Sunday, 25 January 2015

Making Sense of the Division of Powers in Employment Standards Legislation

The regulation of employment standards in Canada is complicated and confusing. Both the federal and provincial governments have the legal ability to regulate employment, but only within their own, separate spheres of influence. The power is divided; not shared. This division of powers can result in confusion and debate as to exactly which set of laws govern the workplace.

The debate is not wholly academic. For example, in Ontario “Family Day”, being the third Monday in February, is prescribed as a public holiday for the purpose of the definition of “public holiday” in section 1 of the Ontario Employment Standards Act, 2000. Family Day is a ‘statutory holiday,’ but only for employees whose employment is subject to that statutory law. Not all employees who work in Ontario are subject to the Ontario Employment Standards Act, 2000; some workers are subject to the provisions of the Canada Labour Code.

Deciding which statute applies to the employment relationship can be a frustrating exercise. More than once employers and employees have found themselves before Canada’s highest court seeking direction as to which law is to apply. The 2009 decision of the Supreme Court of Canada in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, [2009] 3 SCR 407, 2009 SCC 53 (CanLII) is a paradigmatic example of such a case.

The purpose of this page is to attempt to provide an overview as to the division of powers and which law may apply. The page should be read with caution, as resolving which law applies can be much more complicated than it first appears. A reading of the Consolidated Fastfrate decision should disabuse anyone of the notion that this is a straightforward issue. Employers and employees uncertain as to which employment standards legislation applies to their situation would be prudent to seek a formal opinion on the subject before acting.

Saturday, 17 January 2015

Requirement to Purchase Shares Signalled Employer’s Intention to Create Long-Term Employment Relationship: ONSC

How does requiring an executive to purchase shares in his employer’s company affect the employee’s reasonable notice period in the event that his employment is terminated without cause? According to the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice, the answer is that it tends to length the notice period.

In the case of Rodgers v. CEVA, 2014 ONSC 6583 (CanLII), Mr. Justice Taylor held that, “Based on the required investment in [the employer] I find there was at least an implied representation that the plaintiff was about to embark upon a long-term employment relationship with [his employer.]

Saturday, 10 January 2015

Judge Finds it Reasonable for Employee to Refuse to Return to "A Good Place to Work"

Under what set of circumstances will an Ontario Superior Court judge say that it is “reasonable” for an employee to refuse to return to work for the employer that dismissed her as a means of mitigating her damages?

The law concerning the duty to mitigate is rather clear; employees who are dismissed by their employers have a duty to mitigate their damages and may be required to return to work for the employer that dismissed them in order to do so. However, as the Supreme Court of Canada observed in the case of Evans v. Teamsters Local Union No. 31, [2008] 1 SCR 661, 2008 SCC 20:

[30] The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer, it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.

But what exactly is “an atmosphere of hostility, embarrassment or humiliation”? In the case of Turner v. Inndirect Enterprises Inc. (2009), 2009 CarswellOnt 9666, [2009] O.J. No. 6345, 87 C.C.E.L. (3d) 306 (ON SC) affd 2011 ONCA 97 the Honourable Justice David Salmers said that a culmination of seemingly common factors created such an atmosphere. It is an interesting read.

Sunday, 4 January 2015

"Don't Forget: You're Here Forever" - Or Are You?

"Don’t forget: you’re here forever." Those five words (seven if you are particular) are said to occupy the plaque above Homer Simpson’s workstation. As regular, and one has to admit older, fans of the iconic television show will remember, in the episode “And Maggie Makes Three”, which originally aired on January 22, 1995, Homer’s boss, Mr. Burns, affixed said plaque above Homer’s workstation after our hero was forced to crawl back to the Springfield Nuclear Power Plant in search of his old, and much despised, job. And while Homer makes the best of the situation, covering certain parts of the plaque with photos of his infant daughter Maggie such that the plaque reads “Do it for her”, the plot point raises an interesting question about employment law in Ontario: Is there such a thing as a job “forever”?

One of the most common misconceptions about employment law in Ontario is that so long as an employee continues to satisfactorily perform his or her job, that employee cannot be fired. As this blog has frequently stated, that simply is not the case and employers generally have the right to terminate an employee’s employment for any reason at all, including no reason. (There are, of course, exceptions, such as the fact that an employer cannot dismiss an employee for a reason prohibited by statute; but those exceptions are few.)

But what if the employee’s employment contract says that the employer “shall not” dismiss the employee? Certainly that would entitle the employee to a job for life. And if the employer did, in fact, dismiss the employee, then she would be entitled to the wages that she would have earned for the rest of her life, no?

A 2003 case from the Court of Appeal for Ontario, authored by the Honourable Justice Rosalie Abella, who now sits on the Supreme Court of Canada, Foreman v. 818329 Ontario Limited, 2003 CanLII 57401 (ON CA) held that the contract term “[The employer] shall not dismiss [the employee]” did not, in fact, entitle the employee to a job for life.

Saturday, 3 January 2015

Thursday, 1 January 2015

Court of Appeal says Group LTD Policies are not "Business Agreements"

Is a group policy of insurance a “business agreement” for the purpose of ss. 22(5) and (6) of the Limitations Act, 2002? In a reversing an earlier decision of the Superior Court of Justice, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONSC 1523, considered by this blog in the post Time Limit to Sue for LTD benefits, the Court of Appeal for Ontario in the case of Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 has clearly said that such contracts are not.

Thank You for 2014

Thank you.

2014 was an excellent year for Labour Pains. Being named “Best Employment Law Blog in Canada” by The Canadian Law Blog Awards a.k.a. the “Clawbies” was an unexpected and somewhat surprising development. All I can say to that is Wow! Thank you!

Labour Pains was started in April 2012 as “The Law Blog for the Suddenly Unemployed.” Since then the blog has grown and changed to become “Labour Pains” partially in recognition of the fact that this blog attempts to speak to both employers and employees.

For those who like statistics, here are a few numbers:

  • In 2012* this blog saw 4,135 users who viewed 12,904 pageviews.
  • In 2013 that figure grew to 25,663 users and 53,217 pageviews.
  • Last year the numbers increased again to 36,259 users and 67,965 pageviews.

(*2012 figures represent only June 1, 2012 – December 31, 2012. Figures according to Google Analytics.)

The second reason this blog was renamed “Labour Pains” was in recognition of the number of readers this blog attracts on the issue of being fired after maternity leave. After this blog’s page concerning What is Wrongful Dismissal?, the most popular post on this blog is Fired After Maternity Leave. The post Pregnant Employees are Entitled to Greater Notice of Dismissal takes the fifth place spot overall.

As the numbers demonstrate this blog has continued to grow and succeed. I have appreciated a great deal of success as a result, for which I am incredibly thankful.

So, to all those who have supported this blog, and me, over the past two and three-quarters years, thank you. May your 2015 be free from any labour pains.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner