Friday 3 April 2015

Right to Refuse to Work Comes at a Cost to Employee

If an employee asserts his right, as guaranteed under the Ontario Employment Standards Act, 2000, not to work on a holiday or on a Sunday, must the employer provide him with a substitute for the hours he otherwise could have worked?

In a decision from the Ontario Labour Relations Board, Farinha v Highland Farms Inc, 2014 CanLII 17466 (ON LRB), the answer was “no.”

Employees and The Ontario Retail Business Holidays Act

As a general statement of law, it is illegal for a retail business to be open on a holiday. Of course, there are numerous exemptions to this rule; the most well-known of which being the ‘tourist area’ exemption. What many people may not know, however, is that the legal onus is on the store’s employees to restrain members of the public from buying goods.

Have employees been convicted of allowing the public to shop on a holiday? They have.

Sunday 22 March 2015

Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed

There is a saying in law that “bad facts make bad law.” Of course, the opposite is also true; good facts make good law. In a clear demonstration of the latter, the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM) demonstrates what happens when experienced counsel appears before an experienced trial judge with some pretty decent facts.

While Bray looked at a number of issues of importance to Ontario employment law, the four most interesting features are:

  1. The judge’s finding that an indefinite layoff is a constructive dismissal;
  2. The judge’s finding that he had no power to award damages for an act of reprisal following a complaint to the Ontario Ministry of Labour;
  3. The judge’s award of human rights damages in an Ontario Small Claims decision; and
  4. The judge’s award of punitive damages for a breach of the duty of honest performance created by the Supreme Court of Canada in Bhasin v. Hrynew, [2014] S.C.C. 71.

Saturday 14 March 2015

Addicted to Love – Is an Affinity for Internet Pornography a Disability?

In 1986, English rocker Robert Palmer suggested that you might as well face it, you’re addicted to love. What if, however, rather than being addicted to love, one is “addicted” to watching others make love, on the internet, using an employer-provided laptop? Has “addiction” to internet pornography been accepted by a Canadian human rights tribunal as a "disability"?

As an aside, the image above is taken from an advertising campaign for what is touted as the world’s largest online pornography site. More information on the advertising campaign can be found on AdWeek’s website here: AdWeek May 20, 2014, which is obviously safe for work.

Sunday 8 March 2015

Supreme Court of Canada Confirms that There are Two Paths to Constructive Dismissal

Under what set of circumstances can a non-unionized employee claim to have been constructively dismissed?

In a recent decision from the Supreme Court of Canada, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, Canada's top court confirmed that there are two possible ways by which an employee can be constructively dismissed.

Thursday 26 February 2015

“Bridging” Employee to Retirement is an Inappropriate Method by which to Calculate Reasonable Notice says ONCA

How are trial judges to calculate the amount of reasonable notice to which a suddenly unemployed employee is entitled? In yet another decision to reinforce the position that the analysis set out in Bardal v Globe and Mail remains the preeminent method by which to calculate the same, Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (CanLII), the Court of Appeal for Ontario disapproved one judge’s approach of calculating the amount of time it would take to ‘bridge’ the employee to an unreduced pension.

Sunday 22 February 2015

Terminations without Cause are not Automatically Unjust: Federal Court of Appeal

In a landmark decision, the Federal Court of Appeal has said that terminations without cause are not automatically “unjust” as defined by the terms of the Canada Labour Code. In “breaking the tie” between competing lines of jurisprudence, the Federal Court of Appeal in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII) has unequivocally said that the purpose of the “unjust dismissal” provisions of the Canada Labour Code is not to elevate non-unionized employees to the same status as those who are unionized. Put another way, there is no longer any security of employment under the Canada Labour Code. For those employees working in such industries, this is huge.

NOTE: This is a summary of a decision of the Federal Court of Appeal. This decision has since been overturned by the Supreme Court of Canada.