The Human Rights Tribunal of Ontario ordered an employer to pay $150,000.00 to a former temporary foreign worker after finding that the owner and principal of the company had engaged in a series of prolonged unwanted sexual solicitations and advances against her, including sexual assaults.
O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), now stands as the present ‘high-water mark’ for damages as compensation for injury to dignity, feelings and self-respect.
Are locally engaged employees of the Consulate General of Canada in Boston (i.e. those hired by the Canadian Government to work in the consulate, but who are not Canadian diplomats), who get injured in the course of employment, “entitled” to workers compensation benefits pursuant to the provisions of Canada’s Government Employees Compensation Act, RSC 1985, c G-5?
While that question may seem oddly specific, and it is, it is not only one of the questions that the Massachusetts Department of Industrial Actions was forced to answer in the case of Cynthia L. Merlini, it is the question on which I was summonsed to provide expert evidence.
On December 11, 2012, I testified as an expert witness in Ms. Merlini’s case. Following the hearing, the trial judge, Administrative Judge John G. Preston, found, on the basis of my testimony, that Ms. Merlini was not “entitled” to benefits from the Canadian Government as a locally engaged employee.
More recently, however, the Reviewing Board held that Ms. Merlini was entitled to benefits and for that reason, and for two other reasons specific to Massachusetts law, which will not be considered by this post, reversed the Order to grant Ms. Merlini benefits from the Massachusetts Workers Trust Fund.
For the reasons set out below, here is why I think the Reviewing Board got the “entitlement” question wrong.
How should the court account for a plaintiff’s duty to mitigate his damages following termination from employment, when summary judgment can be awarded before the expiry of the reasonable notice period?
More to the point, how can an employer ensure that the dismissed employee will take all reasonable steps to mitigate his damages if that dismissed employee is already in receipt of his pay in lieu of notice?
In the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (released April 16, 2015), the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) is no longer appropriate, given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.
Should employers be allowed to fire employees for their off-duty conduct? Although this blog has repeatedly considered the issue of whether employers can fire employees for their off-duty conduct (they can; see e.g. Comments on Facebook "Just Cause" for Dismissal), the question that this blog has not yet really considered is whether employers should be able to do so.
In posing this question I do not wish to be taken as suggesting that any particular set of actions should go without punishment. Moreover, I do not intend to suggest that perhaps an employee should never lose his or her job for off-duty conduct. Rather the questions are really these:
There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.
The common rebuttal to the slackerism “close enough” is the saying that “close only counts in horseshoes and hand grenades.” However, as the case of King v. 1416088 Ontario Ltd., 2014 ONSC 1445 (CanLII) aff’d 2015 ONCA 312 demonstrates, in cases where two or more employers are closely related, Ontario courts will be prepared to say “close enough” to ground a finding of joint and several liability.
In the perhaps never-ending battle between employers and employees with respect to the issue of the enforceability of employment contracts, score another victory for employees and their position that employment contracts must be crystal clear before the courts will uphold them.
In the case of Howard v Benson Group, 2015 ONSC 2638 (CanLII) the Honourable Justice A. Donald K. MacKenzie found the following contractual provision to be null and void and therefore legally unenforceable:
[8.1] Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario. [sic]
