Monday, 12 November 2018

No Right to Sue Employer for Sexual Assault by Co-Worker: WSIAT

Can an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”

Monday, 5 November 2018

Open Letter Re: Bill 47 and Bereavement Leave

Dear Premier Ford, Minister Smith, and Minister Scott.

I am writing to you with respect to the issue of Bill 47, the Making Ontario Open for Business Act, 2018 and, more specifically, the subject of bereavement leave.

I will proceed from the presumptions that: (a) you do not know me; and (b) you have never heard of me or this blog. Notwithstanding the same, as I write this post, it is my hope that it will nonetheless come to your attention or at least that of one of your staffers.

I am not a politician, statistician, or member of any political party. I am a lawyer in private practice, providing legal services mostly with respect to matters of employment law. Since I was called to the bar of Ontario in 2008, I have acted for both employees and employers. I have provided legal advice to some of this province’s largest and most successful businesses as well of some of its smallest. And, while I hear a lot of things from a lot of people, I wish to make it patent that the views expressed in this post are mine and mine alone.

On April 1, 2012, I launched this blog. Since that time, I have published nearly 400 blog posts. This blog has been viewed more than one million times. It has been cited more than once to the Supreme Court of Canada and has it formed the basis for legislative amendments. I say these things not to be self-aggrandizing, but rather to provide you with the context for what I am going to say next.

On August 29, 2017, I authored a post titled Entitlement to Bereavement Leave in Ontario. I edited the post following the passage of Bill 148.

In the approximately 14 months since I authored that posted it has been viewed more than 25,000 times. It is, without question, the most frequently consulted post I have ever authored.

I tell you this because, as you know, Bill 47 will change Ontario employees’ entitlement to bereavement leave. Whereas currently, employees, who have not otherwise made use of their Personal Emergency Leave, may take as much as ten days of bereavement leave, the first two of which must be paid by their employer, if Bill 47 passes as proposed, the statutory entitlement will be limited to a maximum of two unpaid days per calendar year. I appreciate that employers are obviously entitled to provide more generous benefits to their employees and, from experience, I know that a lot will. Ontario’s employers are comprised of Ontario’s people and, as I trust we will all agree, most people in Ontario are gracious, sympathetic, and kind.

But the purpose of legislation generally, and the Employment Standards Act more specifically is to impose minimum standards; experience has shown that we cannot rely on goodwill alone.

While my experience with this subject is simply anecdotal, what I know is that the people of Ontario care about their right to bereavement leave. Employers want to ensure that they are following the law by providing their employees with that to which they are entitled. More importantly, employees, most of whom are experiencing some of their darkest moments, want to ensure that they can be away from work without fear of losing their jobs. Bereavement leave is incredibly important.

To that end, I would encourage you to reconsider the quantum of bereavement leave presently being considered under Bill 47. I would also encourage you to reconsider your decision to make the same unpaid.

Were I asked, I would suggest a period of five days absence, per family member lost, the first day of which must be paid by the employer.

Should you wish further insight into this, or any other matter of Ontario employment law, I would welcome the opportunity to speak with you.

Respectfully submitted,

Sean P. Bawden

Monday, 15 October 2018

Court Invalidates Working Notice Period – Qualitative Component Absent

It is a well-known fact that employers must provide their employees with “reasonable notice” of the termination of their employment. But, is there a qualitative component as to what is “reasonable”, in addition to a quantitative component?

In the case of Wood v. CTS of Canada Co., 2017 ONSC 5695, the Honourable Justice John R. Sproat, ruled that there was. Later, and for reasons reported as Wood v. CTS of Canada Co., 2018 ONCA 758, the Court of Appeal for Ontario agreed that not all notice periods are created equal.

Sunday, 30 September 2018

Court Says New Zealand Lamb Company’s Termination Clause Just Plain Baaa-d

Given all the other noise about what it takes to make a contractual termination clause legally binding, one can be forgiven for overlooking the most basic rule: The language used must be clear.

The contractual termination clause considered in the case of McMichael v The New Zealand & Australian Lamb Company, 2018 ONSC 5422 (CanLII), about which I recently blogged for other reasons in my post, Choice of Law Provisions: Application of the Ontario Employment Standards Act to International Employees, clearly demonstrates this most basic of rules.

Saturday, 29 September 2018

Choice of Law Provisions: Application of the Ontario Employment Standards Act to International Employees

Can an employer and employee agree by contract that the laws of Ontario, Canada will apply to terms of their employment relationship, even if: (a) the employee works and is physically situated in in Los Angeles, California; and (b) the company is a New Jersey company with its head office in the State of Connecticut?

If the answer to that question is “yes”, do / can the employment standards set out in the Ontario Employment Standards Act, 2000 apply to such an employee?

Those were some of the questions put to the Honourable Justice James F. Diamond of the Ontario Superior Court of Justice in the case of McMichael v The New Zealand & Australian Lamb Company, 2018 ONSC 5422 (CanLII).

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)