Tuesday, 23 May 2017

Court of Appeal Rules that Modest Earnings Earned during Notice Period Not to be Deducted from Wrongful Dismissal Damages

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What happens when an employee takes a new job not so much to mitigate her damages, but rather to survive? More to the point, what if that new position is so much beneath the wrongfully dismissed employee’s previous position that to deduct such earnings would work a disservice to the employee?

In the case of Brake v PJ-M2R Restaurant Inc., 2016 ONSC 1795 (CanLII), the Honourable Justice Kevin B. Phillips of the Ontario Superior Court of Justice held that a wrongfully dismissed employee’s ability to find employment did not take away from the loss she suffered from being dismissed without cause. Moreover, her new position, that of a cashier, was so substantially inferior to the managerial position she held with the defendant that, “the former does not diminish the loss of the latter.” As a result no deduction was applied on account of the mitigatory earnings.

I blogged about the trial decision in my post Trial Judge Finds Mitigatory Earnings too Insignificant to be Deducted from Wrongful Dismissal Award .

On May 23, 2017, the Court of Appeal for Ontario released its reasons for decision in respect of the appeal of that case: Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402.

Saturday, 20 May 2017

Divisional Court Rules that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing

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Is an employee required to submit to an independent medical examination, an “IME”, by a doctor of his employer’s choosing as part of the employee’s duty to participate in the human rights accommodation process? In a decision released May 19, 2017, by the Ontario Divisional Court, Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517, the answer was “sometimes.”

Sunday, 14 May 2017

What Happens in a Buy/Sell Deal if One of the Vendor’s Employees Refuses to Accept the Purchaser’s Offer of Employment?

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A typical term of any significant asset purchase agreement, which sees the employees of the vendor continue in employment with the purchaser, is that the purchaser will make offers of employment on substantially similar terms to the vendor’s employees. As is more fully explained in my post Continuity of Employment Following the Sale of a Business, pursuant to the provisions of Part IV of the Ontario Employment Standards Act, 2000:

If an employer sells a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee shall be deemed not to have been terminated or severed for the purposes of this Act and his or her employment with the seller shall be deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.

But what if one (or more) of the employees (unreasonably) refuses the purchaser’s offer? Is that employee still entitled to ‘severance’ pay? The answer will surprise most employers.

Saturday, 6 May 2017

Judge Finds Poor Reference is Not Defamation

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Can an employee sue his former employer in defamation for a poor reference? In a to-the-point decision authored by the Honourable Justice Gisele M. Miller of the Ontario Superior Court of Justice, Papp v. Stokes et al, 2017 ONSC 2357, the answer was not if what was is said is truthful and/or free of malice.

In the result, Justice Miller found that Mr. Papp had not been smeared as a result of an honest, but less than flattering reference.

Tuesday, 18 April 2017

Ontario Superior Court Says that You Cannot Sue for the Tort of Sexual Harassment

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Is the tort of sexual harassment a recognized cause of action in the Province of Ontario? Put another way, in Ontario, can you sue in court if you are sexually harassed?

Two days ago, on April 16, 2017, I blogged about the case of Merrifield v The Attorney General, 2017 ONSC 1333, released February 28, 2017, in which the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice found that “harassment” was recognized as a tort upon which a civil cause of action may be based. (See Ontario Superior Court Awards $100,000 in General Damages for Tort of Harassment.)

Surely, one would think, if you can sue for “harassment” in Ontario’s courts, you can sue for sexual harassment. However, as the case of K.L. v 1163957799 Quebec Inc., 2015 ONSC 2417 (CanLII) demonstrates, few things in law make such sense.

Sunday, 16 April 2017

Ontario Superior Court Awards $100,000 in General Damages for Tort of Harassment

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In Ontario, is harassment recognized as a tort upon which a civil cause of action may be based? Put another way, can you sue for workplace harassment in Ontario?

While this blog has frequently argued that the answer to that question is likely “no”, in the case of Merrifield v The Attorney General, 2017 ONSC 1333, released February 28, 2017, the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice said “yes.”

Friday, 14 April 2017

When Does the Limitation Period Begin for a Wrongful Dismissal Case in Ontario?

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How long do you have to start a case for wrongful dismissal in Ontario? Perhaps more importantly, when does the limitation period begin to run for a wrongful dismissal action – at the time notice of termination is received or on the last day worked?

That second question, when does the limitation period begin to run , was answered by the Honourable Justice Kirk W. Munroe of the Ontario Superior Court of Justice in the case of Bailey v Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789 (CanLII).