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.

Saturday, 31 March 2018

Divisional Court Dismisses Appeal in Case Concerning Working Notice Being Inappropriate for Employees on Disability Leave

On November 24, 2017, in a post titled, Working Notice Inappropriate for Employees on Disability Leave, I blogged about the decision of the Ontario Superior Court of Justice (Hood, J.) in McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073.

As the title of that post suggests, at that time, the Superior Court had found that a period of working notice did not ‘count’ with respect to an employee absent from employment on disability leave.

On March 19, 2018, a three-member bench of the Divisional Court (Swinton, Sachs and Corthorn JJ.) dismissed the employer’s appeal: McLeod v. 1274458 Ontario Inc. o/a Frontier Sales Limited, 2018 ONSC 1866 (CanLII).

Friday, 9 March 2018

Claiming Constructive Dismissal as an Independent Contractor

Can independent contractors claim damages for constructive dismissal? In a decision released March 7, 2018 by the Ontario Superior Court of Justice, Barresi v Jones Lang LaSalle Real Estate Services, Inc., 2018 ONSC 837, the answer to that question was essentially yes.

Saturday, 3 March 2018

Twenty-Six Months’ Notice Awarded to Employees Who Rejected Offer of Continued Employment

Is an employee who is slated to lose his or her employment as a result of the sale of part of his or her company required to accept an offer of employment from the purchaser, if that offer of employment is on substantially less favourable terms?

If the employee reasonably rejects that offer, then what is the maximum amount of ‘severance’ to which a wrongfully dismissed employee can be entitled? While many will tell you that 24 months is the most a court will ever award for reasonable notice, as this blog has noted on more than one occasion, see e.g. What is the Maximum Amount of Reasonable Notice Under Ontario Law? and Is Twenty-Six the new Twenty-Four? Taking the 'Cap' off the Limit on Reasonable Notice, and as the Honourable Justice Lois Roberts (now of the Court of Appeal for Ontario) said in the case of Hussain v. Suzuki (2011), 209 A.C.W.S. (3d) 101 (ON SC):

There is no cap on the amount of reasonable notice of employment termination to which an employee may be entitled.

On February 20, 2018, the Ontario Superior Court of Justice in its decision in Dussault v. Imperial Oil Limited, 2018 ONSC 1168, once again confirmed that there is no such thing as a “hard cap” at 24 months and took a good, hard look at the obligations of an employee to mitigate his or her damages by accepting a substantially less lucrative offer of employment from the purchaser in an asset sale arrangement.