Tuesday, 28 June 2016

The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?

Must the termination provision in an employment contract expressly employ the words “benefits” in order to be legally binding? Before the Court of Appeal for Ontario’s decision in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 (released June 28, 2016), I would have said “yes.” In fact, I said so rather emphatically in my earlier blog post “Benefits”: The Most Important Word in Ontario Employment Law. I mean, I declared the word “benefits” as “the most important word in Ontario employment law.” Perhaps I was mistaken.

Sunday, 26 June 2016

Bill C-243 - Expanding EI to Protect Women in the Workplace?

(c) istock/shironosov

Does a pregnant woman have the legal right to refuse to work in an environment that is unsafe to her as a pregnant woman? In 2014 the Supreme Court of Canada answered that question with a “yes” with its decision in the case of Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII). My summary of that case can be found in my earlier post SCC: Pregnant Women Have the Right to Refuse Unsafe Work Environments.

While the right to refuse to work in an unsafe work environment is now enshrined in law, what about payment? If a woman refuses to attend work because it may be harmful to her or her child, what does she do about money?

A Private Members bill introduced by backbench Liberal MP Mark Gerretsen, Bill C-243 (1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016) may have the answer.

Passage of Nearly a Decade’s Time Not a Barrier to Reinstatement: ONCA

There is a saying about the pace at which the wheels of justice move: they grind slowly. Perhaps no case better exemplifies that saying than that of Sharon Fair.

On December 15, 2003, Ms. Fair filed a human rights complaint, claiming that her employer, the Hamilton-Wentworth District School Board, had discriminated against her under the Ontario Human Rights Code by failing to accommodate her disability by placing her in a suitable alternate position.

The Human Rights Tribunal did not release its decision on the merits until 2012: Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII).

The decision on remedy, which has really driven the subsequent litigation, was not released until March 14, 2013: Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII). In 2013, I proclaimed that decision the number one case of importance to Ontario employment law, see Ontario Employment Law’s Top Five Cases – 2013 Edition.

The School Board sought judicial review of the Tribunal’s decision and in 2014 the Ontario Divisional Court released its decision upholding the decision. I blogged about that decision in the post Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination.

On May 31, 2016, nearly twelve and one half years after Ms. Fair filed her human rights complaint, the Court of Appeal for Ontario offered its opinion on the issue: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (CanLII).

Once again Ms. Fair prevailed. With respect to the fact that many, many years had passed between the start of Ms. Fair’s case and the Tribunal’s order that she be reinstated, the express decision of the Court of Appeal was that, “The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy.”

Saturday, 25 June 2016

Ontario Small Claims Court Refuses to Award Damages Absent Legal Wrong

There is no shortage of things that can leave one feeling as if he has been “wronged.” However, when it comes to a lawsuit, even one commenced in the Small Claims Court, unless that wrong is a legal wrong the court will not award the claimant any money.

In the area of employment law, there is similarly no shortage of things that can happen at work that can leave one feeling as if he has been wronged. This blog has frequently considered the issue of workplace harassment and the effects of the same. (See e.g. Claims of a Hostile Work Environment: Shields not Swords?)

Although it was not an employment law case, and is therefore a bit of a departure from this blog’s regular content, the decision of the Brampton Small Claims Court in Baker v Royal Bank of Canada, 2016 CanLII 30097 (ON SCSM) very aptly demonstrates the point made above: no legal wrong, no damages.

Saturday, 18 June 2016

Ontario Small Claims Court Judge Awards $8,000 in Costs Against Unsuccessful Wrongful Dismissal Claimant

One of the most commonly held beliefs about the civil justice system is that the losing party has to pay the winning party’s legal fees. While that belief is not entirely correct, it is not entirely wrong either.

Civil courts in Ontario have the right to award “costs” following a “proceeding.” Without wading too far into the semantics, “costs” is not the same thing as the amount that one has paid his or her lawyer, and “a proceeding” may be a trial, but it may also be something else.

The issue of costs in the Ontario Small Claims Court is both more simple and more complex. What makes matters easier is that the law prescribes that the basic amount of costs to which a successful party will be entitled following a trial is 15% of the amount claimed, plus actual disbursements. With a jurisdictional limit of $25,000, that means that if one sues for $25,000, then costs may typically be in the range of $3,750, i.e. 15% of the amount claimed.

Where things get complicated is that the law also says that judges have discretion to award more or less money for costs. The law also allows the judge to award costs to the losing party.

Decisions on costs from the Ontario Small Claims Court are rare. Judges rarely issue written reasons for the costs award, and even when judges do write out their reasons they are infrequently reported.

In 2015, I was involved in a Small Claims matter where the plaintiff alleged that she was wrongfully dismissed. I acted for the defendants in that case. On January 1, 2016, the Honourable Deputy Judge Lyon Gilbert dismissed the plaintiff’s case for reasons reported as Barton v Bowerman, 2016 CanLII 30100 (ON SCSM). Following the trial the judge invited the parties to make submissions on the amount of costs that should be awarded.

Following the presentation of written submissions, Deputy Judge Gilbert awarded the defendants, for whom I acted, $8,000.00 in costs. The court’s reasons can be found by clicking the following link: Costs Decision in Barton v Bowerman. Ottawa Small Claims Court. Court File No. 14-SC-130470. January 18, 2016.

Friday, 10 June 2016

Who’s the Boss? Determining One’s Employer at Ontario Law

“Who's the Boss?” was an American sitcom created by Martin Cohan and Blake Hunter, which aired on ABC from September 20, 1984 to April 25, 1992. The series starred Tony Danza as a retired major league baseball player who relocates to Fairfield, Connecticut to work as a live-in housekeeper for a divorced advertising executive, Angela Bower, played by Judith Light. Also featured were Alyssa Milano, Danny Pintauro and Katherine Helmond.

The title of the show refers to the clear role reversal of the two lead actors, where a woman was the breadwinner and a man (although he was not her husband) stayed at home and took care of the house. The show is credited for challenging contemporary stereotypes of Italian-American young males as macho and boorish and wholly ignorant of life outside of urban working-class neighborhoods, as Tony was depicted as sensitive, intelligent and domestic with an interest in intellectual pursuits.

Things have changed in 30 years.

In employment law, sorting out “who’s the boss” can sometimes be no easier, as the case of Sproule v Tony Graham Lexus Toyota , 2016 ONSC 2220 (CanLII) makes plain.