Saturday, 23 June 2018

Agreement to Provide Greater of Set Amount and ESA Minimums Legally Binding: ONCA

You know what’s fun? Trying to make sense of whether the court is going to give effect to a contractual termination clause. And, in the case of Amberber v. IBM Canada Ltd., 2018 ONCA 571, the Court of Appeal for Ontario was once again asked to do just that.

As set out by Justice Douglas K. Gray, sitting ad hoc, put it in the court’s introductory words to its reasons for decision:

The issue in this case is the enforceability of a termination clause in a written contract of employment. On a motion for summary judgment brought by the employer, Justice Hebner [Justice Pamela L. Hebner of the Superior Court of Justice] held that the termination clause was ambiguous, and did not clearly set out an intention to deprive the respondent of his entitlement to damages at common law. She held the clause to be unenforceable and dismissed the motion.

The employer, IBM, was successful on appeal.

Friday, 15 June 2018

Employers’ Vicarious Liability for Sexual Assault

“Is a taxi company liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part?” That was the question that the Court of Appeal for Ontario answered in the case of Ivic v. Lakovic, 2017 ONCA 446.

The court’s answer, which affirmed an answer from the Ontario Superior Court, was “no”.

Monday, 28 May 2018

You’re The Expert! Ontario’s Top Court Says Tradespeople Can’t Sue Homeowners Under Occupiers’ Liability Act

If a skilled tradesperson injures himself in the course of his employment, can he sue the homeowners of the property on which he was working pursuant to the provisions of the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2?

In the case of Osmond v. Watkins, 2018 ONCA 386, Ontario’s top court affirmed that the answer to that question is “no.”

Monday, 14 May 2018

Unfettered Right to Terminate Contract Must be Exercised in Good Faith: ONCA

If one party to a contract has the “facially unfettered right to terminate the contract”, must that party exercise its right to terminate the contract only in good faith?

In the case of Mohamed v. Information Systems Architects Inc., 2018 ONCA 428, Ontario’s top court answered that question with a “yes” – the unfettered right must be exercised in good faith.

Saturday, 28 April 2018

Termination of Employment Does Not Terminate Ability to Apply for LTD Benefits

Consider this scenario: An employee is covered for long-term disability (LTD) benefits under his employer’s group policy of insurance. He sustains a head injury, but does not immediately appreciate the seriousness of the same. Three years later he quits the job that provided LTD coverage. Two years after that, he makes application for LTD benefits under his former employer’s policy. Is he still covered?

If you said “of course not”, you would be wrong. In the case of MacIvor v. Pitney Bowes, 2018 ONCA 381, Ontario’s top court ruled that the employee was not only eligible to make application for such benefits, the insurance company was required to respond and pay.

Monday, 16 April 2018

Punitive Damages Awarded for Failure to Conduct Harassment Investigation

What are the consequences for terminating an employee’s employment (for just cause no less!) rather than investigating a legitimate complaint of harassment? In the case of Horner v. 897469 Ontario Inc., 2018 ONSC 121, which proceeded before the Honourable Mr. Justice W.D. Newton by way of an undefended trial, the answer was $20,000 in aggravated damages, plus $10,000 in punitive damages over and above the wrongful dismissal award.

Saturday, 7 April 2018

Everything New is Old Again: Continuity of Employment in an Asset Sale at Common Law

What happens in an asset sale transaction, if the purchaser / new employer neglects to give actual notice to an employee of the vendor, whom the purchaser intends to employ, that the employee will not be credited for his past years of service with the former employer/vendor once he becomes an employee of the purchaser?

According to a 2018 decision of the Ontario Superior Court of Justice sitting at Ottawa, Ariss v. NORR Limited Architects & Engineers, 2018 ONSC 620 (CanLII), authored by Kelly Santini alumna, the Honourable Madam Justice Sylvia Corthorn, the answer is:

In the absence of notice from new employer/purchaser that an employee will not be credited for his years of service with former employer/vendor, recognition of that service is deemed to be part of employee’s contract of employment with purchaser – regardless of any letter of termination actually received by the employee from the vendor.