case that could impact employees across Canada. This leave application, if successful, will allow the SCC its first opportunity to consider whether an employee who raises concerns about her conditions

Nancy Shapiro will be speaking at the 16th Annual Employment Law Summit on October 29, 2015. The event will take place at the Donald Lamont Learning Centre, 130 Queen Street West, Toronto. Nancy will be speaking about Termination for Cause.

The Ontario Superior Court of Justice, in a decision rendered by Pollak J. released April 16, 2015, has recognized that a 65 year old employee with over 40 years’ service with his employer was “uniquely situated”; a relevant consideration in deciding the length of notice upon termination of employment. The employee had been employed as

In a recent decision, the Ontario Superior Court summarily held that an employee that failed to report to work over a period of 8 months, relocated his residence from New Brunswick to Ontario without approval, and failed to follow the policies and procedures applicable to his short term disability claim had abandoned or resigned from

A defendant/employer unsuccessfully tried to stymie a claim by an employee that it was vicariously liable for violence committed by another one of its employees. The plaintiff employee (“Employee”) was a maintenance worker with a theme park (the “Employer”).  The Employee alleges that in the summer of 2013 her supervisor (the “Supervisor”) made sexual advances

In a recent decision of the Ontario Superior Court of Justice, the Court awarded damages for wrongful termination to an employee based upon the customary salary increase the employee would have received had he been actively working. The employee, a 56 year old, 22 ½ year Director of Business Development, had been terminated without cause. 

An employment contract might be considered “frustrated” when an unforeseeable event occurs that makes it impossible to fulfill the terms of the contract. This recent Ontario Superior Court of Justice case should give employer’s reason for pause and to take a second look at the doctrine of frustration of contract.[1] In this case, an employee

In a decision of the Human Rights Tribunal of Ontario (“HRTO”) released May 22, 2015, an applicant was awarded $150,000 in general damages against her former employer and its principal.  The co-applicant was awarded $50,000.  The decision represents a new high-watermark for damage awards. The HRTO found that owing to the fact that the actions

A recent case from Ontario analyzed the employment status of two long-serving workers. The two plaintiffs worked as installation supervisors for the employer, a kitchen cabinet manufacturer, for 32 years and 26 years, respectively. Up to 1987 both plaintiffs had a formal employment relationship with the employer.  In 1987 the employer advised both plaintiffs that

Nancy Shapiro will be speaking at the Law Society of Upper Canada’s Professional Development Program entitled “The Six-Minute Employment Lawyer 2015” on Friday June 5, 2015. The program will be held at The Law Society of Upper Canada, 130 Queen Street West, Toronto from 1:30 PM to 5:00 PM.

Earlier this year we updated you about some of the changes to Ontario’s employment legislation https://kmlaw.ca/the-esa-in-2015-the-times-they-are-a-changing/. This month we are highlighting two of the changes to the Employment Standards Act, 2000 (“ESA”), which take effect as of May 2015. Employment Standards in Ontario Poster: Under Ontario’s Stronger Workplace for a Stronger Economy Act, 2014, SO

On April 1 2015, the British Columbia Human Rights Tribunal granted a Filipino domestic care worker (“Employee”) subjected to sexual misconduct, harassment and discrimination $50,000.00 in damages for loss of dignity, feelings and self-respect. The 28 year old Employee is a mother of two children.  To provide for her family, she accepted employment as a

The Ontario Superior Court of Justice upheld a 2013 decision of the Human Rights Tribunal of Ontario (2013 HRTO 440) where an employee was awarded reinstatement to her employment as a Supervisor with the Hamilton-Wentworth District School Board (the “School Board”). The Complaint had been filed with the Ontario Human Rights Commission (the “Commission”) on

An employee sued for wrongful dismissal alleging he had been terminated without cause and that he had a 5 year minimum term contract guarantee.  The employer denied any such guarantee existed and alleged the employee had resigned. The trial judge found the employee to have been terminated, but that no 5 year minimum guarantee existed. 

In a recent decision of the Ontario Superior Court of Justice (“Superior Court”), the test with respect to family status accommodation pronounced by the 2014 Federal Court of Appeal (“FCA”) in Attorney General of Canada v. Johnstone (“Johnstone”) was applied to a like claim made pursuant to the Ontario Human Rights Code, R.S.O. 1990, c.

On March 6, 2015, the Supreme Court of Canada unanimously overturned the New Brunswick Court of Appeal and the trial judge’s decisions which had concluded that the Employee, the Executive Director of the New Brunswick Legal Aid Services Commission, was not constructively dismissed. The Supreme Court seized the opportunity to provide some guidance on the

Nancy Shapiro will co-chair and speak at the CBA’s 13th Annual Current Issues in Employment Law Program on May 1, 2015. The program will be held at Twenty Toronto Street Conferences and Events, 20 Toronto Street, 2nd Floor, Toronto. Nancy will discuss: “The Final (?) Word on Family Status and the Duty to Accommodate”.

