Sunday, 17 May 2015

Court Finds Successor Employer Liable for Previous Employer’s Pension Obligations

The common rebuttal to the slackerism “close enough” is the saying that “close only counts in horseshoes and hand grenades.” However, as the case of King v. 1416088 Ontario Ltd., 2014 ONSC 1445 (CanLII) aff’d 2015 ONCA 312 demonstrates, in cases where two or more employers are closely related, Ontario courts will be prepared to say “close enough” to ground a finding of joint and several liability.

Sunday, 10 May 2015

Court Finds the Phrase “Any Amounts Paid” to be Fatally Ambiguous

In the perhaps never-ending battle between employers and employees with respect to the issue of the enforceability of employment contracts, score another victory for employees and their position that employment contracts must be crystal clear before the courts will uphold them.

In the case of Howard v Benson Group, 2015 ONSC 2638 (CanLII) the Honourable Justice A. Donald K. MacKenzie found the following contractual provision to be null and void and therefore legally unenforceable:

[8.1] Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario. [sic]

Tuesday, 14 April 2015

Ontario Judges Finds Individual Director Liable for Unpaid Wages Pursuant to Oppression Remedy

Are employees who are owed wages “creditors” for the purposes of advancing a claim pursuant to the oppression remedy provisions of Canada’s business corporations laws?

In a recent, unprecedented decision from the Ontario Superior Court of Justice, El Ashiri v. Pembroke Residence Ltd., 2015 ONSC 1172 (CanLII), at least one judge has said that the answer is “yes.”

Saturday, 11 April 2015

Employment Standards Act does not Oust Common Law of Constructive Dismissals for Layoffs: ONCA

Do the statutory provisions in Ontario's Employment Standards Act, 2000 governing the ways by which an employer may temporarily lay-off an employee oust the application of the common-law doctrine of constructive dismissal during the temporary lay-off period?

According to a decision from the Court of Appeal for Ontario, Motion Industries (Canada) Inc. v. McCarthy, 2015 ONCA 224 (CanLII), released April 7, 2015, the answer is “no.”

Saturday, 4 April 2015

Opinion: Seeking Retail Honesty

Can we all be honest with one another for a moment? Yesterday’s fight over which retail establishments could open and which could not was about one issue and one issue only: which businesses had the right to make money yesterday and which were precluded.

Some have taken the position that the rules on who can open are arbitrary. The rules are not arbitrary; they are clearly deliberate. The law establishes clear criteria on the tourism criteria that must be met before a municipality may pass an exempting by-law under subsection 4 (1) of the Retail Business Holidays Act. The law is about economics. The clearest proof of that point, I would suggest, is the omission of Boxing Day from the enumeration of holidays in the Retail Business Holidays Act; it is a “holiday” in several other statutes including the Employment Standards Act, 2000.

Friday, 3 April 2015

Right to Refuse to Work Comes at a Cost to Employee

If an employee asserts his right, as guaranteed under the Ontario Employment Standards Act, 2000, not to work on a holiday or on a Sunday, must the employer provide him with a substitute for the hours he otherwise could have worked?

In a decision from the Ontario Labour Relations Board, Farinha v Highland Farms Inc, 2014 CanLII 17466 (ON LRB), the answer was “no.”