Friday, 17 November 2017

Brave New World: ONCA Says that in Asset Transaction, an Offer of Employment is Sufficient Consideration for Material Changes

(c) istock/gustavofrazao

In an asset-sale transaction, if the purchaser offers to employ an employee of the vendor, can the purchaser vary some (or all) of the fundamental terms of the employee’s employment contract and rely on the offer itself as sufficient legal consideration for such changes?

In the case of Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873, Ontario’s top court ruled that it can.

Friday, 10 November 2017

Undertaking to Comply with the ESA does Not Displace Common Law Presumption of Reasonable Notice

(c) istock/IuriiSokolov

Does an employer’s undertaking to “comply with its obligations under the employment standards legislation” displace the common law presumption of termination only upon the provision of reasonable notice?

In a decision released October 20, 2017, Nogueira v Second Cup, 2017 ONSC 6315 (CanLII), the Honourable Justice Edward M. Morgan of the Ontario Superior Court of Justice ruled that it did not.

Such decision is yet another in the long series of decisions to consider what it takes to contract out of such entitlement and, for the reasons that follow, it leaves this employment lawyer saying: ¯\_(ツ)_/¯

Sunday, 29 October 2017

Scissors Beat Paper; Statutes Beat Scissors: Severability Clauses Can't Fix Illegal Termination Provisions

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Everyone knows that in the classic children's game, Rock, Paper, Scissors, scissors beat paper. But can scissors beat statutes?

To the point, can a trial judge use a severability clause to excise the offending portion of a termination provision, keeping the remainder of such provision enforceable? While that question might seem highly academic, it is one of critical importance to anyone employed pursuant to the terms of a written employment contract.

In North v. Metaswitch Networks Corporation, 2017 ONCA 790 (CanLII), the Court of Appeal for Ontario finally laid to rest both this issue and its earlier decision in the much-maligned case of Oudin v. Centre Francophone de Toronto, Inc., 2016 ONCA 514.

Friday, 29 September 2017

Judge Gives KISS Off to Gene Simmons Discrimination Claim

(c) istock/DenTv

Can you sue someone in Ontario civil court exclusively for discrimination under the Ontario Human Rights Code? Definitely not, according to a decision of the Ontario Superior Court of Justice sitting at Ottawa involving Gene Simmons and a KISS concert: Lee v Simmons et al., 2017 ONSC 4980 (CanLII)

Friday, 8 September 2017

Inconvenience Damages Awarded after Company’s Failure to File Record of Employment on Time

(c) istock/MartinFredy

What is the penalty if a company fails or refuses to file a Record of Employment on time?

While cases involving government sanction for failing to properly file an ROE appear to be few, in the civil case of Ellis v Artsmarketing Services Inc., 2017 CanLII 51563 (ON SCSM), an Ontario Small Claims Court Deputy Judge awarded money damages for such inconvenience.

Monday, 4 September 2017

Supreme Court Upholds Termination for Violation of Anti-Drug Policy

(c) istock/BenGoode

Can an employee be fired for violating his company’s drugs and alcohol policy, if the reason he violated such a policy was because he was addicted to an illegal drug?

For many years, most Ontario employment and human rights lawyers would have hesitantly answered that question with a “probably not”. Those who practice management-side would have sighed in frustration while they provided such advice, while those who act for employees would have adamantly pointed to human rights’ legislation prohibiting discrimination on the basis of such a recognized disability.

In June of 2017, the Supreme Court of Canada released its decision in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). In that case, Canada’s top court upheld a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy.

Saturday, 2 September 2017

Ontario’s Top Court Confirms that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing

(c) istock/vadimguzhva

“The motion for leave to appeal is dismissed with costs fixed at $1,000.” With those thirteen simple words, Ontario’s top court has confirmed that employees in Ontario may sometimes be required to submit to an invasive medical examination - by a doctor of their employer’s choosing - as part of the duty to accommodate and return to work process.

On August 25, 2017, the Court of Appeal for Ontario released its endorsement on a motion for leave [read: “permission”] to appeal the decision of the Ontario Divisional Court in Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII).

This is a big deal for Ontario employment and human rights law.