Saturday, 5 January 2019

The ONCA's Decision in the Uber Case and the (Il)legality of Arbitration Clauses in Employment Contracts

Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?

A cursory reading of the Court of Appeal for Ontario’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1 might lead those who do not practice in the area of employment law to conclude that the answer is “yes.”

I might not be so sure.

Wednesday, 2 January 2019

ONCA says Uber's Arbitration Clause is both Illegal and Unconscionable

Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?

In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.

Why does one think this ride isn’t over yet?

Saturday, 29 December 2018

Slate Not Wiped Clean by Release in Context of Share Sale

Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?

According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”

The case has real implications for those who practice employment law in the context of the sale of a business.

Friday, 28 December 2018

Simply Complying with the ESA not Enough to Rebut Common Law Presumption of Entitlement to Reasonable Notice – ON Divisional Court

Is the sole requirement to rebut the common law presumption of termination only upon reasonable notice that the contractual termination clause comply with the ESA, or is something else required?

In a decision released December 6, 2018, Movati Athletic (Group) Inc. v. Bergeron, 2018 ONSC 7258 (CanLII), the Ontario Divisional Court (Swinton, Thorburn, and Copeland JJ.) upheld an earlier decision of the Honourable Justice O’Bonsawin, 2018 ONSC 885, about which I blogged in my post Lack of Clear Warning Voids Termination Provision, which held something more is required.

In addition to upholding Justice O’Bonsawin’s decision, the Divisional Court provided some very clear, point-by-point analysis on what it takes for a contractual termination clause to sufficiently, and legally, rebut that common law presumption.

Thursday, 27 December 2018

Bill 47 - The Making Ontario Open for Business Act, 2018

On November 22, 2017, the Ontario Government, then headed by Liberal premier Kathleen Wynne, passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22. For my summary of the changes to Ontario employment law brought into effect by Bill 148 see my post Bill 148 and Changes to the Employment Standards Act, 2000.

Nearly one year later to the day, November 21, 2018, the Ontario Government, now under a Conservative government, passed Bill 47, the Making Ontario Open for Business Act, 2018, S.O. 2018, C.14. The Bill received Royal Assent the same day. Unless otherwise stated, the changes to the ESA are effective as of January 1, 2019.

A major effect of Bill 47 was to undo much, but not all of what had been introduced by Bill 148.

So what changes as of January 1, 2019?

Friday, 7 December 2018

Top Five Cases of Importance to Ontario Employment Law - 2018 Edition

2018 has been, compared to some other years, relatively quiet with respect to employment law jurisprudence. Sometimes that can be a good thing.

The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:

And so, with another year coming to a close, it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law!

Tuesday, 4 December 2018

ONSC Judge Would Have Ordered at Least 36 Months Reasonable Notice – If Requested

What is the appropriate notice period for a 62 year-old, 37 years tenured Senior Vice President, who is terminated without cause and left without any comparable employment opportunities?

According to the decision of the Honourable Mr. Justice D.J. Gordon of the Ontario Superior Court of Justice in Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130, a minimum of 36 months.