Requirement to Purchase Shares Signalled Employer’s Intention to Create Long-Term Employment Relationship: ONSC

How does requiring an executive to purchase shares in his employer’s company affect the employee’s reasonable notice period in the event that his employment is terminated without cause? According to the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice, the answer is that it tends to length the notice period.

In the case of Rodgers v. CEVA, 2014 ONSC 6583 (CanLII), Mr. Justice Taylor held that, “Based on the required investment in [the employer] I find there was at least an implied representation that the plaintiff was about to embark upon a long-term employment relationship with [his employer.]

Judge Finds it Reasonable for Employee to Refuse to Return to "A Good Place to Work"

Under what set of circumstances will an Ontario Superior Court judge say that it is “reasonable” for an employee to refuse to return to work for the employer that dismissed her as a means of mitigating her damages?

The law concerning the duty to mitigate is rather clear; employees who are dismissed by their employers have a duty to mitigate their damages and may be required to return to work for the employer that dismissed them in order to do so. However, as the Supreme Court of Canada observed in the case of Evans v. Teamsters Local Union No. 31, [2008] 1 SCR 661, 2008 SCC 20:

[30] The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer, it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.

But what exactly is “an atmosphere of hostility, embarrassment or humiliation”? In the case of Turner v. Inndirect Enterprises Inc. (2009), 2009 CarswellOnt 9666, [2009] O.J. No. 6345, 87 C.C.E.L. (3d) 306 (ON SC) affd 2011 ONCA 97 the Honourable Justice David Salmers said that a culmination of seemingly common factors created such an atmosphere. It is an interesting read.

"Don't Forget: You're Here Forever" - Or Are You?

"Don’t forget: you’re here forever." Those five words (seven if you are particular) are said to occupy the plaque above Homer Simpson’s workstation. As regular, and one has to admit older, fans of the iconic television show will remember, in the episode “And Maggie Makes Three”, which originally aired on January 22, 1995, Homer’s boss, Mr. Burns, affixed said plaque above Homer’s workstation after our hero was forced to crawl back to the Springfield Nuclear Power Plant in search of his old, and much despised, job. And while Homer makes the best of the situation, covering certain parts of the plaque with photos of his infant daughter Maggie such that the plaque reads “Do it for her”, the plot point raises an interesting question about employment law in Ontario: Is there such a thing as a job “forever”?

One of the most common misconceptions about employment law in Ontario is that so long as an employee continues to satisfactorily perform his or her job, that employee cannot be fired. As this blog has frequently stated, that simply is not the case and employers generally have the right to terminate an employee’s employment for any reason at all, including no reason. (There are, of course, exceptions, such as the fact that an employer cannot dismiss an employee for a reason prohibited by statute; but those exceptions are few.)

But what if the employee’s employment contract says that the employer “shall not” dismiss the employee? Certainly that would entitle the employee to a job for life. And if the employer did, in fact, dismiss the employee, then she would be entitled to the wages that she would have earned for the rest of her life, no?

A 2003 case from the Court of Appeal for Ontario, authored by the Honourable Justice Rosalie Abella, who now sits on the Supreme Court of Canada, Foreman v. 818329 Ontario Limited, 2003 CanLII 57401 (ON CA) held that the contract term “[The employer] shall not dismiss [the employee]” did not, in fact, entitle the employee to a job for life.

Court Says Age Limit on Receipt of WSIB Loss of Earnings Benefits is Constitutional

Is the limit on the receipt of WSIB loss of earnings benefits unconstitutional because is discriminates on the basis of age? According to a decision of the Ontario Divisional Court, Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289, the law is just fine.

Court of Appeal says Group LTD Policies are not "Business Agreements"

Is a group policy of insurance a “business agreement” for the purpose of ss. 22(5) and (6) of the Limitations Act, 2002? In a reversing an earlier decision of the Superior Court of Justice, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONSC 1523, considered by this blog in the post Time Limit to Sue for LTD benefits, the Court of Appeal for Ontario in the case of Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922 has clearly said that such contracts are not.

Comments on Facebook "Just Cause" for Dismissal

Can posts to one’s Facebook profile about a co-worker be grounds for “just cause” for dismissal? In yet another case from the labour world to consider this subject, United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA), Arbitrator Laura Trachuk has said “yes”.

Stated Intention to Retire May Reduce Wrongful Dismissal Damages

Can publicly announcing one’s intention to retire from employment serve to reduce an employee’s entitlement to wrongful dismissal damages if the employee is later terminated without cause?

According to a decision from the Ontario Superior Court of Justice, Kimball v Windsor Raceway Inc, 2014 ONSC 3286, an employee’s stated intention to retire and therefore not look for new employment following termination "may well be relevant in assessing what constitutes reasonable notice.”