Monday, 10 September 2018

Today’s Tip for Making a Termination Clause Legally Binding: KISS

Stop me if you’ve heard this one before: An employer attempts to limit, by employing a contractual termination clause, its obligation to provide notice of termination to no more than the statutory minimum amount prescribed by the provisions of the Employment Standards Act, 2000 and the employee alleges that such clause is void ab initio because it violates the strictures of such statute. In Burton v. Aronovitch McCauley Rollo LLP, 2018 ONSC 3018 (CanLII) the Ontario Superior Court of Justice once again had reason to examine such arguments.

In this case, however, the court considered all of the earlier decisions in Roden, Wood, and Nemeth.

Sunday, 9 September 2018

Changing One’s Mind about Retirement

May an employee who has resigned her position of employment by way of a notice of retirement later rescind her written notice of retirement? If so, under what conditions may she do so?

Those were the questions answered by the Honourable Justice Mark L. Edwards of the Ontario Superior Court of Justice in English v. Manulife Financial Corporation, 2018 ONSC 5135 (CanLII)

Sunday, 19 August 2018

Assessment of Damages in Sexual Assault Cases

What is a reasonable assessment of damages in a civil case of sexual assault? Is the fact that a perpetrator of sexual assault has not been criminally punished a relevant factor in the decision to award punitive damages?

In Zando v. Ali, 2018 ONCA 680 (CanLII), Ontario’s top court adopted the framework for determining damages in a civil sexual battery or assault cases described in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (CanLII), 260 N.S.R. (2d) 257, per Cromwell J.A. (as he then was), and affirmed a lower court’s award of $200,000, made up of general damages of $175,000 and punitive damages of $25,000.

Friday, 3 August 2018

Receipt of LTD Evidence of Frustration

Is the continued receipt of long-term disability (“LTD”) benefits evidence that one’s contract of employment has become legally “frustrated”? In the case of Roskaft v. RONA Inc., 2018 ONSC 2934 (CanLII) the Honourable Justice Andra Pollak said yes.

Wednesday, 1 August 2018

The Right to Purreavement Leave in Ontario

Should employees be allowed to use their Personal Emergency Leave (Employment Standards Act, 2000, section 50) to be absent from work in order to mourn the loss of a family pet? That is to say, should workers in Ontario be entitled to take so called “purreavement leave”?

For some the question will be ridiculous. To others, the answer “no” would be equally outrageous.

The question is not completely hypothetical either. According to a CBC news’ report, Quebec labour tribunal sides with employer in cat-bereavement spat, “A Quebec labour tribunal has sided with an employer who refused a woman's request to work from home on the day her cat died.”

That story got me thinking: Can workers in Ontario use their Personal Emergency Leave to mourn the loss of a family pet? If not, should they?

Monday, 9 July 2018

Family Caregiver Leave in Ontario

How much time off is an employee entitled to in order to look after a sick family member?

With the expansion of Personal Emergency Leave to all employees in Ontario, regardless of the size of the employer, the answer that might immediately come to mind is ten, the first two of which must be paid.

However, both employers and employees must be mindful of the fact that while Personal Emergency Leave was expanded as a result of Bill 148, there are several other forms of protected leave including:

  • Pregnancy Leave [sections 46 – 47 of the ESA]
  • Parental Leave [sections 48 - 49]
  • Family Medical Leave [section 49.1]
  • Organ Donor Leave [section 49.2]
  • Family Caregiver Leave [section 49.3]
  • Critical Illness Leave [section 49.4]
  • Child Death Leave [section 49.5]
  • Crime-Related Child Disappearance Leave [section 49.6]
  • Domestic or Sexual Violence Leave [section 49.7]
  • Emergency Leave, Declared Emergencies [section 50.1]
  • Reservist Leave [section 50.2]

The periods of time allowed for those forms of leave can be far, far longer than the 10 days of PEL.

Tuesday, 3 July 2018

Holidays on Sunday

When is “Canada Day”? How about “New Year’s Day” or “Christmas”? Like all good legal questions, the answer, it would appear, is “it depends.”

Pursuant to subsection 1(1) of the Employment Standards Act, 2000 the following days are designated as “public holidays”, to which certain rights and obligations apply:

  1. New Year’s Day.
  2. Family Day, being the third Monday in February.
  3. Good Friday.
  4. Victoria Day.
  5. Canada Day.
  6. Labour Day.
  7. Thanksgiving Day.
  8. Christmas Day.
  9. December 26.

Of those, the only calendar days that one could derive with any certainty (and without knowledge of what those days mean) are "Family Day" and December 26.

So when is “Canada Day” anyway?