Sunday, 29 July 2012

Deemed Dismissal Results in Award of Common Law Damages

To many the question “Have I been fired?” may seem a little ridiculous. Typically one knows whether or not he has been terminated. And although usually the termination itself comes as a surprise, there is little question as to certainty of the situation.

And yet, in late 2011 a case came before the Court of Appeal for Ontario that asked the question of whether or not an employee was entitled to common law damages following his “deemed” dismissal from employment. (NB: for a description of what is meant by “common law damages” see my definition in Explaining Wrongful Dismissal under Ontario Employment Law)

Friday, 27 July 2012

Verbal Contracts – The Chris Roussakis Matter

Not every contract needs to be in writing. As one learns in first year law school, there are three necessary elements in order for a contract to be formed: an offer, the acceptance of that offer, and consideration for the agreement (i.e. both sides have to get something out of the deal.) Note that nowhere in there is it set out that the offer or the acceptance thereof must be in writing. To many this scenario is what is known as “verbal contracts;” in law one can simply omit the word “verbal.”

The Chris Roussakis matter (stories here and here) demonstrates the case at hand. I represented Mr. Roussakis in his bid for compensation.

Monday, 23 July 2012

The Right to be Free from Harassment... Online

In an earlier post (You Can’t Do That on the Internet) I canvassed what some Ontario Labour Relations Tribunals have done with respect to online conduct. In a July 2012 decision, Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII), the Human Rights Tribunal of Ontario weighed in on the issue.

Tuesday, 17 July 2012

Ontario Recognizes Torts of Invasion of Privacy

When the Court of Appeal for Ontario released its decision in the case of Jones v. Tsige, 2012 ONCA 32 earlier this year, many commented upon how Ontario law had finally recognized the tort of "invasion of personal privacy."

However, saying that the Court of Appeal recognized “the tort” is not completely accurate. What the Court of Appeal recognized was that there are, in fact, four torts that fall under the umbrella of ‘invasion of privacy.’

Saturday, 14 July 2012

The Requirement to Maintain Disability Benefits on Dismissal

As regular readers of this blog may know, I have a certain affinity for the decision of the late Justice Echlin in Brito v. Canac Kitchens, 2011 ONSC 1011 (CanLII), affirmed by the Court of Appeal for Ontario, 2012 ONCA 61.

The reason why the decision in Brito is so important is that Justice Echlin ordered an employer who had provided to its employees a group insurance plan to essentially stand in the disability insurer’s shoes when the employee was dismissed and the employer made no arrangements for the dismissed employee to maintain that insurance coverage beyond the statutory notice period; a decision that cost the employer nearly $200,000 in what was otherwise a modest wrongful dismissal case.

Thursday, 12 July 2012

Ontario Human Rights Damages to Dismissed Breast Cancer Employee Affirmed

One may recall the story of Elsa Torrejon, who in 2009 was fired from her employer, Weston Property Management, after disclosing that she had breast cancer. The Ontario Human Rights Tribunal ordered Weston to pay Ms. Torrejon $20,000 in general damages for injury to dignity, feelings and self respect and $2,640 in special damages for loss of employment income.

Now, if Weston’s behavior was not bad enough – terminating an employee simply because she discloses a diagnosis – Weston sought judicial review of the Tribunal’s decision from the Ontario Divisional Court. In reasons for decision released March 30, 2012, 1147335 Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (CanLII), Justices Jennings, Kent and Sanderson affirmed the Tribunal’s decision awarding a further $7,000 in costs.

Sunday, 8 July 2012

How Much Time Do You Have to Start a Lawsuit for Wrongful Dismissal in Ontario?

How long do you have to start a claim for wrongful dismissal under Ontario law?

While the default (and safe) answer would be two years from the date of dismissal, a 2010 decision from the Ontario Superior Court demonstrates that that may not always be the case.

Friday, 6 July 2012

Guarding the Duty to Mitigate

A story came out of Florida this week about a lifeguard who was terminated (read: fired) for saving a drowning man “outside his zone.” Click this link for The Globe & Mail's story

Some have asked whether his actions would be “just cause” for dismissal. While I have no intention of weighing in on what would or would not rise to the level of “just cause” in Florida, where concerns about litigation seem much higher than Ontario, the case does present an interesting case study on the issue of “mitigation.”

Wednesday, 4 July 2012

Social Media and the Rule against Solicitation

As someone who both practices employment law and blogs, tweets, whatever verb Facebook becomes, a question that is often put to me by persons contemplating moving to a new employer is whether that person is entitled to change the name of his or her employer on various social media sites.

The answer is more complicated than it would first appear; and, I would submit, also remains unanswered by Ontario courts. Nonetheless, below one will find the musings of this passive observer.

Careless but not Disentitled

Just cause for termination is a thorny issue. Employers often wish to advance it as a means of reducing (hopefully to nil) their obligations to an employee on termination. However, under Ontario employment law, one can be both dismissed for just cause and entitled to termination (read: notice and severance) pay.

The 2011 case of Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538 (CanLII), canvasses the issue nicely.