Sunday, 24 June 2018

Under Arrest and Suddenly Unemployed: The Intersection of Criminal Law and Employment Law

Can you be fired from your job simply for being arrested? That is to say, can your company fire you before the court determines whether or not you are actually guilty?

As is more fully explained on my page What is Wrongful Dismissal, the answer to that question is “yes” for those workers who are:

  1. working in the province of Ontario;
  2. subject to the laws of the province of Ontario, (on this point see Which Laws Apply?); and
  3. not subject to the terms of a collective bargaining agreement (i.e. not a member of a union).

And the reason why your company can fire you, or otherwise take job action against you, is because employers in Ontario are generally not required to demonstrate that they had “just cause” to terminate an employee’s employment. Workers across this province can, and do, lose their jobs every day without having done anything wrong.

The question of whether a worker should lose his or her job before the conclusion of a criminal matter is a separate question altogether. Comments on such question are welcomed below.

Saturday, 23 June 2018

Agreement to Provide Greater of Set Amount and ESA Minimums Legally Binding: ONCA

You know what’s fun? Trying to make sense of whether the court is going to give effect to a contractual termination clause. And, in the case of Amberber v. IBM Canada Ltd., 2018 ONCA 571, the Court of Appeal for Ontario was once again asked to do just that.

As set out by Justice Douglas K. Gray, sitting ad hoc, put it in the court’s introductory words to its reasons for decision:

The issue in this case is the enforceability of a termination clause in a written contract of employment. On a motion for summary judgment brought by the employer, Justice Hebner [Justice Pamela L. Hebner of the Superior Court of Justice] held that the termination clause was ambiguous, and did not clearly set out an intention to deprive the respondent of his entitlement to damages at common law. She held the clause to be unenforceable and dismissed the motion.

The employer, IBM, was successful on appeal.

Friday, 15 June 2018

Employers’ Vicarious Liability for Sexual Assault

“Is a taxi company liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part?” That was the question that the Court of Appeal for Ontario answered in the case of Ivic v. Lakovic, 2017 ONCA 446.

The court’s answer, which affirmed an answer from the Ontario Superior Court, was “no”.

Monday, 28 May 2018

You’re The Expert! Ontario’s Top Court Says Tradespeople Can’t Sue Homeowners Under Occupiers’ Liability Act

If a skilled tradesperson injures himself in the course of his employment, can he sue the homeowners of the property on which he was working pursuant to the provisions of the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2?

In the case of Osmond v. Watkins, 2018 ONCA 386, Ontario’s top court affirmed that the answer to that question is “no.”

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.