In the span of two weeks at the beginning of 2015, the Supreme Court of Canada (SCC) has issued two decisions that will undoubtedly change the legal landscape for organized labour across the country. The first case involved a dispute between the Mounted Police Association and the Attorney General of Canada. At stake was the

In a surprising decision of the Federal Court of Appeal released January 22, 2015, the Court has held that s. 240 of the Canada Labour Code, R.S.C.C. L-2 (the “Code”) permits dismissals on a without cause basis. On Appeal from the Federal Court, the Federal Court of Appeal considered a complaint which had been decided

Ontario has passed legislation which will bring about key changes to the Employment Standards Act, 2000 (“ESA”), amongst other important changes: Minimum wage will increase annually in accordance with the Consumer Price Index: Effective October 1st and each October thereafter; Will be reviewed in 2020 to determine whether this mechanism has been effective; This change

The Ontario Superior Court recently issued a decision in an action for damages for wrongful termination awarding fourteen months’ pay in lieu of notice to an employee with less than three years’ service. The plaintiff employee accepted an offer of employment with the defendant employer, a trucking company, in 2009 to become its “country manager”

The employee signed an agreement at the start of his work, which included a clause limiting his entitlement if his employment was terminated without cause. The contract stated: “… unless an employee is terminated for cause, an employee’s entitlement may be terminated at the sole discretion of the Employer and for any reason whatsoever upon

In 2008, the Ontario Human Rights Code was amended to give the Court jurisdiction to award damages with respect to infringement of human rights, and the $10,000.00 cap with respect to mental distress damages was removed.  It left the human rights landscape in Ontario in a state of great uncertainty as to where damages would

The Employee worked as a mechanical engineer for the Employer. The Employer agreed to pay commissions for products the Employee sold to the government of Iraq in accordance with terms set out in an agreement (“Commission Agreement”). In early December, 2006, the Employee successfully sold products to the government of Iraq. On December 12, 2006,

The Ontario Superior Court recently issued a decision refusing to exercise its discretion to enforce the settlement of a wrongful dismissal claim when the employer discovered cause to terminate the employee shortly after signing the settlement. The plaintiff employee worked as an estimator for the employer. The employee was terminated for alleged poor work performance

After receiving a broadcast email posting for a Director of Finance position with ABM Canada Inc. (the “Employer”), Paul Miller (the “Employee”) applied for the position. It took a few meetings and some encouragement, but the Employee ultimately accepted a job offer starting in September, 2009, subject to entering an employment contract before starting.  Although

Shortly after finding out she was pregnant, the Applicant exchanged text messages with a friend who worked for the Employer restaurant about potential vacancies. The friend told the Applicant that the Employer was looking to hire a server. The Applicant was interested in the position and met with the friend to discuss it further. The

A female sales professional was offended by her company’s business development initiative organizing a “Men’s Day” for its clients at a local ski resort.  The employee, the only female sales professional with the company, was not invited.  The employee brought her concerns to the attention of her supervisor and the president.  A few weeks thereafter

The Employee was a Manager/Vice President of Operations with thirty eight years of employment tenure with the Employer. The Employer decided to unilaterally change the employee’s position from Vice President of Operations to a Purchasing Manager. The Employee declined to accept this new position. He took the position that he had been constructively dismissed by

The Ontario Human Rights Tribunal (“OHRT”) has refused to exercise its discretion to defer consideration of a human rights complaint alleging a failure by an employer to discharge its duty to accommodate despite the fact that the Workplace Safety and Insurance Board (“WSIB”) had issued a decision finding the employer could no longer accommodate the

Niranjan Kotecha (the “Employee”) worked for Affinia Canada ULC (the “Employer”), a car manufacturer, as a machine operator for 20 years.  The Employee was terminated at age 70 without cause, and the primary issue at a summary judgment motion was the length of the reasonable notice period.  The motion judge granted the Employee 22 months

An employee employed by an engineering company for 18 years was terminated for just cause without notice in November 2010 for improper expense claims.  The Supreme Court of British Columbia found that the employee was wrongfully dismissed and awarded the employee 18 months’ pay and benefits in lieu of reasonable notice, including an annual bonus

A trial level decision from Nunavut released last year held that an employee’s attempts to negotiate a separation package by way of a demand letter from her legal counsel to her Employer indicating that she had been constructively dismissed but that she was prepared to continue working while terms of a package were negotiated, amounted

