Saturday, 10 July 2021

Pointe Finale! Calculation of "Payroll" for Severance Purposes Not Limited to Just Ontario: Divisional Court

Section 64(1)(b) of the Ontario Employment Standards Act, 2000 requires an employer who severs an employment relationship with an employee to pay severance pay to the employee if: (a) the employee was employed by the employer for five years or more; and (b) the employer “has a payroll of $2.5 million or more.”

The question of how to calculate the employer’s payroll, specifically whether one is to consider the employer’s global payroll or only the employer’s Ontario-based payroll has (for some reason) continued to be a source of confusion.

In Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290 (CanLII), the Ontario Divisional Court (Dambrot, Lederer and Favreau J.J.) has finally, hopefully, laid the question to rest.

Monday, 7 June 2021

Infectious Disease Emergency Leave *Does* Oust Common Law Constructive Dismissal

Does Infectious Disease Emergency Leave under the Employment Standards Act, 2000, S.O. 2000, c.41 oust the common law of constructive dismissal or were employees ostensibly placed on leave actually terminated?

If that question sounds familiar, it is because that is the question answered by the case of Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII), about which I blogged in my post Infectious Disease Emergency Leave Does Not Oust Common Law Constructive Dismissal.

Problem is, there is a new decision, Taylor v Hanley Hospitality Inc, 2021 ONSC 3135, which reaches the opposite conclusion.

CERB Proper Deduction against Wrongful Dismissal Damages: BCSC

Are amounts received under the Canada Emergency Response Benefit (“CERB”) a setoff against wrongful dismissal damages?

It would appear that the answer to the question still depends on which judge you ask.

In Hogan v 1187938 B.C. Ltd., 2021 BCSC 1021 (CanLII), the Honourable Madam Justice Gerow of the British Columbia Supreme Court held such amount was a proper deduction.

Sunday, 30 May 2021

COVID-19 and Reasonable Notice Calculations – The State of Affairs at the End of May 2021

It is the end of May 2021. The COVID-19 pandemic has been a reality for approximately 15 months in Ontario. The legal system has changed in ways seemingly unimaginable at the end of 2019: Appearances for scheduling matters by video rather than in-person attendance? Remote commissioning of affidavits? Full blown hearings by video conference? Service of documents by email rather than the beloved fax?! The procedural elements of the legal landscape of 2021 are practically unrecognizable from what it was a year and a half ago.

So what of the substantive law of wrongful dismissal and the calculation of reasonable notice?

Since the pandemic was declared, plaintiffs’ counsel has advanced the position that the disruption associated with same means an automatic extension of the reasonable notice period due to dismissed employees. But has the judiciary agreed?

Saturday, 29 May 2021

Employee’s Refusal to Work Not Wrongful Dismissal

If an employee leaves work and refuses to return until certain demands have been met, and if the employer is unwilling to meet those demands, has the employee been fired, has she quit, or what happened?

In Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933 (CanLII), Madam Justice Julianne Parfett of the Ontario Superior Court held that the employee had not been fired; her own actions had repudiated the contract.