Wednesday, 28 June 2017

Wrongful Dismissal Cases are Appropriate for Resolution by way of Application: ONSC

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A frequent criticism of the Canadian judicial system is that it moves too slowly. Indeed, as the Supreme Court of Canada recently observed in its now infamous decision in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27 there has been a “culture of complacency towards delays” in the justice system for years. And while the Supreme Court’s comments were directed towards the criminal system in that case, most would tend to agree that things are no better in the civil bar.

And so what is one to do when he finds himself with a simple, straight-forward wrongful dismissal case, where the only points in issue are: (1) Is this employment contract dispositive of my entitlements to reasonable notice, and (2) If the answer to that question is no, then what is the notice period?

Prevailing wisdom over the past seven or so years has been that the dismissed party should start an action, and then bring a motion for summary judgment. (See the comments of Justice Hackland in Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII): I agree with Perell J.’s observation in Adjemian v. Brook Crompton North America, [2008] O.J. No. 2238 (Ont. S.C.J.) that summary judgment may be an appropriate and optimal way to proceed in cases involving the determination of reasonable notice periods.)

But, as will be considered below, motions for summary judgment, especially in cases where the amount claimed is less than $100,000, can have their drawbacks and limitations.

Is there a better way yet still?

I believe there is. And, in the case of Farah v EODC Inc., 2017 ONSC 3948 (CanLII), the Ontario Superior Court of Justice endorsed such an approach as appropriate.

Friday, 23 June 2017

Can Employers Opt-In to the Common Law to Opt-Out of the Canada Labour Code?

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Given the considerable effort that has been expended as of late in trying to have employees opt out of the common-law regime of reasonable notice, see e.g. my discussion of termination clauses in my post Will Wood Finally Answer the Question of Benefits? There’s Hope., it is almost unfathomable that employers would even consider attempting to contract in to such a regime. However, when one considers the remedies to which employees employed pursuant to the provisions of Canada Labour Code can have access, a payment in lieu of reasonable notice would be the lesser of two evils.

It now settled law that the employment of non-managerial employees, employed for more than 12 consecutive months, who are employed pursuant to the provisions of Canada Labour Code cannot be terminated absent the employer showing just cause for termination: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII), about which I wrote in my post No Cause? Then No Dismissal for Non-Unionized Federal Employees – The Supreme Court of Canada Shakes Up Canadian Employment Law. Moreover, as the more recent case of Randhawa v Bank of Nova Scotia, 2017 CanLII 4774 (ON LA) demonstrates, where a complaint of unjust dismissal under the Canada Labour Code is upheld, the default remedy must be reinstatement. Reinstatement is much more intimidating than a severance payment.

And so the question is begged: Can employees contractually - and preemptively - opt out of the unjust dismissal regime established by the Canada Labour Code in favour of the common-law regime of reasonable notice and wrongful dismissal?