The recent unanimous decision of the Federal Court of Appeal in Attorney General of Canada v. Johnstone[1], makes it clear that family status within the Canadian Human Rights Act (the “CHRA”) includes parental childcare obligations, which requires accommodation by employers.  This decision serves to illustrate the need for flexible and inclusive work environments for employees

Following an expert advisory panel review of Ontario’s occupational health and safety system, a new Ontario Health and Safety Act (OHSA) regulation has been passed and comes into force on July 1, 2014 making worker and supervisor health and safety awareness training mandatory in all workplaces. The new awareness training requirements of the regulation will

In a recent decision of the Manitoba Court of Appeal, the Court found that an employer car dealership that forced an employee to take an indefinite leave of absence due to vision related symptoms of diabetes, had constructively dismissed him. The employee, a 19 year senior managerial employee, was diagnosed with diabetes in 2005 after

The plaintiff (“employee”) worked as a Business Analyst, a middle management position with modest responsibility, at the defendant food services company (the “employer”).  The employee was terminated without cause after only 16 months of employment, purportedly because a division of the employer’s business had been sold and which rendered the employee’s position redundant. In the

The Employee worked for the Employer as a production supervisor in the body shop of General Motor’s Oshawa plant for approximately eight years.  The Employee, a black man, was scheduled to train another worker, but the trainee did not attend the training session. The Employee took the position, based on information he received from others

Just before the December holidays, the Minister of Labour tabled a bill for parliamentary debate entitled: “Strong Workplaces for a Stronger Economy Act”, which is described as “an act to protect the province’s most vulnerable workers and increase fairness for both employees and businesses.”  A lofty goal to be sure. Bill 146 poses the following

In Waterman v. IBM the Supreme Court of Canada considered the deductibility of monthly pension benefits from damages for wrongful dismissal. The Plaintiff employee worked for over 40 years for IBM when he was dismissed without cause in 2009 at the age of 65.  During his employment he participated in IBM’s defined benefit pension plan,

When an employee is terminated from their employment, whether it be by constructive dismissal or otherwise, the employee has a duty to mitigate his/her damages by seeking alternative employment.   However, does an employee have a duty to accept employment with the very same employer who terminated his/her employment in order to fulfill the duty to

An employee brought a motion for summary judgment after being terminated without cause from his twenty year employment as a machine operator with an auto parts manufacturer. At the time of his termination, the employee was 70 years old and his employment was not governed by an employment contract. The employee’s evidence on the motion

In a recently released decision of the Ontario Human Rights Tribunal (“OHRT”) dated March 14, 2013, the employee Applicant was awarded reinstatement to her employment as Supervisor, Regulated Substances, Asbestos, with the Hamilton-Wentworth District School Board (the “Respondent School Board”) after being away from work since July 8, 2004. The Applicant had filed a Complaint

Appeal Court Allows Wrongful Dismissal Claim to Proceed Mr. Spiers (the “Employee”) worked for Canon Canada Inc. (the “Employer”) for approximately 19 years.  In May 2006, he stopped working due to illness and was approved to receive short-term disability benefits by the Employer. The disability payments were terminated after approximately seven and a half weeks.

In the recent case of Sandra Trites v. Renin Corp, the Ontario Superior Court of Justice considered whether an employer could unilaterally impose a temporary lay-off upon an employee when there was no expressed or implied term to that effect in her employment contract. The Plaintiff Employee in this case had worked for the Defendant

Following a two-day wrongful dismissal trial in Superior Court, an employee was awarded reasonable notice damages in the amount of three-months’ salary which worked out to approximately $15,000. The Plaintiff employee then sought a further award for costs while the Defendant employer sought an award of costs of its own having regard to the fact

In a decision of a trial judge in Alberta, a dependent contractor was awarded notice even though she was found not to be an employee.  The Plaintiff first started providing services in August 2004 as an assistant area manager to the Defendant corporation through another company which the Plaintiff owned 50% of for a period

Ashley McKenna was employed as a part-time waitress at a sports bar.  In July 2011, she became pregnant; however, she continued to work her regular three to five shifts per week at the bar without issue. Then, in November 2011, new management took over the bar and shortly thereafter instituted a number of changes.  One

81 YEARS OF AGE – BUT NO PRESUMPTION OF AN INTENTION TO RETIRE Mandatory retirement has gone the way of the Dodo. So what do you owe to employees when they are terminated at age 81? The answer: reasonable notice just like anyone else. The case before the Ontario Superior Court of Justice in Filiatrault

Koskie Minsky has consistently ranked among the top-rated Toronto Labour and Pension Law firms, according to the 2013 Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada. Practice groups included in this category are Labour Relations (Construction Sector), Employment Law, Labour Relations, Occupational Health & Safety, Pensions & Employee Benefits, and Workers’ Compensation. The