Monday, 31 December 2012

Sometimes "Never" means "Sometimes"

When must a bonus payment be included in the calculation of an employee’s salary for the purposes of calculating notice and severance entitlements? According to a recent decision from the Ontario Superior Court, Dimson v. KTI Kanatek Technologies Inc., 2012 ONSC 6556 (CanLII), only if it is made in the 12 weeks leading up to termination.

In a decision that still leaves this author scratching his head, the Honourable Justice Sidney N. Lederman held that a contractual provision that used the words “will not” sometimes means that the employer “will”. With respect, I believe His Honour misinterpreted the contractual language.

Friday, 28 December 2012

Top Five Cases of Importance to Ontario Employment Lawyers

December is often a month for list making, whether it be gifts one wants from Santa Claus (yours truly very nerdishly celebrated his receipt of an original copy of the 1960 Ontario Weekly Notes earlier this month), or Top X lists of Y things. In the spirit of the latter, here are my Top Five Cases of Importance to Ontario Employment Lawyers.

Sunday, 23 December 2012

Right to a Fair Opportunity on Probation


Christmas is time where some industries, such as retail, become exceptionally busy. In order to meet customer demand employers take on extra, seasonal staff. While some employers are upfront about the nature of the employment relationship, others inform potential employees that they will be employed on a trial, or "probationary" basis, and if things ‘work out’ they may be hired on full-time.

This blog has previously considered the issue of what it means to be on a “probationary period” at Ontario law in the post Probationary Periods and Notice . This post will look at employers’ rights to terminate employees on probation and employees’ rights to be afforded a fair opportunity to demonstrate their talents.

Monday, 17 December 2012

Was Clark Griswold Constructively Dismissed?

Here is a Christmas question: Was Clark Griswold constructively dismissed by his employer in National Lampoon’s Christmas Vacation? Watching the movie I was struck by two things: (1) how and why did I ever find this movie funny; and (2) this is a movie about constructive dismissal!

Sunday, 16 December 2012

Helping the National Farmers Union - Ontario


Regular readers of this blog will find this post a non sequitur; however I hope that some may also find it interesting. This past Friday I appeared before the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal on behalf of the National Farmers Union – Ontario. While the word “Union” may lead some to believe that my work was within the usual realm of labour and employment, the NFU-O’s application is not the sort of “union” work as it is understood in the collective bargaining context.

Wednesday, 5 December 2012

ONCA puts Dent in Dentist's Business


How enforceable is a non-solicitation agreement in an Ontario employment contract? According to a decision released earlier today by the Court of Appeal for Ontario, Smilecorp Inc. v. Pesin, 2012 ONCA 853, sometimes the answer is “very enforceable.”

Sunday, 2 December 2012

Is Having an Affair Just Cause?

Is having an affair at work "just cause" for dismissal from employment under Ontario's labour and employment laws?

The question was put to me by a colleague at the time of the David Petraeus scandal, and my initial impression was ‘likely only if precluded by an employee code of conduct, or something similar.’ The case of Reichard v. Kuntz, 2011 ONSC 7460 (CanLII), decided in December of 2011, provides some insight into the topic.