Sunday, 30 June 2013

Ambiguous Term May Invalidate Non-Competition Agreements

Is the term “United States of America” ambiguous? In a decision with serious potential ramifications for employment law, the Honourable Justice Ellen MacDonald has held that it is.

Like some other cases considered by this blog, TD General Insurance Co. v. Baughan, 2013 ONSC 333, is not strictly speaking an employment law case. The case concerned an Application brought by an automobile insurer, TD, for the court's declaration that the United States Virgin Islands is not part of the “United States of America.” In reply, the insured, Baughan, argued that the term “United States of America” is ambiguous.

The case is of relevance for those in the employment law world because it is not uncommon for a non-competition agreement to list the “United States of America” as a geographic area in which a former employee is prohibited from working. If the term is ambiguous, then arguably the term is unenforceable.

Saturday, 22 June 2013

Do You Have to Sign a Release to Get a Severance Package?

(c) istock/Sohel_Parvez_Haque

Do you have to sign a release to get a severance package in Ontario? For most employees who find themselves suddenly unemployed, a severance package is often accompanied by a "Full and Final Release Agreement." The employee is often told that, in order to receive the severance package he or she will have to sign the Full and Final Release.

Releases often contain language that essentially says that in consideration of the receipt of the amount offered the employee agrees to waive all claims for wrongful dismissal damages, Human Rights damages, claims for vacation pay and other statutory entitlements, and, less frequently, claims to the Workplace Safety and Insurance Board.

Is an employee legally obligated to sign such a document in order to receive his or her severance package? The answer is "no, but."

How Much Time Do You Have To Consider A Severance Package?

How much time do you have to consider a severance package under Ontario law? The answer can both simple and complex.

The simple answers are that you have as long as your employer gives you and that there is no time limit imposed by the Ontario Employment Standards Act, 2000. So, on the one hand, if your employer gives you a week, you arguably have a week. But, you can also have more time than what the employer says.

Where the issue arises for most employees who find themselves suddenly unemployed is when employers only give the employee a very short period to consider the offer, say one or two days. The offer usually comes with a time limit and a threat that if the offer is not accepted by the deadline, then the employer will only pay the employee the minimum amount required by law.

Two questions come emerge: What is the reasonable time limit? And can an employer arbitrarily impose any time limits?

Sunday, 9 June 2013

What Does it Mean to be a Volunteer under Ontario Employment Law?

What is a "volunteer" under Ontario employment law? The question is more complicated than it might first appear. Most people know what a volunteer is: it is someone who freely gives of their time, usually towards some altruistic purpose. But what is the difference between a "volunteer" and a wrongfully unpaid worker?

Saturday, 8 June 2013

Employers Must Sue for Indemnification Within Two Years: ONCA

What is the limitation period applicable to a claim for indemnification, where the right to indemnification is contained within an employment contract? According to the Court of Appeal for Ontario, two years from the date upon which the original claim is served on the employer.

As reported earlier by this blog in the post Limitation Period Applicable to a Claim for Indemnification in October of last year the Honourable Madam Justice Heidi Polowin of the Ontario Superior Court of Justice sitting at Ottawa found that the limitation period applicable to a claim for indemnification pursuant to an employment contract was not affected by section 18 of the Ontario Limitations Act, 2002.

In my January 2013 post, mentioned above, I argued that the decision was incorrect and contradicted two earlier decisions from 2010, one from the Court of Appeal for Ontario and one from the Superior Court.

Yesterday, June 7, 2013 the Court of Appeal released its decision, Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378. The Court of Appeal reached the same conclusion as did this author.

Sunday, 2 June 2013

Can Independent Contractors Get EI Benefits?

Can an independent contractor receive Employment Insurance ("EI", formerly "UI") benefits when he is fired from his position?

While the answer should be no, the real answer -like everything in law- is "it depends."