Tuesday, 14 April 2015

Ontario Judges Finds Individual Director Liable for Unpaid Wages Pursuant to Oppression Remedy

Are employees who are owed wages “creditors” for the purposes of advancing a claim pursuant to the oppression remedy provisions of Canada’s business corporations laws?

In a recent, unprecedented decision from the Ontario Superior Court of Justice, El Ashiri v. Pembroke Residence Ltd., 2015 ONSC 1172 (CanLII), at least one judge has said that the answer is “yes.”

Saturday, 11 April 2015

Employment Standards Act does not Oust Common Law of Constructive Dismissals for Layoffs: ONCA

Do the statutory provisions in Ontario's Employment Standards Act, 2000 governing the ways by which an employer may temporarily lay-off an employee oust the application of the common-law doctrine of constructive dismissal during the temporary lay-off period?

According to a decision from the Court of Appeal for Ontario, Motion Industries (Canada) Inc. v. McCarthy, 2015 ONCA 224 (CanLII), released April 7, 2015, the answer is “no.”

Saturday, 4 April 2015

Opinion: Seeking Retail Honesty

Can we all be honest with one another for a moment? Yesterday’s fight over which retail establishments could open and which could not was about one issue and one issue only: which businesses had the right to make money yesterday and which were precluded.

Some have taken the position that the rules on who can open are arbitrary. The rules are not arbitrary; they are clearly deliberate. The law establishes clear criteria on the tourism criteria that must be met before a municipality may pass an exempting by-law under subsection 4 (1) of the Retail Business Holidays Act. The law is about economics. The clearest proof of that point, I would suggest, is the omission of Boxing Day from the enumeration of holidays in the Retail Business Holidays Act; it is a “holiday” in several other statutes including the Employment Standards Act, 2000.

Friday, 3 April 2015

Right to Refuse to Work Comes at a Cost to Employee

If an employee asserts his right, as guaranteed under the Ontario Employment Standards Act, 2000, not to work on a holiday or on a Sunday, must the employer provide him with a substitute for the hours he otherwise could have worked?

In a decision from the Ontario Labour Relations Board, Farinha v Highland Farms Inc, 2014 CanLII 17466 (ON LRB), the answer was “no.”

Employees and The Ontario Retail Business Holidays Act

As a general statement of law, it is illegal for a retail business to be open on a holiday. Of course, there are numerous exemptions to this rule; the most well-known of which being the ‘tourist area’ exemption. What many people may not know, however, is that the legal onus is on the store’s employees to restrain members of the public from buying goods.

Have employees been convicted of allowing the public to shop on a holiday? They have.

Sunday, 22 March 2015

Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed

There is a saying in law that “bad facts make bad law.” Of course, the opposite is also true; good facts make good law. In a clear demonstration of the latter, the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM) demonstrates what happens when experienced counsel appears before an experienced trial judge with some pretty decent facts.

While Bray looked at a number of issues of importance to Ontario employment law, the four most interesting features are:

  1. The judge’s finding that an indefinite layoff is a constructive dismissal;
  2. The judge’s finding that he had no power to award damages for an act of reprisal following a complaint to the Ontario Ministry of Labour;
  3. The judge’s award of human rights damages in an Ontario Small Claims decision; and
  4. The judge’s award of punitive damages for a breach of the duty of honest created by the Supreme Court of Canada in Bhasin v. Hrynew, [2014] S.C.C. 71.

Saturday, 14 March 2015

Addicted to Love – Is an Affinity for Internet Pornography a Disability?

In 1986, English rocker Robert Palmer suggested that you might as well face it, you’re addicted to love. What if, however, rather than being addicted to love, one is “addicted” to watching others make love, on the internet, using an employer-provided laptop? Has “addiction” to internet pornography been accepted by a Canadian human rights tribunal as a "disability"?

As an aside, the image above is taken from an advertising campaign for what is touted as the world’s largest online pornography site. More information on the advertising campaign can be found on AdWeek’s website here: AdWeek May 20, 2014, which is obviously safe for work.