Tuesday, 21 March 2017

Failure to Pay $300,000 Bonus a Breach of Contract Only and Not a Constructive Dismissal: ONCA

(c) istock/Jummie

Can an employer breach a rather fundamental element of an employee’s employment contract (to the tune of over $300,000) without triggering a constructive dismissal?

In a decision released March 21, 2017, Chapman v. GPM Investment Management, 2017 ONCA 227, the Court of Appeal for Ontario said “yes.”

Sunday, 19 March 2017

Is a legal ban on requiring high heeled shoes in the workplace inevitable?

(c) istock/grinvalds

Is a legal ban on requiring high heeled shoes in the workplace inevitable? Probably.

On March 8, 2017, Dr. Andrew Weaver, Member of the Legislative Assembly of British Columbia for Oak Bay-Gordon Head (Green) introduced a Private Member’s Bill, Bill M237 — Workers Compensation Amendment Act, 2017. As the explanatory note to the bill explained, that bill would have amended the BC Workers Compensation Act, RSBC 1996, c. 492, by prohibiting employers from setting varying footwear requirements for their employees based on gender, gender expression or gender identity. Consequently, the law (if it had passed) would have made employers unable to require select employees to wear high heels.

The bill died on the order paper when the legislature rose on May 9th, ahead of the upcoming provincial election. It never really had a chance.

But, is such a ‘ban’ either coming to Ontario or inevitable? I think so.

Sunday, 26 February 2017

Court of Appeal Finally Brings Much Needed Clarity to Issue of Benefits in Contractual Termination Provisions

(c) istock/Choreograph

It’s here. On February 23, 2017, the Court of Appeal for Ontario released its much anticipated decision in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII).

After an initial reading of the case I tweeted, “I think we have our number one case of importance to Ontario Employment Law for 2017.” To which one observer responded, “Sean, it is only February! I will remember this tweet when you write your annual "Top 5" cases.” While I stand to be corrected in ten months, I was aware of the date when I authored that tweet.

While Wood is not quite everything that I had hoped it would be, it’s still a lot of things. It could well be the most important decision to Ontario employment law this year.

Sunday, 12 February 2017

Supreme Court of Canada Denies Leave to Appeal in Oudin: But Does That Really Mean Anything?

(c) istock/kenta210

On February 2, 2017, the Supreme Court of Canada denied the application for leave to appeal from the judgment of the Court of Appeal for Ontario in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, dated June 28, 2016. As is customary of the Supreme Court, no reasons for the decision to deny leave were provided.

I previously blogged about the Oudin decision in the post The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?, which was actually cited to the Supreme Court by the Applicant as one reason leave should be granted.

So what does the fact that the Supreme Court of Canada denied leave really mean for Ontario employment law?

Saturday, 4 February 2017

No Aggravated Damages Absent Evidence of Mental Distress: Divisional Court

(c) istock/MarkLevant

Can a trial court award aggravated damages to an employee who claims wrongful dismissal absent a finding of actual mental distress being suffered by that employee? That was the question answered by the Honourable Mr. Justice Robert N. Beaudoin, sitting as a judge of the Ontario Divisional Court, in the case of Walker v Hulse, Playfair and McGarry, 2017 ONSC 358 (CanLII).

Saturday, 21 January 2017

Ottawa Small Claims Court Awards $4,000 in Punitive Damages after Employer Falsely Alleges Just Cause

Truth or Consequences was an American television show originally hosted on NBC radio by Ralph Edwards (1940–1957) and later on television by Edwards (1950–1954), Jack Bailey (1954–1955), Bob Barker (1956–1975), Bob Hilton (1977–1978) and Larry Anderson (1987–1988). The television show ran on CBS, NBC and also in syndication. The premise of the show was to mix the original quiz element of game shows with wacky stunts.

The title “Truth or Consequences” serves as an appropriate introduction to the issue of what happens when an employer concocts reasons for termination after being served with an employee’s claim of wrongful dismissal.

The question answered by this post is: What is the penalty to an employer for concocting an allegation of theft in order to justify an allegation of just cause for termination? In a case from the Ottawa Small Claims Court, Budge v Dickie Moore Rental Inc, 2017 CanLII 468 (ON SCSM), the answer was $4,000 in punitive damages.

Saturday, 14 January 2017

Voluntary Resignation Results in Forfeiture of Bonus: ONSC

(c) istock/ognianm

“Got to pack my, things and go / Move fast not slow / That dog is mine.” Those are the opening lyrics to the song “The Dog is Mine” by Canadian rapper k-os. It’s a catchy song.

Those lyrics provide a great introduction not only to “The Dog is Mine”, they also provide a great introduction to the subject of whether an employee who voluntarily resigns from his employment is entitled to an earned but not yet paid incentive bonus.

In Bois v MD Physician Services Inc., 2016 ONSC 8133 (CanLII), the Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice was tasked with answering the following legal question: If an employee is entitled to earn a bonus payment pursuant to the terms of a written employment contract, but a requirement of that employment contract - and a material condition precedent to the actual payment of the bonus - is that the employee must be “actively employed” on the date that the bonus payment is to be made by the employer, is the employee nonetheless entitled to the receipt of the earned but not yet paid bonus payment if he voluntarily resigns from his employment prior to the date on which the bonus payment is made? Put another way, can you still get your bonus if you quit before it's paid to you?