Saturday 15 March 2014

ONCA: No Duty to Mitigate Unless Offer Made After Termination

Where an employer’s restructuring serves a legitimate business interest and is not merely a pretext for terminating an employee, should that employee be obliged, as part of his duty to mitigate, to return to work for the same employer? According to a recent decision from the Court of Appeal for Ontario, Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177, the answer is unclear. What is clear, however, is that in order for an employer to avail itself of the argument that an employee has failed to mitigate his damages by returning to work for the dismissing employer, (see: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), [2008] 1 SCR 661,) the employer must offer the alternate position to the dismissed employee after termination, not before.

Not All Employees are Entitled to Severance Pay

A common misconception among both employers and employees is that anyone who is fired from his or her job in Ontario is entitled to severance pay; that simply is not the case. However, saying that a dismissed employee is not necessarily entitled to “severance” pay does not mean that the employee is not entitled to anything. What employees are entitled to varies.

Sunday 9 March 2014

Can I get EI if I get Fired After Maternity Leave?

Can someone who gets fired shortly after returning from maternity leave receive Employment Insurance (EI) benefits?

The short answer is currently “no.” Although the answer depends on how long after returning to work the employee finds herself suddenly unemployed. (While it is legally permissible for men to take parental leave and while it is possible for those men to lose their job shortly after doing so, the reality is that this situation is far more common for women than it is for men. While the law is gender neutral and men can be effected by this law in the same way that women are, this post will be written from the perspective of new mothers.)

Saturday 1 March 2014

The Flu is Not a Disability: HRTO

Is having the flu a “disability” under the Ontario Human Rights Code? According to a decision from the Human Rights Tribunal of Ontario, the body responsible for enforcing Ontario’s Human Rights Code, the answer is no.

Sunday 9 February 2014

Proving Wrongful Dismissal Damages

In order to receive an award of wrongful dismissal damages, a dismissed employee must prove that he or she suffered damages as a result of his or her dismissal from employment. While that statement of law may seem simple and straightforward, it was the primary reason the Ontario Divisional Court set aside a $21,475 Small Claims judgment in a recent decision: Garcia v. 1162540 Ontario Inc., 2013 ONSC 6574 (CanLII)

Saturday 1 February 2014

How the Law Blog for the Suddenly Unemployed became Labour Pains

On January 29, 2013, the law blog for the suddenly unemployed was re-branded “Labour Pains: an employment law blog for employers and employees.” For those who are interested and for those who will permit me a bit of self-indulgence, here are the hows and whys behind the name change.

Friday 24 January 2014

Supreme Court of Canada Provides Guidance on Summary Judgment: What it Means for the Suddenly Unemployed

After four years of waiting, the Supreme Court of Canada has weighed in on the proper interpretation and approach to Ontario’s Summary Judgment procedure. The decision is a game-changer for litigation.

In its unanimous decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), authored by the Honourable Justice Karakatsanis, the Court has clearly said that the preferred route for disposition of lawsuits is not the trial as we know it.

For the reasons set out below, it is this author’s opinion that this decision will undoubtedly have a positive influence on the resolution of cases for the suddenly unemployed.